United States District Court, W.D. Louisiana, Alexandria Division
DRELL JUDGE UNITED STATES DISTRICT COURT.
the Court is a motion for expedited consideration and remand
(Doc. 5) filed by Plaintiffs Derek Rabalais and his wife,
Pamela Rabalais, individually and on behalf of their minor
child, Addie Claire Rabalais. For the following reasons, the
motion will be GRANTED.
FACTS & PROCEDURAL HISTORY
allege that Addie Rabalais contracted salmonella poisoning
after eating undercooked chicken nuggets at a Burger King in
Marksville, Louisiana. They initially raised claims against
Strategic Restaurants Acquisition Company, LLC D/B/A Burger
King ("Burger King"), Jeremie Lavalais, Ashley
Dufour, and Broadspire Services, Inc. Significantly, Plaintiffs
allege that Lavalais was employed as a cook by Burger King on
the day of the incident and "admitted he 'pushed the
wrong button' in preparing the chicken nuggets served to
[Addie Rabalais], failing to cook them for the requisite
period of time." Lavalais is a resident of Marksville,
suit was originally filed in the 12th Judicial District Court
for the Parish of Avoyelles, State of Louisiana, on March 3,
2014. In a third amended and supplemental
petition for damages filed on June 24, 2019, Plaintiffs added
a new defendant, Navigators Insurance Company
("Navigators"). On August 7, 2019, Navigators filed a
notice of removal on the basis of diversity jurisdiction,
mere five days before this five-year old case is set for a
jury trial in state court on August 12, 2019.
LAW & ANALYSIS
diversity statute -28 U.S.C. § 1332-is satisfied upon a
showing of: (1) diversity of citizenship between the parties;
and (2) an amount in controversy in excess of $75, 000,
exclusive of interest and costs. "Complete diversity
requires that all persons on one side of the controversy be
citizens of different states than all persons on the other
side." See Harvey v. Grey Wolf Drilling Co.,
542 F.3d 1077, 1079 (5th Cir. 2008). The citizenship of an
individual is his or her domicile, meaning the place where an
individual resides and intends to remain. See Acridge v.
Evangelical Lutheran Good Samaritan Soc, 334 F.3d 444,
448 (5th Cir. 2003).
effect of removal is to deprive the state court of an action
properly before it, removal raises significant federalism
concerns. The removal statute is therefore to be strictly
construed, and any doubt about the propriety of removal must
be resolved in favor of remand. Gasch v. Hartford Ace.
& Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).
argues that Plaintiffs improperly joined Lavalais. To
demonstrate improper joinder of resident defendants, the
removing Defendants must demonstrate either: (1) actual fraud
in the pleading of jurisdictional facts, or (2) the inability
of Plaintiffs to establish a cause of action against the
non-diverse party in state court. See Gasch, 491
F.3d at 281.
relies on the second prong in this case. The threshold
question is whether there is no reasonable basis for the
district court to predict that Plaintiffs might be able to
recover against an in-state Defendant. The burden of proof is
on the removing party. See Gasch, 491 F.3d at 281.
In deciding whether a party was improperly joined, the Court
resolves all contested factual issues and ambiguities of
state law in favor of Plaintiffs. See Gasch, 491
F.3d at 281.
may predict whether a plaintiff has a reasonable basis of
recovery under state law in one of two ways. The court may
conduct a Rule 12(b)(6)-type analysis, looking initially at
the allegations of the complaint to determine whether the
complaint states a claim under state law against the in-state
defendant. Ordinarily, if a plaintiff can survive a Rule
12(b)(6) challenge, there is no improper joinder. See
Smallwood v. Illinois Cent. R. Co.,385 F.3d 568,
573 (5th Cir. 2004), cert, den., 544 U.S. 992 (2005).
However, there are cases in which a plaintiff has stated a
claim, but has misstated or omitted discrete facts that would