United States District Court, E.D. Louisiana
JOYCE P. RUSHING
WAL-MART STORES, INC. ET AL., SECTION: R
ORDER AND REASONS
SARAH S. VANCE, District Judge.
Before the Court is plaintiff Joyce Rushing's Motion to Remand to State Court. For the following reasons, the Court denies plaintiff's motion.
This dispute arises out of injuries sustained by plaintiff Joyce Rushing at defendant Wal-Mart Stores, Inc.'s location in Hammond, Louisiana. Plaintiff alleges that Wal-Mart and its general manager, Nolan Baker, are liable under theories of negligence, respondeat superior and vicarious liability for injuries plaintiff allegedly sustained when two cases of drinks fell on her head as she attempted to remove a case of drinks from a shelf at the Wal-Mart location.
Plaintiff filed suit in the 21st Judicial District Court for the Parish of Tangipahoa on January 5, 2015. On January 29, 2015, Wal-Mart and Baker removed the suit to federal court. Although complete diversity is lacking because plaintiff and Baker are Louisiana citizens for the purposes of diversity jurisdiction, Wal-Mart asserts that plaintiff improperly joined Baker because it has no arguable or reasonable basis on which to state a cause of action against him. Plaintiff has filed a motion to remand, contending that it properly joined Baker and that because complete diversity does not exist, the Court lacks jurisdiction.
II. LEGAL STANDARD
Plaintiff's remand motion is governed by the standard for improper joinder, as set forth below.
A defendant may generally remove a civil action filed in state court if the federal court has original jurisdiction over the action. See 28 U.S.C. § 1441(a). The removing party bears the burden of showing that federal jurisdiction exists. See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). In assessing whether removal was appropriate, the Court is guided by the principle, grounded in notions of comity and the recognition that federal courts are courts of limited jurisdiction, that removal statutes should be strictly construed. See, e.g., Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Accordingly, "[a]ny ambiguities are construed against removal." Id.
For diversity jurisdiction to exist, the amount in controversy must exceed $75, 000, and there must be complete diversity between plaintiffs and defendants. See 28 U.S.C. § 1332(a); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). Here, the parties do not dispute that the amount-in-controversy-requirement is met, but they disagree about whether the complete diversity requirement is satisfied. As noted above, plaintiff has Louisiana citizenship as does defendant Baker, which would ordinarily destroy complete diversity. See McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir. 2004). And when a nondiverse party is properly joined as a defendant, no defendant may remove the case under 28 U.S.C. § 1332. But a defendant may remove by showing that the nondiverse party was joined improperly. Smallwood v. Ill. Cent. R.R. Co., 352 F.3d 220, 222 (5th Cir. 2003).
The burden of demonstrating improper joinder is a heavy one, as the doctrine is a narrow exception to the rule of complete diversity. Id. A defendant may establish improper joinder by showing either "(1) actual fraud in pleading jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court." Id. at 222-23. Here, there is no allegation that plaintiff fraudulently pleaded jurisdictional facts; accordingly, only the second prong of the improper joinder test is at issue. To determine whether the individual defendants were improperly joined under the second prong, the Court asks whether "there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved." Id. at 223 (quoting Jernigan v. Ashland Oil Inc., 989 F.2d 812, 816 (5th Cir. 1993)) (internal quotation marks omitted).
"In analyzing whether a plaintiff has demonstrated a reasonable possibility of recovery, the district court may conduct a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant.'" Menedez v. Wal-Mart Stores, Inc., 364 F.Appx. 62, 69 (5th Cir. 2010) (per curiam) (quoting Smallwood v. Ill. Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004)). The scope of the inquiry for improper joinder, however, is even broader than that for Rule 12(b)(6) because the Court may "pierce the pleadings" and consider summary judgment-type evidence to determine whether the plaintiff has a basis in fact for his or her claim. Smallwood, 352 F.3d at 223 n.8 (citing Travis v. Irby, 326 F.3d 644, 648-49 (5th Cir.2003)); see also Menendez, 364 F.Appx. at 69. In conducting this inquiry, the Court must "take into account all unchallenged factual allegations, including those alleged in the complaint, in the light most favorable to the plaintiff." Travis, 326 F.3d at 649. So, too, must the Court resolve all contested issues of fact and all ambiguities of state law in favor of the nonremoving party. Id; Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 813 (5th Cir. 2011).
In determining whether plaintiff can establish a cause of action against the non-diverse party in this case, the Court looks to Louisiana law setting forth the circumstances under which a corporate employee can be held individually liable for injuries to third persons. In Canter v. Koehring Co., 283 So.2d 716 (La. 1973), superseded by statute on other grounds, La. Rev. Stat. § 23:1032, the Louisiana Supreme Court held that an employee may be personally liable for an invitee's injury on store premises only if four distinct criteria are satisfied:
1. The principal or employer owes a duty of care to the third person..., breach of which has caused the damage ...