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Truett v. Fluor Scaffolding Inc.

United States District Court, W.D. Louisiana, Lake Charles Division

August 30, 2018

JARDYN TRUETT
v.
FLUOR SCAFFOLDING INC., ET AL.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, MAGISTARTE JUAGE.

         Before the court is a Motion to Remand [doc. 12] filed by plaintiff Jardyn Truett and opposed [doc. 23] by defendants Technip USA, Inc. (“Technip”) and Fluor Enterprises, Inc. (“Fluor”) (collectively, “FTI”).[1] The matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636.

         I.

         Background

         This matter arises from a wrongful death and survival action filed in the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana, on March 15, 2018, by Louisiana resident Jardyn Truett (“plaintiff”). Doc. 1, att. 1. Plaintiff seeks damages from FTI and several other defendants based on the death of her husband, Tyler Truett. Tyler Truett died after he allegedly fell from scaffolding while working as a welder for Performance Contracting Services, Inc., at the Sasol ethane cracker facility in Westlake, Louisiana. Id. at p. 4, ¶ III. In her state court petition, plaintiff alleged that the twelve defendants named were liable for the accident based on the negligent construction and maintenance of the scaffolding, as well as their failure to observe other safety protocols at the site. Id. at pp. 4-5, ¶¶ VI-X.

         Defendants Sasol Chemicals USA LLC and Sasol Chemicals North America LLC (collectively, “Sasol”) filed a notice of removal to this court on the basis of diversity jurisdiction, 28 U.S.C. § 1332.[2] Doc. 1. There they acknowledge that defendants ISC Constructors, LLC (“ISC”) and MMR Constructors, Inc. (“MMR”) both have Louisiana citizenship, thus destroying complete diversity in this matter based on plaintiff's Louisiana residency. Id. at pp. 7-8. They maintain, however, that ISC and MMR are improperly joined for the purpose of defeating diversity jurisdiction. Id. at pp. 7-16. In turn plaintiff filed the instant motion to remand, asserting that she has viable claims against both parties under Louisiana law. Doc. 12; doc. 12, att. 1. Shortly thereafter, she filed a voluntary motion to dismiss all claims against ISC without prejudice, which the court granted. Docs. 22, 27.

         II.

         Law and Analysis

         A. Removal Jurisdiction and Improper Joinder Standards

         Any civil action brought in a State court of which the district courts have original jurisdiction may be removed to the proper district court. 28 U.S.C. § 1441(a). District courts have original jurisdiction over all civil actions where the amount in controversy exceeds $75, 000, exclusive of interest and costs, and is between citizens of different states. 28 U.S.C. § 1332(a)(1). The diversity provisions of § 1332 require complete diversity among the parties. Caterpillar Inc. v. Lewis, 117 S.Ct. 467, 472 (1996). The removing party bears the burden of showing that removal was procedurally proper and that federal jurisdiction exists. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). “When removal is based on diversity of citizenship, diversity must exist at the time of removal.” Texas Beef Grp. v. Winfrey, 201 F.3d 680, 686 (5th Cir. 2000).

         If removal is based on a claim that a non-diverse party has been improperly joined, then the removing party must establish either “actual fraud in the pleading of jurisdictional facts” or an “inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573 (5th Cir. 2004) (citing Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). Only the latter method is relevant here, because no fraud is alleged. Thus the relevant question 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.” Id. Under this test, the court looks to whether there is “a reasonable basis” for predicting that the plaintiff can recover on any of his claims against the non-diverse defendant. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (emphasis added). A “mere theoretical possibility of recovery, ” on the other hand, “will not preclude a finding of improper joinder.” Smallwood, 385 F.3d at 573 n. 9.

         In order to assess the plaintiff's possibility of recovery against the non-diverse defendant, the court conducts “a Rule 12(b)(6)-type analysis, looking initially at the allegations of the complaint to determine whether [it] states a claim under state law against the in-state defendant.” Id. at 573. This inquiry “depends upon and is tied to the factual fit between the [plaintiff's] allegations and the pleaded theory of recovery.” Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999). All contested issues of substantive fact and ambiguities in the controlling state law must be resolved in the plaintiff's favor. Burden v. Gen. Dynamics Corp., 60 F.3d 213, 216 (5th Cir. 1995). “Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.” Smallwood, 385 F.3d at 573.

         In some cases, however, the analysis should advance past the standards of Rule 12(b)(6). Id. This is appropriate where the plaintiff “has stated a claim, but has 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.” Id. The summary inquiry is only appropriate “to identify the presence of discrete and undisputed facts that would preclude plaintiff's recovery against the in-state defendant, ” and should not proceed into a resolution of the merits. Id. at 573-74. On a summary inquiry into improper joinder, the court must still resolve all ambiguities in the plaintiff's favor. Travis, 326 F.3d at 648-49.

         B. ...


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