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Whitley v. Premier Nissan, L.L.C.

United States District Court, E.D. Louisiana

November 28, 2018

KIM WHITLEY
v.
PREMIER NISSAN, L.L.C. AND NISSAN NORTH AMERICA, INC.

         SECTION: M (5)

          ORDER & REASONS

          BARRY W. ASHE, UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Remand filed by plaintiff Kim Whitley (“Whitley”), [1] to which defendant Nissan North America, Inc. (“Nissan”) responds in opposition, [2] and in support of which Whitley replies, [3] and in further opposition to which Nissan has filed two sur-replies.[4]Having considered the parties' memoranda and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This case involves personal injuries that were allegedly caused by a defective automobile. On February 6, 2017, Whitley purchased a preowned 2017 Nissan Pathfinder from defendant Premier Nissan (“Premier”).[5] The vehicle was manufactured by Nissan.[6] Whitley alleges that on February 25, 2017, she put the vehicle in park, switched off the engine, and was exiting the vehicle when it began rolling in reverse, hitting Whitley's legs, and dragging her approximately ten feet until the vehicle came to a stop.[7] Whitley claims that she sustained injuries to her legs, arms, and shoulders as a result of the incident.[8]

         On February 22, 2018, Whitley filed the instant action in the 29th Judicial District Court, Parish of St. Charles, State of Louisiana, against Premier and Nissan seeking damages for the injuries she allegedly sustained as a result of the February 25, 2017 accident.[9] Whitley alleges that her injuries were “caused by a characteristic of the vehicle that rendered it unreasonably dangerous in construction or composition.”[10] Whitley further alleges that Premier “knew or should have known that the vehicle was defective and failed to declare it” and that Nissan manufactured a vehicle that had an unreasonably dangerous characteristic when it left Nissan's control.[11]

         After receiving Whitley's discovery responses and discerning that there is more than $75, 000 in controversy, Nissan removed this action to the United States District Court for the Eastern District of Louisiana alleging diversity subject-matter jurisdiction under 28 U.S.C. § 1332.[12] Nissan alleges that complete diversity exists between the properly joined parties, because it is a citizen of California and Tennessee and Whitley is a citizen of Louisiana.[13] Nissan further alleges that, although Premier is a citizen of Louisiana, its citizenship should not be considered for the purpose of determining diversity subject-matter jurisdiction because Whitley has no basis for recovery against Premier; thus Whitley improperly joined Premier to defeat federal diversity subject-matter jurisdiction.[14]

         II. PENDING MOTION

         On August 10, 2018, Whitley filed the instant motion to remand arguing that Premier is properly joined, and as a result, this Court lacks diversity subject-matter jurisdiction.[15] Whitley argues that, because Premier conducted a pre-sale inspection of the vehicle, it should be deemed a manufacturer and held liable under the Louisiana Products Liability Act (“LPLA”).[16] Whitley also argues that she stated a claim against Premier for negligence by alleging that Premier knew or should have known of the alleged defect in the vehicle and failed to disclose it.[17]

         Nissan opposes Whitley's motion to remand arguing that the removal was proper, because Premier is improperly joined.[18] Nissan argues that there is no basis under the LPLA upon which to hold Premier liable as a manufacturer.[19] Nissan points out that Whitley testified in her deposition that she knew when she purchased the vehicle that Nissan, not Premier, manufactured it.[20]

         Nissan also argues that Whitley has not stated a negligence claim against Premier, because the fact that Premier conducted a pre-sale inspection demonstrates that Premier did not have either actual or constructive knowledge of the purported defect.[21] Nissan submits an affidavit from Craig P. Collins (“Collins”), Premier's general manager, stating that Premier did not know of the alleged defect and would not have sold the vehicle to Whitley if it had known.[22] Nissan further submits excerpts from the deposition of Whitley's purported expert engineer, Edward Carrick (“Carrick”), in which Carrick testified that he did not find any malfunction in the vehicle, that he did not know how Premier would have been able to find something wrong with the vehicle, and that it is his opinion that Premier did not do anything wrong.[23]

         III. LAW & ANALYSIS

         A. Remand Standard

         A defendant may remove from state court to the proper United States district court “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). Because federal courts have limited jurisdiction, the removal statute is strictly construed, and any ambiguities are construed against removal and in favor of remand. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). The party seeking removal has the burden of establishing that federal jurisdiction exists and that removal was proper. Id.

         B. Improper Joinder

         Pursuant to § 1332, a federal court may exercise diversity subject-matter jurisdiction “over a civil action between citizens of different States if the amount in controversy exceeds $75, 000.” Flagg v. Stryker Corp., 819 F.3d 132, 135 (5th Cir. 2016); see also 28 U.S.C. § 1332. Typically, there must be “complete diversity” between the parties, meaning that no plaintiff may be a “citizen of the same State as any defendant.” Id. at 136.

         Section 1441(b)(2) permits a defendant to “remove a case from state court to federal court on the basis of diversity jurisdiction so long as none ‘of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.'” Wolf v. Deutsche Bank Nat'l Tr. Co. for Am. Home Mortg. Inv. Tr. 2007-1, 2018 WL 3814579, at *2 (5th Cir. Aug. 9, 2018) (quoting and citing 28 U.S.C. § 1441(b)(2); Alviar v. Lillard, 854 F.3d 286, 289 (5th Cir. 2017)). Generally, the party asserting federal jurisdiction, i.e., the removing party, “‘bears the burden of showing that federal jurisdiction exists, and that removal was proper.'” Id. (quoting Manguno, 276 F.3d at 723).

         However, the lack of complete diversity will not render an action non-removable if a party has been improperly joined. Id. Instead, if a “plaintiff improperly joins a non-diverse defendant, ... the court may disregard the citizenship of that defendant, dismiss the non-diverse defendant from the case, and exercise subject matter jurisdiction over the remaining diverse defendant.” Flagg, 819 F.3d at 136. The defendant must prove improper joinder by showing either: “‘(1) actual fraud in the pleading of jurisdictional facts, or (2) the inability of the plaintiff to establish a cause of action against the non-diverse party in state court.'”[24]Mumfrey v. CVS Pharmacy, Inc.,719 F.3d 392, 401 (5th Cir. 2013) (quoting McKee v. Kansas City S Ry. Co.,358 F.3d 329, 333 (5th Cir. 2004)). The improper joinder doctrine is a “‘narrow exception' to the rule of complete diversity, ...


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