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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN RE: IMPRELIS HERBICIDE MARKETING,  
SALES PRACTICES AND PRODUCTS LIABILITY  
LITIGATION  MDL No. 2884  
11-md-02884  

THIS DOCUMENT APPLIES TO: Case No. BORDAS V. E.I. DUPONT DE NEMOURS 2: 12-cv-06446 AND COMPANY, et al.
MEMORANDUM PRATTER,J. JANUARY 30, 2013
Plaintiffs Linda Bordas and James Bordas, Jr. filed this action in West Virginia's Ohio County Circuit Court against E.I. duPont de Nemours & Co. ("DuPont"); Terry Pugh, d.b.a. St. Clair Lawn Care ("St. Clair"); and Brett Conner, seeking damages for injuries to the Bordases' property allegedly caused by DuPont's herbicide, Imprelis. DuPont and St. Clair removed the case to the U.S. District Court for the Northern District ofWest Virginia, claiming that the Bordases had fraudulently joined Mr. Conner to defeat diversity jurisdiction. The case was then transferred to this Court, as part ofthe pending multidistrict litigation involving Imprelis.
Plaintiffs have moved to remand the case to West Virginia state court, claiming that Mr. Conner was not fraudulently joined. DuPont opposes Plaintiffs' motion. Because West Virginia has not recognized any negligence claim at all similar to that which Plaintiffs attempt to bring against Mr. Conner, the Court agrees with DuPont that Mr. Conner was fraudulently joined and will deny Plaintiffs' motion and dismiss Mr. Conner from the case.
BACKGROUND
According to Plaintiffs' Complaint, in October of2004, Mr. and Mrs. Bordas purchased a parcel ofland that included mature woodlands, demolished the existing home on the property, and built their dream home in the midst of a number ofbeautiful old-growth trees. In the spring of 2011, Mr. Conner, a lawn care professional working for the Bordases, recommended that herbicide be applied at the property and suggested that the Bordases hire St. Clair for the job. They did so, and in late spring 2011, St. Clair applied Imprelis to the Bordas lawn. Within weeks, trees on the property began to show signs ofdamage, and eventually several trees died, including trees that had been planted later to take the place of dead trees.
Plaintiffs bring one claim against Mr. Conner, alleging that he was negligent because he did not ensure that only safe herbicides were used on their property, did not inform them that lmprelis is unsafe even when used in accordance with its label, did not disclose the risks of applying lmprelis, and did not use due care generally. They allege that Mr. Conner knew or should have known that the Bordases did not have the expertise to care for their lawn appropriately and were relying on him, which created a duty to recommend only a lawn care professional who would apply safe herbicides.
Plaintiffs do not allege in their Complaint that Mr. Conner knew or should have known that St. Clair planned to use lmprelis, that he knew that St. Clair applied unsafe herbicides in the past, that he knew or should have known in the spring of2011 that Imprelis would harm non

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