United States District Court, E.D. Louisiana
ORDER AND REASONS
D. ENGELHARDT UNITED STATES DISTRICT JUDGE
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.
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.
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. 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.
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.
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
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"). 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
[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
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.").
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)).
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.