United States District Court, E.D. Louisiana
DANIEL BOYD, ET AL.
BRANDON CLAUSEN, ET AL.
ORDER & REASONS
E. FALLON U.S. DISTRICT COURT JUDGE
the Court is Plaintiff Daniel and Barbara Boyd's Motion
to Remand. R. Doc. 5. The Motion is unopposed.
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.
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”),  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.
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)).
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).
LAW & ANALYSIS
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)).
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
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.
their petition, Plaintiffs allege, “A proximate cause
of this accident and subsequent death of [DB] was the
negligence of defendant, ...