United States District Court, M.D. Louisiana
MITCHEL SHANNAN POOLE INDIVIDUALLY AND ON BEHALF OF RACHAEL NICOLE POOLE, DECEASED
THOR INDUSTRIES, INC., ET AL.
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
the Court is Plaintiff's Motion to Remand (R. Doc. 5)
filed on November 6, 2018. Defendant Verless Travis Stewart,
Jr. (“Stewart”) filed his Opposition (R. Doc. 11)
on November 27, 2018. Defendant Keystone filed its Opposition
(R. Doc. 12) on November 27, 2018. Defendant Thor Industries,
Inc. (“Thor”) filed its Opposition (R. Doc. 13),
and Defendant Rick's RV Sales, Inc.
(“Rick's”) filed its Opposition (R. Doc. 17)
also on November 27, 2018.
before the Court is Plaintiff's Motion for Expedited
Consideration (R. Doc. 3), Plaintiff's Motion for
Sanctions (R. Doc. 4), and Plaintiff's Motion for Oral
Argument (R. Doc. 6), all filed on November 6, 2018.
Defendant Stewart filed his Opposition (R. Doc. 10) to
Plaintiff's Motion for Sanctions on November 27, 2018.
Defendant Keystone filed its Opposition (R. Doc. 14) to
Plaintiff's Motion for Sanctions and its Opposition (R.
Doc. 15) to Plaintiff's Motion for Expedited
Consideration on November 27, 2018. Lastly, Defendant
Rick's filed its Opposition (R. Doc. 16) to
Plaintiff's Motion for Sanctions on November 27, 2018.
initiated this action with the filing of his Petition for
Damages on July 14, 2017. (R. Doc. 1-1 at 2-10). Therein,
Plaintiff filed suit individually and on behalf of his
deceased wife, alleging that his wife was killed as a result
of being electrocuted while working on their RV in February
of 2017. As Defendants, Plaintiff initially named (1) Thor
Industries, Inc. and Dutchmen Manufacturing, Inc. (now
“Keystone”), the manufacturer of the allegedly
defective RV, (2) Rick's RV Sales, Inc.
(“Rick's”), the alleged seller and repair
entity of the RV, and (3) Joshua and April Dosramos (the
“Dosramoses”), the persons from whom Rachael
Poole allegedly purchased the RV. (R. Doc. 1-2 at 2-3).
Against Keystone, Plaintiff brings claims under the Louisiana
Products Liability Act, for defective design, defective
construction, breach of express warranties, and inadequate
warning. (R. Doc. 1-2 at 4-7). Plaintiff's claims against
Rick's purport to arise out of services performed by
Rick's on the RV. (R. Doc. 1-1 at 7). Lastly, Plaintiff
brings claims for negligence and redhibition against Joshua
and April Dosramos. (R. Doc. 1-2 at 7-8).
and Thor initially removed this action on April 17, 2018,
alleging federal jurisdiction on the basis of diversity
pursuant to 28 U.S.C. § 1332, bearing the caption
Mitchell Shannan Poole, et al. v. Thor Industries, Inc.,
et al., No. 3:18-cv-474-RLB. Plaintiff sought to remand
the action, and also sought leave of Court to file an amended
petition adding two new parties as Defendants, Travis Stewart
and Garrin Vincent. Based on the law and the facts before it
at the time, the Court granted leave to amend and remanded
the case to state court on the basis of lack of diversity
jurisdiction due to Mr. Vincent, a Louisiana resident.
Defendants filed a Motion for Reconsideration of the Order
remanding the action to state court, which was denied on the
basis that the Court had been divested of jurisdiction.
October 26, 2018, Travis Stewart filed a Notice of Removal
(R. Doc. 1), asserting diversity jurisdiction pursuant to 28
U.S.C. § 1332 based on the argument that the non-diverse
Defendants (Rick's, the Dosramoses, and Vincent) were
fraudulently joined. Plaintiff filed the instant Motion to
Remand (R. Doc. 5) on November 6, 2018, along with the other
Law and Analysis
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).
When original jurisdiction is based on diversity of
citizenship, the cause of action must be between
“citizens of different States” and the amount in
controversy must exceed the “sum or value of $75, 000,
exclusive of interest and costs.” 28 U.S.C. §
1332(a)-(a)(1). Subject matter jurisdiction must exist at the
time of removal to federal court, based on the facts and
allegations contained in the complaint. St. Paul
Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253
(5th Cir. 1998) (“jurisdictional facts must be judged
as of the time the complaint is filed”). Remand is
proper if at any time the court lacks subject matter
jurisdiction. See 28 U.S.C. § 1447(c).
courts are courts of limited jurisdiction [and] possess only
that power authorized by Constitution and statute, which is
not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(citations omitted). The removal statute, 28 U.S.C. §
1441, is strictly construed and any doubt as to the propriety
of removal should be resolved in favor of remand. Gasch
v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82
(5th Cir. 2007); see also Manguno v. Prudential Prop.
& Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)
(“Any ambiguities are construed against removal because
the removal statute should be strictly construed in favor of
remand.”); Howery v. Allstate Ins. Co., 243
F.3d 912, 916 (5th Cir. 2001) (“We must presume that a
suit lies outside this limited jurisdiction, and the burden
of establishing federal jurisdiction rests on the party
seeking the federal forum.”).
party seeking removal based on improper joinder of a
non-diverse defendant bears a “heavy” burden of
proving that the joinder was improper. Travis v.
Irby, 326 F.3d 644, 649 (5th Cir. 2003). To meet its
burden, the removing party must show an “(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. at 646-47. In the latter situation, “the
test for [improper] joinder is whether the defendant has
demonstrated that there is no possibility of recovery by the
plaintiff against an in-state defendant, which stated
differently means that there is no reasonable basis for the
district court to predict that the plaintiff might be able to
recover against an in-state defendant.” Smallwood
v. Illinois Cent. R. Co., 385 F.3d 568, 573-74 (5th Cir.
a court should “conduct a Rule 12(b)(6)-type analysis .
. . to determine whether the complaint states a claim under
state law against the in-state defendant.” Id.
at 573. However, where a plaintiff has omitted or misstated
“discrete facts that would determine the propriety of
joinder, ” the district court may “pierce the
pleadings and conduct a summary inquiry” to determine
whether a non-diverse defendant has been improperly joined.
Id. Although the court may consider “summary
judgment-type evidence in the record, ” it must resolve
all disputed questions of fact and ambiguities in the
controlling state law in favor of the plaintiff.
Travis, 326 F.3d at 649.
Analysis of Jurisdiction
makes two arguments in support of remand. First, Plaintiff
suggests that the doctrines of collateral estoppel, res
judicata, or “law of the case” are applicable and
mandate remand without further consideration. (R. Doc. 5 at
14-20). Second, Plaintiff argues that the Non-Diverse
Defendants are properly named such that remand is warranted.
(R. Doc. 5 at 20-27). In response to Plaintiff's first