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Delarosa v. Packaging Corporation of America

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

August 30, 2018

GUADALUPE DELAROSA, JR.
v.
PACKAGING CORPORATION OF AMERICA, ET AL

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before the court are a Motion to Remand [doc. 9] and a Motion to Amend Complaint [doc. 15] filed by plaintiff Guadalupe Delarosa, Jr. Defendant, Packaging Corporation of America (“PCA”), opposes the motion to remand [doc. 14] and the motion to amend. Doc. 18.

         This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For the reasons stated below, IT IS RECOMMENDED that the Motion to Remand [doc. 9] and Motion to Amend [doc. 15] be DENIED and that all claims brought against Timothy Wohlers be DISMISSED WITHOUT PREJUDICE.

         I.

         Background

          This case arises from the injuries Delarosa suffered when he was doing welding work for his employer, Elite Specialty Welding, LLC (“Elite”), on February 8, 2017, at a paper mill owned by PCA in DeRidder, Louisiana. Doc. 1, att. 7, pp. 2, 14-17. Delarosa and other welders were injured when a Foul Condensate tank (“FC tank”) exploded at the facility. Id. Delarosa, a Louisiana resident, filed suit in the 36th Judicial District Court, Beauregard Parish, Louisiana, on January 16, 2018. Id. at p. 2. He named as defendants PCA, a corporation with citizenship in Delaware and Illinois, and Timothy Wohlers, a Louisiana citizen whom he alleges was a supervisor with responsibility for the safe operation of the FC tank. Id. at p. 7.

         According to Delarosa's petition, Elite contracted with PCA to conduct repairs at the mill during its annual maintenance outage, which included welding various pieces of equipment, or “hot work.” Id. at p. 14. Delarosa states that the FC tank stored highly flammable non-condensable gases (hereafter “NCGs”), a byproduct of mill operations. Id. at pp. 7, 9. He maintains that PCA issued a permit for hot work to be done near the FC tank without providing any warning that it contained NCGs. Id. at p. 16. He says that the FC tank exploded “suddenly and without warning” when hot work began nearby, causing him serious injury. Id. at p. 17.

         On February 14, 2018, PCA removed the action to this court on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Doc. 1. Although it acknowledges that diversity would be lacking because Delarosa and Wohlers are both Louisiana citizens, PCA asserts that the citizenship of Wohlers should be disregarded for purposes of determining jurisdiction because he was improperly joined. Id. at pp. 2, 6.

         Delarosa filed the instant motion to remand on March 13, 2018, asserting that he stated a valid cause of action against Wohlers. Doc. 9, p. 2. On April 3, 2018, Delarosa moved the court for leave to file an amended complaint, seeking to add claims against James Machine Works, LLC (“JMW”). Doc. 15. PCA opposes the motion on grounds that plaintiff improperly pleaded JMW's citizenship and that amendment would be futile. Doc. 18, pp. 8, 10.

         II.

         Law & Analysis

         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 28 U.S.C. § 1332(a)(1) require complete diversity among the parties. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (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).

         A. Motion to Remand

         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. The movant is therefore required to put forth evidence “that would negate a possibility of liability on the part of [the nondiverse defendant].” Davidson v. Georgia-Pacific, LLC, 819 F.3d 758, 767 (5th Cir. 2016) (quoting Travis, 326 F.3d at 650) (alterations in original). 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).

         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.” Smallwood, 385 F.3d at 574. 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). “Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.” Smallwood, 385 F.3d at 574.

         In some cases, however, the analysis should advance past the standards of Rule 12(b)(6). Id. at 573. 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.

         In this diversity case, the court applies state law to evaluate the sufficiency of the plaintiff's claims. Henry v. O'Charleys, Inc., 861 F.Supp.2d 767, 771 (W.D. La. 2012). Under Louisiana tort law, an employee is personally liable to a third person if the employee breached a personal duty owed to that person. Freeman v. Wal-Mart Stores, Inc., 775 F.Supp. 208, 210 (W.D. La. 1991). Courts look to the factors set forth by the Louisiana Supreme Court in Canter v. Koehring Co., 283 So.2d 716 (La. 1973), to determine if ...


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