United States District Court, E.D. Louisiana
DANIEL H. DUPART
SAVAGE SERVICES CORPORATION, ET AL.
ORDER & REASONS
M. AFRICK, UNITED STATES DISTRICT JUDGE
the Court is plaintiff Daniel Dupart's
(“Dupart”) motion to remand the above-captioned
matter to Louisiana state court. For the following reasons,
the motion is denied.
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), and Tim Callahan
(“Callahan”) (collectively, the
“defendants”).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. He also asserts claims against
Pinell and Callahan, his supervisors at Savage, for
intentional and negligent infliction of emotional
January 11, 2019, the defendants removed the case to this
Court. In their notice of removal, the defendants
concede that Pinell and Callahan are Louisiana citizens,
thereby destroying diversity among the parties. However, they
assert that Pinell and Callahan were improperly joined and,
therefore, should not be considered for purposes of
establishing diversity jurisdiction. Dupart disputes the
defendants' contention and moves the Court to remand this
matter for lack of subject matter jurisdiction.
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.
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)). 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.
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.
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
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.They argue that the two
lawsuits constitute impermissible “claims
splitting” and that such “blatant gamesmanship,
” alone, should defeat Dupart's motion to
remand.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)). Dupart is free to simultaneously pursue
separate claims arising out of the same set of facts in
the defendants argue that Pinell and Callahan, both of whom
are non-diverse defendants, were improperly
joined. First, the defendants assert that any
negligence claim against Pinell and Callahan is barred by the
Louisiana Workers' Compensation Act, ...