Boyd v. Clausen

         SECTION "L" (4)

          ORDER & REASONS

          ELDON E. FALLON U.S. DISTRICT COURT JUDGE

         Before the Court is Plaintiff Daniel and Barbara Boyd's Motion to Remand. R. Doc. 5. The Motion is unopposed.^[1]

         I. BACKGROUND

         On December 20, 2018, Plaintiffs Daniel and Barbara Boyd filed a petition individually and on behalf of their minor child, DB, in the Civil District Court for the Parish of Assumption, State of Louisiana, alleging that on October 5, 2018, DB was a passenger in a vehicle operated by Defendant DG, the minor child of Defendant Wayne Gros, Jr., the vehicle's owner. R. Doc. 1-1 ¶ 5. Plaintiffs allege DG was driving Defendant Gros's vehicle eastbound on LA 70 when DG came across Defendant Brandon Clausen, who was travelling westbound on LA 70. Id. Plaintiffs contend Clausen crossed the center line into the eastbound lane, causing DG to overcorrect in an attempt to avoid a collision with Clausen, thereby crossing into the westbound lane. Id. According to Plaintiffs, at that same time, Clausen had partially crossed back into the westbound lane. Id. Plaintiffs allege DG's overcorrection and Clausen's negligent actions caused a head on collision between the vehicles, which sadly resulted in DB's death. Id.

         Due to the accident, Plaintiffs allege DB “died a tortuous death” as a passenger in Defendant Gros's vehicle. Id. at ¶ 17. Plaintiffs bring a survival action for wrongful death and ask for a judgment against Clausen, his automobile insurance company, Defendant USAA Casualty Insurance Company (“USAA”), Defendant Gros on behalf of his minor child, DG, and Gros's insurance company, Defendant Progressive Insurance Co. (“Progressive”), ^[2] for “physical and mental pain, suffering and anguish; loss of enjoyment of life; loss of society and companionship; loss of love and affection; punitive damages; and other damages to be demonstrated with particularity at the trial of this matter.” Id. at ¶ 18.

         On February 25, 2019, Clausen removed the case to this Court. R. Doc. 1. In his notice of removal, Clausen contends this Court has jurisdiction over the case pursuant to 28 U.S.C. § 1332, as there is diversity of citizenship between the parties and the amount in controversy exceeds $75, 000. R. Doc. 1 at ¶¶ 4-18; at ¶¶ 19-23. In his notice of removal, Clausen asserts this wrongful death action easily exceeds § 1332's $75, 000 amount in controversy requirement. Id. at ¶ 23. Clausen further asserts he is domiciled in Clark, South Dakota; Defendant USAA is domiciled in Texas; and Plaintiffs are residents and domicilaries of Louisiana, R. Doc. 1 at ¶¶ 15-17, but acknowledges that diversity does not exist as the pleadings currently stand, as Defendant Gros, like Plaintiffs, is a Louisiana domiciliary. Instead, Clausen argues Plaintiffs improperly named Gros to this action for the sole purpose of defeating diversity. Id. at ¶¶ 17, 23. Clausen contends Plaintiffs' allegation that he “principally caused” the collision in the petition for damages support his position that Defendant Gros was improperly named. Id. at ¶ 12. Furthermore, Clausen asserts that the facts in the case do not support a reasonable possibility of recovery against Defendant Gros because the police accident report does not indicate any fault on the part of DG. Id. at ¶ 13. Accordingly, Clausen asserts Defendant Gros has been improperly joined and his Louisiana citizenship should not be considered; therefore, Defendants contend the diversity requirement is satisfied in this case. R. Doc. 1 at ¶ 6, 13 (citing Irizarry v. Lawson, No. 17-0958, 2017 WL 4684740, at *3 (E.D. La. Oct. 19, 2017)).

         II. PRESENT MOTION

         On March 20, 2019, Plaintiffs filed a Motion to Remand, arguing the Court lacks diversity jurisdiction over this action as both they and Defendant Gros are citizens of Louisiana. R. Doc. 5-1 at 4-5. Although the motion is unopposed, the Court nevertheless has the obligation to assess its merit. Braly v. Trail, 254 F.3d 1082 (5th Cir. 2001).

         III. LAW & ANALYSIS

         “[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). If a federal court would have had original jurisdiction, a defendant may generally remove the case to federal court. In the present case, Clausen asserts this Court has original jurisdiction over the suit pursuant to 28 U.S.C. § 1332, which provides “[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States.” 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) (citing Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 253-54 (5th Cir. 1961)). “To determine whether jurisdiction is present for removal, [the court should] consider the claims in the state court petition as they existed at the time of removal.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). The removal statute should be strictly construed in favor of remand. Id. (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).

         The only jurisdictional issue remaining in this case is whether diversity of citizenship existed at the time of removal. When diversity does not exist at the time of removal because the plaintiff names a non-diverse party, a defendant may nevertheless remove the case if the non-diverse party was improperly or fraudulently joined. However, “[t]he removing party carries a heavy burden when attempting to prove fraudulent joinder.” Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995)). The removing party must prove there is no possibility the plaintiff can establish a cause of action against the in-state defendant, or that there has been outright fraud in the plaintiff's pleading of jurisdictional facts. Id. (quoting Cavallini, 44 F.3d at 259). “After all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the nonremoving party, the court determines whether that party has any possibility of recovery against the party whose joinder is questioned.” Id. (quoting Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)). “If there is ‘arguably a reasonable basis for predicting that the state law might impose liability on the facts involved,' then there is no fraudulent joinder.” Id. (quoting Badon v. RJR Nabisco Inc., 236 F.3d 282, 286 (5th Cir. 2001)). This possibility, however, must be reasonable, not merely theoretical. Id. (citing Badon, 236 F.3d at 286).

         In this case, it is undisputed that Plaintiffs Daniel and Barbara Boyd are Louisiana domiciliaries. The parties also do not dispute the Louisiana citizenship of Defendant Gros. Thus, the Court determines, based on the allegations in the petition, whether there is any reasonable basis for recovery under Louisiana tort law by Plaintiffs against Defendant Gros. Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003).

         In their petition, Plaintiffs allege, “A proximate cause of this accident and subsequent death of [DB] was the negligence of defendant, ...