United States District Court, E.D. Louisiana
ANGIE SERRANO, ET AL.
OTIS ELEVATOR COMPANY, ET AL.
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
the Court is plaintiffs Angie Serrano and Nelly Briceno's
motion to remand this case to state court. For the following
reasons, plaintiffs' motion to remand is denied.
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.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.
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. 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. Plaintiffs' suit alleged that
defendants' negligence was the cause of the elevator
accident and their injuries. On October 12, 2016, defendants
Canal Place and Interstate removed the case to this Court on
the basis of diversity jurisdiction.
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
REMAND BASED ON LACKING DIVERSITY JURISDICTION
Improper Joinder Standard
remand motion is governed by the standard for improper
joinder, as set forth below.
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.
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
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.
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
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.
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.
Louisiana Workers' Compensation Act
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. ...