United States District Court, W.D. Louisiana, Shreveport Division
REPORT AND RECOMMENDATION
L. HORNSBY MAGISTRATE JUDGE.
one of several suits filed in state and federal courts
arising from a multi-vehicle accident on Interstate 20 in
Webster Parish. The Plaintiff in this case is Charlie Grice,
a Louisiana citizen, who filed suit in the Webster Parish
state court against the driver, owner, and insurer of a
tractor-trailer rig. Mr. Grice also named as a defendant the
State of Louisiana, through the Department of Transportation
and Development (“DOTD”).
trucking company and insurer removed the case based on an
assertion of diversity jurisdiction. They alleged facts to
show diversity of citizenship except between Mr. Grice and
the State of Louisiana, but they argued that the presence of
the State could be ignored because it was improperly
joined. Before the court is Plaintiff's Motion
to Remand (Doc. 14) that challenges the improper joinder
plea. For the reasons that follow, it is recommended that the
Motion to Remand be granted.
has provided a statutory framework for removal of certain
cases where there is diversity of citizenship. Those statutes
have been interpreted by the courts to require complete
diversity; jurisdiction is lacking if any defendant is a
citizen of the same state as any plaintiff. That strict
requirement would, on its face, permit a plaintiff to name as
a defendant any citizen of his home state and defeat removal.
To prevent such shams, the “judge-imported concept of
fraudulent joinder” has developed. Bobby Jones
Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176
(5th Cir. 1968). The Fifth Circuit has since adopted the term
“improper joinder” to describe the doctrine.
Smallwood v. Illinois Central R.R. Co., 385 F.3d 568
n. 1 (5th Cir. 2004) (en banc).
most common way a defendant shows improper joinder is to
demonstrate the inability of the plaintiff to establish a
cause of action against the non-diverse party in state court.
The defendant must show that there is no reasonable basis for
the district court to predict the plaintiff might be able to
recover against the in-state defendant. Smallwood,
385 F.3d at 573; Travis v. Irby, 326 F.3d 644,
646-47 (5th Cir. 2003).
“no reasonable basis” contest may take place in
two different settings: (1) a challenge to the pleadings
alone or (2) an effort to pierce the pleadings and
demonstrate by summary judgment-type evidence that the
plaintiff is unable to prove all of the facts necessary to
prevail. The first method, the pleadings challenge, is
primarily at issue here. The court conducts a Rule
12(b)(6)-type analysis to determine whether the complaint
states a claim under state law against the in-state
defendant. Smallwood, 385 F.3d at 573. Any
ambiguities in state law must be resolved in favor of the
plaintiff. Gray v. Beverly Enterprises-Mississippi,
Inc., 390 F.3d 400, 405 (5th Cir. 2004).
Grice alleges in his petition that he was operating a Ford
F-150 pickup truck going east on I-20 in Webster Parish. At
the same time, Roosevelt Toney was operating a Kenworth
tractor-trailer rig going in the same direction. Petition,
¶ 5. Mr. Toney's tractor-trailer rig “struck
several vehicles in the rear including the vehicle being
operated by [Mr. Grice].” The impact to Grice's
vehicle forced it to strike another vehicle that was
“positioned in front of him” on the interstate.
¶ 6. Grice alleges that the accident was the fault of
Mr. Toney for following too closely, operating his vehicle in
a careless and reckless manner, and failing to see what he
should have seen. ¶ 7.
Grice alleges, in the alternative, that the accident was
solely or partially due to the fault of the DOTD. That fault
allegedly includes DOTD failing to provide appropriate safety
measures in a construction zone, failing to provide
appropriate warning measures in a construction zone, failing
to take adequate measures to alert motorists to a stalled
traffic queue ahead, failing to institute an adequate traffic
control plan to ensure proper traffic flow, failing to employ
adequate signage and notice to timely alert motorists that
the area tapered traffic into a single lane, failing to use
changeable message signs to alert motorists of upcoming
single-lane traffic, and not providing the required public
notice regarding planned interstate lane closures. ¶ 9.
allegations imply that Mr. Grice was slowed or stopped
because of construction, but the petition never says so
directly. Grice's attorney states in his memorandum that
the accident occurred during peak traffic times when a road
construction job caused traffic in a 70-mile-per-hour zone to
use a single lane of travel, and traffic was stopped and
backed up for a significant distance in front of ...