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Newcomb v. DG Louisiana L.L.C.

United States District Court, W.D. Louisiana, Alexandria Division

November 20, 2017

RITA NEWCOMB
v.
DG LOUISIANA, L.L.C., et al.

          MEMORANDUM ORDER

          Joseph H.L. Perez-Montes, United States Magistrate Judge

         Before the Court is a Motion to Remand filed by Plaintiff (Doc. 12). Defendants oppose the motion, arguing Defendant Brandy Wilkes was improperly joined (Doc. 17). The Court agrees. Plaintiff's Motion to Remand (Doc. 12) is denied.

         I. Background

         Plaintiff Rita Newcomb (“Newcomb”) filed a petition for damages in a Louisiana state court. Newcomb claims she suffered personal injuries resulting from a trip and fall when she was shopping in a Dollar General store on May 9, 2016 (Docs. 1, 12). The petition was removed by Defendants DG Louisiana, L.L.C. d/b/a Dollar General (“DG Louisiana”) and Brandy Wilkes (“Wilkes”) (employed at Dollar General) (Doc. 1). Defendants premise federal jurisdiction on diversity of citizenship.

         Newcomb is a citizen of Louisiana, DG Louisiana is a citizen of Tennessee, and Wilkes is a citizen of Louisiana (Doc. 10). Defendants allege that Wilkes, an employee of Dollar General, was improperly joined (Doc. 1). Defendants argue that Newcomb does not have a claim against Wilkes under Louisiana law.

         Newcomb filed a Motion to Remand (Doc. 12), contending she tripped over an empty merchandise box left in the aisle by Wilkes. Newcomb alleges Wilkes was personally negligent (Doc. 12). Defendants oppose the motion, arguing Newcomb has no reasonable possibility of recovery against Wilkes (Doc. 17).

         Newcomb's Motion to Remand (Doc. 12) is now before the Court for disposition.

         II. Law and Analysis

         Defendants contends Wilkes was improperly joined because Newcomb cannot state a claim against her and, therefore, there is complete diversity between the parties.

         The diversity statute - 28 U.S.C. § 1332 - is satisfied upon a showing of: (1) diversity of citizenship between the parties; and (2) an amount in controversy in excess of $75, 000, exclusive of interest and costs. “Complete diversity requires that all persons on one side of the controversy be citizens of different states than all persons on the other side.” See Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008). The citizenship of an individual is his or her domicile, meaning the place where an individual resides and intends to remain. See Acridge v. Evangelical Lutheran Good Samaritan Soc., 334 F.3d 444, 448 (5th Cir. 2003).

         As the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns. The removal statute is therefore to be strictly construed, and any doubt about the propriety of removal must be resolved in favor of remand. Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281- 82 (5th Cir. 2007).

         1. The law as to joinder.

         To demonstrate improper joinder, the removing defendants must demonstrate either: (1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court. See Gasch, 491 F.3d at 281.

         The defendants rely on the second prong in this case. The threshold question is whether there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant. The burden of proof is on the removing party. See Gasch, 491 F.3d at 281. In deciding whether a party was improperly joined, the Court resolves all ...


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