United States District Court, W.D. Louisiana, Alexandria Division
H.L. Perez-Montes, United States Magistrate Judge
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.
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.
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.
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).
Motion to Remand (Doc. 12) is now before the Court for
Law and Analysis
contends Wilkes was improperly joined because Newcomb cannot
state a claim against her and, therefore, there is complete
diversity between the parties.
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).
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).
The law as to joinder.
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.
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 ...