United States District Court, W.D. Louisiana, Lake Charles Division
GUADALUPE DELAROSA, JR.
PACKAGING CORPORATION OF AMERICA, ET AL
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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.
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.
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.
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).
Motion to Remand
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).
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.
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.
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 ...