United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY, MAGISTARTE JUAGE.
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.
“FTI”). The matter has been referred to the
undersigned for review, report, and recommendation in
accordance with the provisions of 28 U.S.C. § 636.
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.
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. 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.
Removal Jurisdiction and Improper Joinder
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).
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.
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.
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.