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McKarry v. Dow Chemical Co.

United States District Court, M.D. Louisiana

May 11, 2018

DEJUAN MCKARRY
v.
DOW CHEMICAL COMPANY, ET AL.

         NOTICE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion to Remand, filed by plaintiff Dejuan McKarry.[1] The Motion is opposed.[2] For the following reasons, the undersigned recommends[3] that the Motion be DENIED and that Plaintiff's claims against Jeremy DeLacerda be DISMISSED without prejudice. It is further recommended that Plaintiff's request for fees under 28 U.S.C. § 1447(c) also be DENIED.[4]

         Factual and Procedural Background

         On or about July 10, 2017, Plaintiff filed a Petition for Damages in the Eighteenth Judicial District Court for the Parish of Iberville, Louisiana, against The Dow Chemical Company (“Dow”); Union Carbide Corporation (“Union Carbide”); Union Carbide Corporation, a wholly owned subsidiary of The Dow Chemical Company;[5] Central City and Blackhawk Railroad, a wholly owned subsidiary of Union Carbide (“Central City”); Union Tank Car Company (“UTCC”); UTLX Manufacturing, Inc., a wholly owned subsidiary of UTCC; Jeremy DeLacerda and Randy McDougal, Jr. (collectively, “Defendants”).[6] The Petition alleges that on July 10, 2016, while in the course and scope of his employment with Railserve, Inc., Plaintiff was required to climb the vertical ladder of a certain railroad hopper car (the “hopper car”), when suddenly and without warning the ladder broke and Plaintiff fell twelve feet to the ground below.[7] Plaintiff claims that as a result of the fall, he suffered injuries to his neck, left shoulder, left elbow, lower back, pelvis and left hip, and Plaintiff seeks damages for his physical pain and suffering, mental anguish, disability, loss of enjoyment of life, past and future medical expenses, past and future lost wages and loss of earning capacity.[8] Plaintiff alleges, generally, that the Defendants owned, operated, managed, controlled, inspected, maintained, and repaired the hopper car at issue and that his injuries were caused by the Defendants' negligent failure to inspect, repair, and maintain the hopper car.[9] Plaintiff also alleges that in addition to and/or in the alternative, he is entitled to rely upon the doctrine of res ipsa loquitur, since the underlying incident is not the kind that normally occurs in the absence of legal fault, negligence, carelessness or omission of duty.[10]

         On or about July 25, 2017, Plaintiff filed a First Supplemental and Amending Petition for Damages Under Art. 1151, LCCP (the “Amended Petition”), to specify that the underlying incident occurred at Dow's chemical plant in Taft, Louisiana.[11]

         On August 14, 2017, UTC, UTLX Manufacturing, LLC, a wholly owned subsidiary of UTC (“UTLX Manufacturing”)[12] and Jeremy DeLacerda (“DeLacerda”) (UTC, UTLX Manufacturing and DeLacerda are collectively, “Removing Defendants”) removed the matter to this Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a).[13] Removing Defendants assert that the parties are diverse because Plaintiff is a citizen of Louisiana, UTC is a citizen of Delaware and Illinois, UTLX Manufacturing is a citizen of Delaware and Illinois, [14] Dow is a citizen of Delaware and Michigan, Union Carbide is a citizen of New York and Texas and Plaintiff alleges Central City to be a citizen of New York and Texas.[15] Although Plaintiff asserts that DeLacerda and McDougal are citizens of Louisiana, Removing Defendants assert that their citizenship, as well as the citizenship of UTLX Manufacturing, should be disregarded because those defendants were improperly joined to defeat diversity jurisdiction.[16] Removing Defendants assert that Plaintiff will be unable to establish a cause of action against DeLacerda and McDougal because they are alleged to be liable only as employees of UTLX Manufacturing, a company that had no involvement with any of the alleged actions or omissions giving rise to Plaintiff's claims.[17]

         On September 13, 2017, Plaintiff filed the instant Motion to Remand, asserting that Removing Defendants are unable to carry their burden of proving that Plaintiff has no possibility of tort recovery against Jeremy DeLacerda.[18] Plaintiff also requests an award of attorney's fees under 28 U.S.C. § 1447(c). In opposition, Removing Defendants maintain that neither DeLacerda, McDougal, nor their employer, UTLX Manufacturing, had any involvement whatsoever with the hopper car at issue in this case, nor did they have any involvement with similar hopper railcars generally, or the workers or work site at the Taft chemical plant where the accident allegedly occurred.[19] In other words, Removing Defendants assert that Plaintiff has sued the wrong defendants.[20] On October 4, 2017, Dow and Union Carbide each filed a “Joinder in Defendants' Opposition to Motion to Remand, ” stating that each entity “adopts and incorporates by reference” the memorandum and exhibits filed by the Removing Defendants in opposition to Plaintiff's Motion to Remand.[21] The parties do not dispute that the amount in controversy exceeds $75, 000, exclusive of interest and costs.[22]

