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Serrano v. Otis Elevator Co.

United States District Court, E.D. Louisiana

February 6, 2017


         SECTION “R” (4)



         Before the Court is plaintiffs Angie Serrano and Nelly Briceno's motion to remand this case to state court.[1] For the following reasons, plaintiffs' motion to remand is denied.

         I. BACKGROUND

         On April 3, 2016, plaintiffs Angie Serrano and Nelly Briceno were injured at the Westin New Orleans Canal Place hotel when the service elevator in which they were riding malfunctioned and dropped multiple floors. At the time, plaintiffs were employees of Staff Pro Workforce, LLC, which was under contract to provide contract workers to the hotel.[2]According to plaintiffs, the drop was forceful enough that Briceno broke her leg and a vertebrae in her back, and Serrano was thrown to the ground where she struck her head.[3]

         On August 19, 2016, plaintiffs filed suit in the Civil District Court for the Parish of Orleans. Plaintiffs named as defendants the Otis Elevator Company, Interstate Management Company, LLC (the entity that provided hotel management services for the hotel), Canal Place Borrower, LLC (the owner of the hotel, d/b/a The Westin New Orleans Canal Place), and Dacia Paz.[4] Paz was plaintiffs' supervisor at the time of their injuries, and plaintiffs alleged that they notified Paz of similar incidents of elevator malfunctions before they were injured.[5] Plaintiffs' suit alleged that defendants' negligence was the cause of the elevator accident and their injuries.[6] On October 12, 2016, defendants Canal Place and Interstate removed the case to this Court on the basis of diversity jurisdiction.[7]

         Plaintiffs now move to remand, contending that incomplete diversity of the parties renders this Court without subject matter jurisdiction. Indeed, it is undisputed that Serrano and Briceno, along with defendant Paz are Louisiana citizens for jurisdictional purposes. Removing defendants Canal Place and Interstate argue that complete diversity exists because Paz was improperly joined and therefore her citizenship should be ignored.[8]


         A. Improper Joinder Standard

         Plaintiffs' 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); Neal v. Kawasaki Motors Corp., No. 95-668, 1995 WL 419901, at *4 (E.D. La. July 13, 1995). Though the Court must remand to state court if at any time before final judgment it appears that it lacks subject matter jurisdiction, the Court's jurisdiction is fixed at of the time of removal. 28 U.S.C. § 1447(c); Doddy v. Oxy USA, Inc., 101 F.3d 448, 456 (5th Cir. 1996).

         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. Indeed, Serrano, Briceno, and Paz have Louisiana citizenship, 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. Co., 352 F.3d 220, 222 (5th Cir. 2003) (Smallwood I).

         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) the inability of the plaintiff to establish a cause of action against the nondiverse defendant. The test for fraudulent joinder is “whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.” Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 574 (5th Cir. 2004) (Smallwood II). The possibility must be reasonable, not merely theoretical. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002).

         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 Fed. App'x 62, 69 (5th Cir. 2010) (per curiam) (quoting Smallwood II, 385 F.3d at 573).

         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 I, 352 F.3d at 223 n.8 (citing Travis v. Irby, 326 F.3d 644, 648-49 (5th Cir. 2003)). See also Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 542 (5th Cir. 2004). 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 ambiguities of state law in favor of the nonremoving party. Id. Further, the Court must take care not to “mov[e] beyond jurisdiction and into a resolution on the merits.” Smallwood II, 385 F.3d at 574.


         Defendants argue that plaintiffs' joinder of Paz was improper because, according to defendants, Paz has tort immunity under the Louisiana Workers' Compensation Act (LWCA), La. Stat. Ann. § 23:1032, et seq., and therefore there is no reasonable basis for the Court to find that plaintiffs can recover against the in-state defendant Paz. Defendants do not contest that a 12(b)(6)-type inquiry would reveal a reasonable basis for recovery, but instead ask the Court to “pierce” plaintiff's pleadings and conduct a summary inquiry to determine Paz's tort immunity under the LWCA. Smallwood II, 385 F.3d at 573.

         A. Louisiana Workers' Compensation Act

         The LWCA provides the exclusive remedy for an employee injured by the negligent acts of his or her co-employees or employer when those injuries arise out of and in the course of employment. See La. Stat. Ann. §§ 23:1031 and 23:1032; Vallery v. Southern Baptist Hosp., 630 So.2d 861, 863 (La.App. 4 Cir. 1995); Chafflin v. John H. Carter Co., Inc., No. 96-2127, 1998 WL 19624, at *7 (E.D. La. ...

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