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Moore v. Great West Casualty Co.

United States District Court, E.D. Louisiana

May 15, 2018


         SECTION "N" (1)



         Presently before the Court is the motion to remand (Rec. Doc. 7) filed by Plaintiffs Izell and Barbara Moore. As stated herein, IT IS ORDERED that the motion is GRANTED. IT IS FURTHER ORDERED that this action be and hereby is REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.


         Plaintiffs filed this lawsuit on July 14, 2017 in the Civil District Court for the Parish of Orleans, State of Louisiana. Their claims arise from a July 16, 2016 motor vehicle accident that occurred when Defendant Roger Wolfe, the driver of an 18-wheeler, struck the rear of Plaintiffs' vehicle on Interstate 10 in New Orleans. At the time of the accident, Wolfe operated the 18-wheeler while in the course and scope of his employment with Defendant Raw-How-To ("Raw"). Both Wolfe and Raw are insured by Defendant Great West Casualty Company ("Great West"). The Great West policy has policy limits of $750, 000. Defendant State Farm Insurance ("State Farm") is Plaintiffs' uninsured/underinsured motorist (UM) coverage insurance provider.

         Defendant Great West was served on July 24, 2017; Defendant Wolfe was served on July 25, 2017. On August 15, 2017, Plaintiffs' counsel responded to a query from defense counsel regarding the amount of damages sustained by Plaintiffs.[1] The action was removed to federal court on October 6, 2017. According to Defendants, Defendant Raw was not served prior to filing of the notice of removal.

         In seeking remand, Plaintiffs contend that Defendants' October 6, 2017 removal of this matter was untimely, urging that the thirty-day removal period began on August 15, 2017, upon Defendants' receipt of the above-referenced correspondence from Plaintiffs' counsel regarding damages, and ended on September 14, 2017. Plaintiffs additionally contend that Defendant State Farm, a non-diverse defendant, was properly joined such that the absence of complete diversity of citizenship compels remand.


         A defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction over the issue. 28 U.S.C. § 1441(a). The federal court subject matter jurisdiction provided by 28 U.S.C. §1332 is present only when complete diversity of citizenship exists between the plaintiff(s) and all properly joined defendants, and the amount in controversy exceeds $75, 000. See 28 U.S.C. §1332. "When a non-diverse party is properly joined as a defendant, no defendant may remove the case under 28 U.S.C. § 1332." Pitman v. Crane Co., Civil Action No. 13-83, 2013 WL 1403326 *1 (E.D. La. Apr. 5, 2013) (Vance, J.). Removal is available, however, if the removing defendant shows that the non-diverse party was joined improperly. See, e.g., Smallwood v. Ill. Cent. R.R. Co., 352 F.3d 220, 222 (5th Cir. 2003). Although the Court must remand a removed action to state court if, at any time before final judgment, it appears that subject matter jurisdiction is lacking, the Court's jurisdiction is fixed as of the time of removal. 28 U.S.C. § 1447(c); Doddy v. Oxy USA, Inc., 101 F.3d 448, 456 (5th Cir.1996).

         “The burden of proving [improper] joinder is a heavy one” that is borne by the removing party. Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983); see also Davidson v. Georgia-Pac., L.L.C., 819 F.3d 758, 765 (5th Cir. 2016) (internal citations omitted) ("burden of persuasion on those who claim improper joinder is a heavy one").[2] Specifically, the removing party must show either: “(1) actual fraud in the pleading of jurisdictional facts, or (2) the inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” McKee v. Kan. City S. Ry. Co., 358 F.3d 329, 333 (5th Cir. 2004) (citation omitted). The Fifth Circuit has historically used different phrases in describing the standard for improper joinder. Whether using the phrase “no possibility of recovery” or “no reasonable basis for the plaintiff to establish liability, ” however, the essential standard has been the same. See Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003). In Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., the Fifth Circuit explained and clarified the standard:

[T]he court determines whether the [plaintiff] has any possibility of recovery against the party whose joinder is questioned. If there is a arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder. This possibility, however, must be reasonable, not merely theoretical.

313 F.3d 305, 312 (5th Cir. 2002) (internal citation and quotations omitted). See also Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007) ("This means that there must be a reasonable possibility of recovery, not merely a theoretical one.").

         This determination may be made in one of two ways. "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." Smallwood, 385 F.3d at 573. "Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder." Id. In some cases, however, the plaintiff will have stated a claim but "misstated or omitted discrete facts that would determine the propriety of joinder." Id. "In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry" to determine whether such facts exist that preclude a plaintiff's recovery against non-diverse defendant. Id. at 573-74; see also Campbell, 509 F.3d at 669 ("the court may 'pierce the pleadings' and consider summary judgment-type evidence to determine whether the plaintiff has a basis in fact for the claim"). "Examples of such facts include 'the in-state doctor defendant did not treat the plaintiff patient, the in-state pharmacist defendant did not fill a prescription for the plaintiff patient, a party's residence was not as alleged, or any other fact that easily can be disproved if not true.'" See Landry v. Columbia Cas. Co., Civil Action No. 14-220, 2014 WL 4674797, *2 (E.D. La. Sept. 18, 2014) (Milazzo, J.) (quoting Smallwood, 385 F.3d at 573, n. 12)).

         While the Court has discretion to “pierce the pleadings and consider summary judgment-type evidence in the record" in making this determination, it "must also take into account all unchallenged factual allegations, including those alleged in the complaint, in the light most favorable to the plaintiff." McKee, 358 F.3d at 334 (citing Travis, 326 F.3d at 648-49.) Thus, "although the type of inquiry into the evidence is similar to the summary judgment inquiry, the district court is not to apply a summary judgment standard but rather a standard closer to the Rule 12(b)(6) standard." McKee, 358 F.3d at 334; accord Davidson, 819 F.3d at 766 (the standard is not the summary judgment standard in which an absence in the plaintiff's proof alone can be fatal). Further, any contested issues of fact and any ambiguities of state law must be resolved in the plaintiff's favor. Id. Finally, the Court "must also take into account the 'status of discovery' and consider what opportunity the plaintiff has had to develop its claims against the non-diverse defendant." Id. at 334-36 ("KCS had not shown [applicable] law precluded all of McKee's claims . . . but only that McKee had yet to develop her claims to the extent that . . . she would be able to prevail . . . .); see also Travis, 326 F.3d at 650-51 (simply pointing to the plaintiff's lack of evidence at stage of the case where discovery was ongoing was insufficient to show that there was no possibility for the plaintiff to establish liability at trial); Davidson v. ...

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