United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE
the Court is a Motion to Remand (Rec. Doc.
9) filed by Plaintiff, Carissa Caples. One
Defendant, Menzies Aviation USA, Inc., gave notice it did not
oppose remand. However, Defendant, Bryce Wolf, filed a
Motion to Dismiss or to Drop Party or Sever Claims for
Misjoinder (Rec. Doc. 20) in which he
argues remand is improper. Plaintiff filed an opposition
(Rec. Doc. 21) to Mr. Wolf's motion. Considering the
motions, the memoranda, the record, and the law, the Court
finds the motion to remand should be GRANTED
and the motion to sever or dismiss should be
AND PROCEDURAL BACKGROUND
case began in the 24th Judicial District Court of Jefferson
Parish, Louisiana, where Plaintiff filed suit against her
employer, Menzies Aviation USA, Inc. (“Menzies”),
and her supervisor at Menzies, Bryce Wolf. In her state court
petition, Plaintiff claims that Mr. Wolf insisted Plaintiff
sign a work report that Plaintiff disagreed
with. She further alleges she insisted on a copy
of the report and placed it in the copy machine. Mr. Wolf
then allegedly told her she was not entitled to a copy and
slammed the copy machine door onto her hand. Subsequently,
Menzies terminated Plaintiff-wrongfully, she
claims. Among other claims for damages, Plaintiff
alleges she suffered physical injuries from Mr. Wolf's
intentional tort, as well as lost wages from Menzies'
filed a notice of removal (Rec. Doc. 1) on June 8, 2019, on
the basis of diversity citizenship. Menzies' citizenship
is a mystery-Defendant merely references Plaintiff's
petition alleging that Menzies is a “foreign
corporation.” It is indisputable, though, that Plaintiff
and Mr. Wolf are both citizens of Louisiana. Menzies then
filed a motion to compel arbitration (Rec. Doc. 7), which
Plaintiff opposed. Plaintiff filed her motion to remand, and
then Mr. Wolf filed his own motion, claiming misjoinder. The
motions are before the Court without oral argument.
defendant may remove “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)
(2011). “A federal district court has subject matter
jurisdiction over a state claim when the amount in
controversy is met and there is complete diversity of
citizenship between the parties.” Mumfrey v. CVS
Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013)
(citing 28 U.S.C. § 1332(a)). The amount in controversy
required by § 1332(a) is currently $75, 000.
Id. The court considers the jurisdictional facts
that support removal as of the time of removal. Gebbia v.
Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.
2000). Because removal raises significant federalism
concerns, any doubt about the propriety of removal must be
resolved in favor of remand. Gasch v. Hartford Acc. &
Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).
1441(b) specifies that an action otherwise removable solely
on the basis of diversity jurisdiction may not be removed if
any “properly joined” defendant is a citizen of
the state in which the action was brought. 28 U.S.C. §
1441(b)(2). Thus, a properly joined in-state defendant will
prevent removal, but an improperly joined instate defendant
will not. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d
568, 572 (5th Cir. 2004).
party seeking removal bears a heavy burden of proving that
the joinder of the in-state defendant was improper.
Id. at 574. The Fifth Circuit has recognized two
ways to establish improper joinder: “(1) actual fraud
in the pleading of jurisdictional facts, or (2) inability of
the plaintiff to establish a cause of action against the
non-diverse party.” Id. at 573 (quoting
Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir.
2003)). To establish improper joinder where there is no
allegation of actual fraud the defendant must demonstrate
that there is no possibility of recovery by the plaintiff
against any in-state defendant, which stated differently
means that there is no reasonable basis to predict that the
plaintiff might be able to recover against an instate
defendant. Id. “A ‘mere theoretical
possibility of recovery under local law' will not
preclude a finding of improper joinder.” Id.
at 573 n.9 (quoting Badon v. RJR Nabisco Inc., 236
F.3d 282, 286 (5th Cir. 2000)).
should ordinarily resolve the issue by conducting a Rule
12(b)(6)-type analysis, looking initially at the allegations
of the complaint to determine whether the complaint states a
claim under state law against the in-state defendants.
Id. at 573. The federal pleading standard governs
whether a plaintiff has stated a claim against a non-diverse
defendant for purposes of the improper joinder analysis.
Int'l Energy Ventures Mgmt., L.L.C. v. United Energy
Grp., Ltd., No. 14-20552, 2016 WL 1274030, at *3 (5th
Cir. Mar. 31, 2016). Where a plaintiff has stated a claim,
but has misstated or omitted discrete and undisputed facts
that would preclude recovery, the Court may, in its
discretion, pierce the pleadings and conduct a summary
inquiry. Smallwood, 385 F.3d at 573. Because the
purpose of the improper joinder inquiry is to determine
whether the in-state defendant was properly joined, the focus
of the inquiry must be on the joinder, not the merits of the
plaintiff's case. Id.
ARGUMENTS & DISCUSSION
Wolf does not claim fraud on the part of Plaintiff but argues
that Plaintiff cannot prevail on any claim against him. Mr.
Wolf's argument is essentially that Plaintiff's
exclusive remedy is a worker's compensation claim against
Menzies. Of course, intentional acts committed by
fellow employees outside of the course and scope of their
employment are excepted from this rule limiting recovery.
Haynie v. Twin Oaks Nursing Home, Inc., 232 So.3d
74, 78 (La.App. 5 Cir. 11/15/17).
original petition, Plaintiff alleges that Mr. Wolf
intentionally slammed her hand with a copy machine door. This
would not appear to be an act within the scope of Mr.
Wolf's employment, but Mr. Wolf suggests Plaintiff
admitted that this act was within the scope of Mr. Wolf's
employment in her pleadings. Plaintiff made an
allegation-an admission would not be Plaintiff's
to make. As Plaintiff's briefing makes clear, Menzies is
the Defendant who would have to waive its affirmative defense
that it is not vicariously responsible for Mr. Wolf's
intentional acts by stipulating that Mr. Wolf's acts were
within the scope of his employment. Menzies has not done so
and has in fact ...