United States District Court, E.D. Louisiana
DIANE DABOVAL, et al.
MILLER TRANSPORTERS, INC., et al., SECTION
NANNETTE JOLIVETTE BROWN, District Judge.
Before the Court is Plaintiffs Diane Daboval and Daniel Daboval's (collectively, "Plaintiffs") "Motion to Remand." Having considered the motion, the memoranda in support and in opposition, the record, and the applicable law, the Court will grant the motion and remand this matter to the 34th Judicial District Court for the Parish of St. Bernard, Louisiana.
This lawsuit arises out of an accident between an 18-wheeler and a motorcycle which occurred on St. Bernard Highway (the "Highway") in Chalmette, Louisiana on January 12, 2013. Defendant Terry Dunn ("Dunn") was the operator of a 2011 Kenworth T660 18-wheeler owned by Defendant Miller Transportation, Inc. ("Miller"). Miller is insured by Greenwich Insurance Co. ("Greenwich"). Plaintiffs allege that Dunn attempted to make an illegal left hand "U-turn" from the right lane of travel, and that this maneuver resulted in a collision with motorcyclist Maxime L. Daboval, Jr. that caused his death.
Plaintiffs filed this lawsuit on June 11, 2013 in the 34th Judicial District Court for the Parish of St. Bernard, Louisiana. In the Petition, Plaintiff brings separate causes of action for negligence against Dunn, Miller and the Louisiana Department of Transportation and Development ("DOTD"). On June 2, 2014, Dunn, Miller, Greenwich (collectively, "Removing Defendants") removed the case to federal district court, alleging that DOTD was fraudulently joined in order to defeat federal subject matter jurisdiction. They contend that their removal was filed within 30 days of receiving discovery responses from DOTD and an expert report that "indicated an absence of DOTD liability in this case."
Plaintiffs filed the pending motion to remand on September 23, 2014,  and Defendants filed a memorandum in opposition on November 4, 2014. Also on November 4, 2014, DOTD filed a "Motion/Brief of Clarification, " which was marked as deficient by the Clerk of the Court because it was improperly captioned and formatted. DOTD was given until November 12, 2014 to remedy the deficiency, but failed to do so. Accordingly, the DOTD's pleading was terminated. Similarly, Removing Defendants filed a supplemental memorandum on November 11, 2014. This briefing was also marked as deficient by the Clerk of the Court, this time because Removing Defendants failed to obtain leave from the Court prior to filing the document. Removing Defendants were given until November 19, 2014 to remedy the deficiency, but failed to do so. Accordingly, the only pleadings properly before the Court are Plaintiffs' "Motion to Remand" and Removing Defendants' first memorandum in opposition.
II. Parties' Arguments
A. Plaintiffs' Arguments in Support of Remand
Plaintiffs argue that there is a reasonable possibility that DOTD will be found negligent because it knew or should have known that commercial vehicles were crossing the Highway at the location of the accident. According to Plaintiffs, the accident occurred near the St. Bernard Terminal, within "very close proximity of oil and chemical plants along the Highway." Plaintiffs contend that the space required for a "U-turn" of an 18-wheeler with a 43.5 foot trailer is more than 90 feet, but that two experts have inspected the accident site and found that:
the total distance from the north shoulder edge available for the U-turn' used by defendant in this accident measured only about 75 feet and the total station data included in the accident report is about 70 feet to the south road edge line. Segments of median cross over curbing show depression and damage apparently from heavy commercial vehicles attempting to use the crossover cuts.
According to Plaintiffs, the "damaged condition of the curbing put DOTD on notice that a U' turn was unsuitable for the commercial vehicles that frequent the area and that the use of this U' turn by such vehicles creates an unreasonable risk of harm." Plaintiffs argue that DOTD failed to erect signs to indicate to unfamiliar drivers that there was an alternative, safe turn-around in the vicinity. Based on these facts, according to Plaintiffs, there is a reasonable possibility that DOTD will be found negligent and assigned some liability for accident.
B. Removing Defendants' Arguments in Opposition to Remand
In opposition to remand, Removing Defendants first argue that DOTD is an "arm of the state, " and is accordingly not considered a citizen of Louisiana for purposes of diversity jurisdiction. They contend that if DOTD does not waive its sovereign immunity, this Court has subject matter jurisdiction over this action because DOTD was fraudulently joined. Next, according to Removing Defendants, remand is only appropriate if Plaintiffs produce sufficient evidence to show a reasonable probability of recovery against DOTD. Plaintiffs cannot make this showing, Removing Defendants argue, because there was no vice or defect in the roadway, and because the accident at issue was caused solely by the actions of the two drivers involved.Further, they allege that Plaintiffs have failed to establish that the intersection at issue constituted an unreasonable risk of harm absent a U-turn sign. Finally, according to Removing Defendants, ...