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Dupart v. Savage Services Corp.

United States District Court, E.D. Louisiana

February 20, 2019

DANIEL H. DUPART
v.
SAVAGE SERVICES CORPORATION, ET AL.

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK, UNITED STATES DISTRICT JUDGE

         Before the Court is plaintiff Daniel Dupart's (“Dupart”) motion[1] to remand the above-captioned matter to Louisiana state court. For the following reasons, the motion is denied.

         I.

         On December 7, 2018, Dupart filed this lawsuit in the 32nd Judicial District Court for the Parish of Terrebonne against defendants Savage Services Corporation (“Savage”), Dwayne Pinell (“Pinell, ” misnamed as “Dwayne Pinnel” in Dupart's state court petition[2]), and Tim Callahan (“Callahan”) (collectively, the “defendants”).[3]Dupart alleges that Savage subjected him to racially discriminatory treatment, which culminated in the termination of his employment on the basis of race in violation of Louisiana law.[4] He also asserts claims against Pinell and Callahan, his supervisors at Savage, for intentional and negligent infliction of emotional distress.[5]

         On January 11, 2019, the defendants removed the case to this Court.[6] In their notice of removal, the defendants concede that Pinell and Callahan are Louisiana citizens, thereby destroying diversity among the parties.[7] However, they assert that Pinell and Callahan were improperly joined and, therefore, should not be considered for purposes of establishing diversity jurisdiction.[8] Dupart disputes the defendants' contention and moves the Court to remand this matter for lack of subject matter jurisdiction.[9]

         II.

         Under 28 U.S.C. § 1441(a), a defendant may remove to federal court any action over which the federal courts have original jurisdiction. Pursuant to § 1332, a district court has original jurisdiction over cases in which the amount in controversy exceeds $75, 000, exclusive of interest and costs, and the parties are citizens of different states. “The doctrine of improper joinder rests on these statutory underpinnings, which entitle a defendant to remove to a federal forum unless an in-state defendant has been ‘properly joined.'” Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (quoting § 1441(b)). Thus, a lack of complete diversity among the parties will not render a case non-removable if an in-state party has been improperly joined.

         The Fifth Circuit recognizes 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 in state court.” Id. (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)).[10] To establish improper joinder the second way, “the test . . . is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant.” Id. The possibility must be reasonable, not merely theoretical. Travis, 326 F.3d at 648 (quoting Badon v. RJR Nabisco, Inc., 236 F.3d 282, 286 n.4 (5th Cir. 2000)). In other words, the Court must determine whether “there is no reasonable basis for predicting that state law would allow recovery against [the] in-state defendant[s].” Smallwood, 385 F.3d at 571.

         Typically, if a plaintiff's pleadings would survive a challenge under Rule 12(b)(6) of the Federal Rules of Civil Procedure, there is no improper joinder. Id. at 573. If “a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder[, ] . . . the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry.” Id. The Fifth Circuit has cautioned, however, that “a summary inquiry is appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff's recovery against the in-state defendant.” Id. at 573-74.

         Jurisdictional facts supporting removal are assessed at the time of removal. Louisiana v. American Nat'l Prop. Cas. Co., 746 F.3d 633, 636-37 (5th Cir. 2014). When deciding whether a party was improperly joined, courts must resolve all contested issues and state-law ambiguities in the plaintiff's favor. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005). “The removing party bears the burden of establishing that federal jurisdiction exists, ” De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995), and this burden is particularly “heavy” when removal is based on a claim for improper joinder. Sid Richardson Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 756 (5th Cir. 1996).

         III.

         As an initial matter, the defendants object to the fact that Dupart has a separate lawsuit pending before this Court that arises out of the same set of facts.[11]They argue that the two lawsuits constitute impermissible “claims splitting” and that such “blatant gamesmanship, ” alone, should defeat Dupart's motion to remand.[12]Federal courts will typically avoid “duplicative” litigation within the federal court system. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). But “the general rule is that a pending state-court action ‘is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.'” Wyles v. Sussman, 661 Fed.Appx. 548, 551 (10th Cir. 2016) (quoting Sprint Commc'ns, Inc. v. Jacobs, 571 U.S. 69, 73 (2013)).[13] Dupart is free to simultaneously pursue separate claims arising out of the same set of facts in different forums.

         Alternatively, the defendants argue that Pinell and Callahan, both of whom are non-diverse defendants, were improperly joined.[14] First, the defendants assert that any negligence claim against Pinell and Callahan is barred by the Louisiana Workers' Compensation Act, ...


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