United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE
the Court upon referral from the district judge, is a Motion
for Remand and for Attorney's Fees filed by Plaintiff,
Mary Derise, [Rec. Doc. 8] and Defendant, Regions Bank's,
Opposition thereto [Rec. Doc. 13]. For the reasons that
follow, the Court will grant Plaintiff's Motion and
remand this matter to the 16th Judicial District
Court, Parish of Iberia, State of Louisiana.
filed this action on February 7, 2018 in the Sixteenth
Judicial District Court, Parish of Iberia, Louisiana. R. 1-2.
Defendants removed the case to this Court on March 23, 2018
based on diversity of citizenship grounds. 28 U.S.C.
§§ 1332, 1441. The parties do not contest that both
plaintiff and Elaine Ducote are citizens of Louisiana.
Defendants argue, however, that Ducote was added to the
lawsuit solely to defeat diversity jurisdiction and not
because any plausible claim exists against her. Plaintiff
filed the instant motion to remand on April 23, 2018. R.
8. Defendants filed a memorandum in opposition on May
14, 2018. R. 13.
addressing Plaintiffs motion to remand and adjudicating the
merits of Plaintiffs claim, the Court must determine if its
own subject matter jurisdiction exists in this case.
Smith v. Bank of America Corp., 605 Fed.Appx. 311,
314-15 (5thCir. 2015) (citing Getty Oil Corp.
v. Ins. Co. of N. Am., 841 F.2d 1254, 1258-61, 1264
(5th Cir. 1988) (holding that the district court
erred by failing to address the important jurisdictional
issues before reaching the merits of the case, and that the
district court's failure to assess its own jurisdiction
necessitated remand). On July 11, 2018, the Court issued a
sua sponte order directing Plaintiff to amend her
complaint to allege sufficient factual allegations which
would allow the Court to determine whether or not the Court
has jurisdiction over Ducote. R. 16. Plaintiff
complied with the Court's order and filed a First
Supplemental and Amending Petition (“amended
petition”) on July 13, 2018. R. 17. The Court
will consider the motion to remand based on the amended
alleges in the amended petition that on December 6, 2017
while walking up to the Region's Bank in New Iberia,
Louisiana, (“Regions”) she tripped on an uneven
and unmarked ledge causing her to strike her head and face
directly onto the concrete. R. 1-2, ¶¶ 3-5. She
alleges that at the time of her injury Elaine Ducote
(“Ducote”) was working as the manager of Regions.
R. 17, ¶ 13. She further alleges that Ducote
“refused to call an ambulance or take appropriate
action to provide reasonable care commensurate with the
circumstances.” Id. at ¶ 14. As a result
of Ducote's refusal to call an ambulance, Plaintiff
alleges she was left to sit in the bank's lobby
“bleeding and in pain” until her daughter-in- law
could get to the bank and take her to the emergency room.
Id. at ¶ 15. She alleges that the impact caused
serious injury to her head, face, eyes, nose, arm and knees
and resulted in immediate medical attention and surgery.
Id. at ¶¶ 6, 7. As a result she is unable
to engage in the lifestyle and activities she enjoyed prior
to the accident. Id. at ¶ 8.
named as defendants Regions, Ducote, and “ABC”
Insurance Company contending negligence for failure to
inspect and maintain the premises in a safe condition;
failure to provide a safe approach to the building from the
parking lot; creation of an abrupt and dangerous obstacle;
failure to remedy a dangerous and hazardous condition;
failure to exercise reasonable care commensurate with the
circumstances, and failure to take reasonable action to
provide medical care in a timely manner. R. 17, ¶ 17.
LAW OF IMPROPER JOINDER
defendant may remove “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction.” 28 U.S.C. § 1441(a).
When original jurisdiction is based on diversity of
citizenship, the cause of action must be between
“citizens of different States” and the amount in
controversy must exceed the “sum or value of $75, 000,
exclusive of interest and costs.” 28 U.S.C. §
1332(a)-(a)(1). Subject matter jurisdiction must exist at the
time of removal to federal court, based on the facts and
allegations contained in the complaint. St. Paul
Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253
(5th Cir. 1998) (“jurisdictional facts must be judged
as of the time the complaint is filed”). The removal
statute, 28 U.S.C. § 1441, is strictly construed and any
doubt as to the propriety of removal should be resolved in
favor of remand. Gasch v. Hartford Acc. & Indem.
Co., 491 F.3d 278, 281-82 (5th Cir. 2007). The removing
party has the burden of proving federal diversity
jurisdiction. Garcia v. Koch Oil Co. of Tex. Inc.,
351 F.3d 636, 638 (5th Cir. 2003). Remand is proper if at any
time the court lacks subject matter jurisdiction.
See, 28 U.S.C. § 1447(c).
improper joinder doctrine is a narrow exception to the
complete diversity rule. McDonald v. Abbott Labs.,
408 F.3d 177, 183 (5th Cir. 2005). “The party seeking
removal bears a heavy burden of proving that the joinder of
the instate party was improper.” Smallwood v.
Illinois Cent. R.R., 385 F.3d 568, 574 (5th Cir. 2004)
(enbanc). To establish improper joinder, the party
seeking removal must show either: “(1) actual fraud in
the pleading of jurisdictional facts, or (2) inability of the
plaintiff to establish a cause of action against the
nondiverse party in state court.” Travis v.
Irby, 326 F.3d 644, 647 (5th Cir. 2003). Under the
second test, applicable in this case, the removing party must
show “there is no reasonable basis for the district
court to predict that the plaintiff might be able to recover
against an instate defendant.” Smallwood, 385
F.3d at 573.
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.
Smallwood, 385 F.3d at 573. “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.”
Id. 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. Id. 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 in-state defendant.” Id. at
573-74. 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.” Id. at 574.
alleges that after she fell, Ducote “failed to call an
ambulance or take any steps whatsoever to provide the medical
attention [Plaintiff] required.” Id. Instead,
Plaintiff contends, Ducote had her sit in Region's lobby
while she was “bleeding and in pain” and wait for
Plaintiff's daughter-in law to pick her up and take her
to the hospital emergency room. Id. As a result
Plaintiff did not receive any medical attention for her
broken nose or other injuries after the ...