         The Removing Defendants assert that DeLacerda, McDougal and UTLX Manufacturing should be dismissed from this suit as improperly joined. Because the undisputed facts establish that UTLX Manufacturing, a citizen of Delaware and Illinois, has diverse citizenship from Plaintiff, a citizen of Louisiana, the undersigned does not evaluate whether Plaintiff fails to state a claim against UTLX Manufacturing. Additionally, because the undisputed facts establish that McDougal has been domiciled in Texas since June 30, 2016 (before Plaintiff's accident occurred), the undersigned also does not consider the argument that McDougal is improperly joined.[23]

         Whether the Petition states a claim against UTLX and/or McDougal is not a determination necessary to the analysis of the Court's subject matter jurisdiction. Thus, the undersigned proceeds only with a determination as to whether DeLacerda was improperly joined.

         Applicable Law and Analysis

         A. Improper Joinder

         The party seeking removal based on improper joinder of a non-diverse defendant bears a “heavy” burden of proving that the joinder was improper.[24] To meet its burden, the removing party must show (1) an actual fraud in the pleading of jurisdictional facts, or (2) an inability of the plaintiff to establish a cause of action against the non-diverse party in state court. Id. at 646-47. Here, the first method of proving improper joinder is not at issue because the Removing Defendants have not alleged actual fraud in the Petition. The Removing Defendants instead argue that Plaintiff will be unable to establish a cause of action against DeLacerda. As such, “the test for [improper] 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.”[25]

         The Fifth Circuit has explained that to determine whether a plaintiff has a reasonable basis of recovery under state law, a court can resolve the issue in one of two ways.[26] “The 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. Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.”[27]However, where a plaintiff has omitted or misstated “discrete facts that would determine the propriety of joinder, ” the district court may “pierce the pleadings and conduct a summary inquiry” to determine whether a non-diverse defendant has been improperly joined.[28] Although the decision regarding the procedure necessary in a given case lies within the discretion of the district court, the Fifth Circuit has cautioned that, “[A] summary inquiry is appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff's recovery against the instate defendant.”[29] The Fifth Circuit further advised that, “[T]he inability to make the requisite decision in a summary manner itself points to an inability of the removing party to carry its burden.”[30] In determining whether a party was improperly joined, the Court must resolve all disputed questions of fact and ambiguities in the controlling state law in favor of the non-removing party.[31]

         B. The Arguments of the Parties

         In the Motion to Remand, Plaintiff asserts that the Removing Defendants cannot meet their heavy burden of establishing improper joinder of Jeremy DeLacerda because the state court Petition provides sufficient facts to establish that Plaintiff has a reasonable possibility of recovery against him.[32] In the Petition, Plaintiff alleges that at all times relevant to this litigation DeLacerda was the General Manager of UTLX Manufacturing's facility in Alexandria, Louisiana.[33] Plaintiff claims the following allegations in the Petition are sufficient to establish a cause of action for negligence against DeLacerda:

COMES NOW, Dejuan McKarry (“McKarry”) petitioning against The Dow Chemical Company, Union Carbide Corporation, Union Carbide Corporation, a wholly owned subsidiary of The Dow Chemical Corporation, Central City and Blackhawk Railroad, a wholly owned subsidiary of Union Carbide Corporation, Union Tank Car Company and UTLX Manufacturing, Inc., a wholly owned subsidiary of Union Tank Car Company, Jeremy DeLacerda and Randy McDougal, Jr. hereinafter sometimes collectively referred to as (“Defendants”) . . . .
. . . .
8. Jeremy DeLacerda is believed to be a person of the full age of majority and a resident of Lena, Rapides Parish, Louisiana. Jeremy DeLacerda was, at all times relevant hereinafter, employed as the General Manager by UTLX Manufacturing, Inc. at its Alexandria facility.
. . . .
10. That, at all times relevant hereinafter, Defendants owned, operated, managed, controlled, inspected, maintained, and repaired a certain railroad hopper car assigned the railroad reporting mark, otherwise known as the standard carrier alpha code [SCAC], CCBX71279.
. . . .
12. That, on Sunday, July 10, 2016, while in the course and scope of his employment with Railserve, McKarry was required to climb the aforementioned hopper car's vertical ladder, when, suddenly and without warning, the hopper car's vertical ladder broke and McKarry fell some twelve (12) feet to the ground below, causing McKarry to suffer the injuries and damage described in more detail below.
13. That, the said accident, injuries and damage suffered by McKarry were caused wholly and solely as a result of the legal fault, carelessness, negligence and omission of duty on the part of these Defendants, without any legal fault, carelessness, negligence, or omission of duty on the part of McKarry causing or in any way contributing thereto.
14. That, the legal fault, negligence, carelessness, and omission of duty on the part of these Defendants consisted of, the following:
a. in failing to inspect and/or in failing to adequately inspect hopper car CCBX71279 in order to satisfy itself/themselves that it was free of all ...

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