United States District Court, E.D. Louisiana
ORDER AND REASONS
the Court are plaintiff Gavin Sylve's Motion to Remand
(Rec. Doc. 24), defendants Charles Lambert, C & S Canopy,
Inc., and FCCI Insurance Group's
(“defendants”) Response in Opposition (Rec. Doc.
28), plaintiff's Reply (Rec. Doc. 37), and
defendants' Sur-Reply (Rec. Doc. 39). Accordingly,
IT IS ORDERED that the motion to remand is
GRANTED, and this action is
REMANDED back to the Civil District Court
for the Parish of Orleans for further proceedings.
AND PROCEDURAL HISTORY
instant controversy arises out of a multiple automobile
collision between plaintiff, defendant Charles Lambert, and
recently joined defendant Lori Lott. See Rec. Doc.
24-1 at 1.
March 2, 2018, plaintiff filed suit against defendants in the
Civil District Court for the Parish of Orleans, State of
Louisiana. See Rec. Doc. 24 at 1. On May 2, 2018,
defendants filed a notice of removal in this Court asserting
diversity jurisdiction. See id. at 3. On May 9,
2018, defendants filed their answer asserting third-party
fault as an affirmative defense. See id. On July 19,
2018, plaintiff sought leave to amend his Complaint to join
Lott and her insurer, State Farm Automobile Insurance
Company, as defendants. See id. Specifcally,
plaintiff sought to add the following allegation:
“Alternatively, prior to being struck by Charles
Lambert, Linda Lott struck the rear of [Plaintiff's]
vehicle.” Id. Defendants objected to the
proposed amendment. See id. at 2. On August 16,
2018, Magistrate Judge Janis van Meerveld granted
plaintiff's Motion to Amend and permitted joinder of Lott
and her insurer. See id. at 3.
September 13, 2018, plaintiff filed a motion to remand,
seeking to remand his lawsuit because Lott and her insurer,
having Louisiana citizenship, destroy diversity. See
id. at 4. On October 12, 2018, defendants filed a
response in opposition alleging that plaintiff is unable to
establish a cause of action against Lott and therefore Lott
was improperly joined. See Rec. Doc. 28. On October
22, 2018, plaintiff replied. See Rec. Doc. 37. On
October 23, 2018, defendants sur-replied. See Rec.
party may remove an action from state court to federal court
if the action is one over which the federal court possesses
subject matter jurisdiction.” Manguno v. Prudential
Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002)(citing 28 U.S.C. § 1441(a)).
The removing party bears the burden of showing that federal
jurisdiction exists and that removal was proper. De
Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.
1995); Jernigan v. Ashland Oil Inc., 989 F.2d 812,
815 (5th Cir. 1993) (per curiam); Willy v. Coastal
Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). To determine
whether jurisdiction is present for removal, we consider the
claims in the state court petition as they existed at the
time of removal. Cavallini v. State Farm Mut. Auto Ins.
Co., 44 F.3d 256, 264 (5th Cir. 1995). Any ambiguities
are construed against removal because the removal statute
should be strictly construed in favor of remand. Acuna v.
Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.
Id. “When original federal jurisdiction is
based on diversity, however, a defendant may remove only
‘if none of the parties in interest properly joined and
served as defendants is a citizen of the State in which such
action as brought.'” Gasch v. Hartford
Acc. & Indem. Co., 491 F.3d 278, 281 (5th Cir.
2007)(citing 28 U.S.C. § 1441(b)). Where such a party is
joined, the removing party may nevertheless seek to remove on
the basis of diversity jurisdiction by demonstrating that the
non-diverse party was improperly joined.
demonstrate improper joinder of resident defendants, the
removing defendants must demonstrate either: (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.” Gasch, 419
F.3d at 281 (internal quotation marks and citations omitted).
Under the latter, the threshold question is “whether
there is no reasonable basis for the district court to
predict that the plaintiff might be able to recover against
an in-state defendant. The burden of proof is on the removing
party.” Id. Courts resolve “all
contested factual issues and ambiguities of state law in
favor of the plaintiff.” Id.
known as the “fraudulent joinder” doctrine.
See Cobbs v. Delta Exports. Inc., 186 F.3d 675, 677
(5th Cir. 1999). “The fraudulent joinder doctrine does
not apply to joinders that occur after an action is removed.
[The Fifth Circuit's] caselaw reflects that the doctrine
has permitted courts to ignore . . . only those non-diverse
parties on the record in state court at the time of
removal.” Id. (emphasis in original).
“The doctrine simply does not apply to defendants who
are joined after an action is removed, for in such cases, the
defendants have a chance to argue against joinder before the
court grants leave to amend.” Id. at 678.
argue diversity jurisdiction should be maintained because
plaintiff is unable to articulate how Lott, whose vehicle was
hit from behind after making an alleged safe and complete
stop, acted negligently to cause plaintiff's injuries.
See Rec. Doc. 28 at 5. Defendants ask for a summary
judgment-like procedure to dispose of defendants'
fraudulent joinder claims. See id. at 4. Defendants
argue undisputed affidavits and plaintiff's deposition
testimony show that Lott has no potential liability. See
id. at 3, 5-6; Rec. Doc. 39 at 3. Defendants
belatedly offer to stipulate that defendants will not allege
or assert that Lott is liable in any way. See Rec.
Doc. 39 at 2. However, as it did before the Magistrate Judge,
defendant has not effectively waived its defense of liability
or fault against Lott. See Rec. Doc. 20 at 4-5. We
decline the invitation to negotiate a ruling based on
conditional offers and nonexistence facts.
case, remand is proper. Plaintiff sought leave to amend his
complaint to join Lott and her insurer as defendants
after the lawsuit was removed to this Court.
See Rec. Doc. 11. Defendants were given a chance to
argue against joinder of Lott and her insurer. See
Rec. Doc. 13. The Magistrate Judge permitted plaintiff to
join Lott and her insurer as defendants after finding that
such joinder was not fraudulent or improper because
plaintiff's demonstrated purpose of joinder was not to
destroy diversity. See Rec. Doc. 20 at 5. Therefore,
even with plaintiff's deposition testimony, remand is
proper. See Cobbs, 186 F.3d at 677 (stating that
once a district court grants a motion for leave to amend and
permits joinder of non-diverse defendants, the court loses