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Derise v. Regions Bank

United States District Court, W.D. Louisiana, Lafayette Division

August 7, 2018

MARY DERISE
v.
REGIONS BANK ET AL

          REPORT AND RECOMMENDATION

          CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE

         Before 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.

         PROCEDURAL BACKGROUND

         Plaintiff 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.

         Before 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 petition.

         FACTUAL BACKGROUND

         Plaintiff 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.

         Plaintiff 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.

         THE LAW OF IMPROPER JOINDER

         A 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).

         The 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.

         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. 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.

         THE PARTIES CONTENTIONS

         Plaintiff 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 ...


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