Opinion
Civil Action No: 02-0428 Section: "R" (1)
May 7, 2002
ORDER AND REASONS
Before the Court is plaintiffs' motion to remand this matter to state court pursuant to 28 U.S.C. § 1447 (c). Defendants claim that Philip Russell was fraudulently joined to defeat diversity jurisdiction. For the following reasons, the Court grants plaintiffs' motion to remand because it finds that Russell was not fraudulently joined.
I. Background
Sharlita Cousin, Genevieve Easterly, and Stephon Easterly sued Arnulfo Flores, his employer, Overnite Transportation, Inc., and Philip Russell for negligence on January 17, 2002, in Civil District Court for the Parish of Orleans, Louisiana. Plaintiffs also sued The Direct General Insurance Company, Russell's liability insurer, and The Progressive Insurance Company, Stephon Easterly's uninsured and underinsured motorist carrier. All defendants are diverse parties except for Russell, who is a citizen of Louisiana.
The Court notes that defendant's correct name is "Overnite Transportation Company." See Notice of Removal at ¶ 1.
On March 14, 2001, at about 9:30 p.m., Genevieve Easterly was driving Stephon Easterly's car westbound on the I-10 Expressway. Sharlita Cousin was a passenger in the Easterly car. Plaintiffs complaint alleges that Flores' truck veered out of control and hit Russell's car. It further alleges that the collision propelled the truck and the car into plaintiffs' vehicle. Plaintiffs contend that Flores, Overnite, and Russell are jointly liable in negligence for causing their injuries and the damage to Stephon Easterly's car. Defendants removed the matter to this Court based on diversity jurisdiction. Plaintiffs now move to remand this matter to state court. Defendants oppose the remand.
II. Discussion
Generally, a defendant may remove a civil action filed in state court if the federal court would have had original jurisdiction. See 28 U.S.C. § 1441 (a). Here, defendants assert that the Court has original jurisdiction under 28 U.S.C. § 1332.
The removing party bears the burden of establishing the existence of federal jurisdiction. See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). The jurisdictional facts supporting removal must be examined at the time of removal, and they are strictly construed. See Id.; Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988) (citing cases). If "at any time before final judgment" it appears that the Court lacks subject matter jurisdiction, the Court must remand the case to state court. 28 U.S.C. § 1447 (c).
Defendants' assertion of this Court's diversity jurisdiction hinges on their contention that plaintiffs fraudulently joined Russell and that his citizenship must therefore be ignored for jurisdictional purposes. To establish that plaintiffs fraudulently joined Russell, defendants bear the heavy burden of showing that there is no possibility that plaintiffs could establish a cause of action against Russell, or that there has been outright fraud in plaintiffs' recitation of the jurisdictional facts. See Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th Cir. 1995); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). In evaluating defendants' assertion of fraudulent joinder, the Court must consider all of the factual allegations in the light most favorable to the plaintiffs and resolve all of the contested issues of fact in favor of the plaintiffs. See Burden, 60 F.3d at 217. The Court may pierce the pleadings to determine fraudulent joinder, and, even though the petition may state a claim against the in-state defendant, the case may be removed if the defendants show by evidence outside the pleadings that there is no reasonable basis to predict that plaintiffs could establish a claim against the in-state defendant. Badon v. R J R Nabisco, Inc., 224 F.3d 382, 389, 394 (5th Cir.) ( Badon I), op. after certified question declined, 236 F.3d 282 (5th Cir. 2000) (Badon II) (there is no controversy to be construed in favor of nonremoving party when it submits no evidence of contradictory facts in response to the evidence of the removing party). See also B., Inc., 663 F.2d at 549. Furthermore, the Court must resolve any uncertainties as to the current state of controlling substantive law in favor of the plaintiff. B., Inc., 663 F.2d at 549. Thus, defendants must show, as a matter of law, that. "there is no reasonable basis for predicting that the plaintiff[s] might establish liability on [their] claim against [Russell]." Badon I, 224 F.3d at 390. See also Burden, 60 F.3d at 216 (District courts "do not determine whether the plaintiff will actually or even probably prevail on the merits of the claim, but look only for a possibility that the plaintiff might do so").
Here, defendants contend that Russell did nothing to contribute to the accident between Flores and plaintiffs. See Def.'s Memo. in Opp. to Mot. to Remand at 2. Defendants submit an affidavit from Flores in which he testifies that Russell did nothing to cause or contribute to the accident. See Flores Affidavit at ¶ 7. Flores asserts that he hit plaintiffs' vehicle with his 18 wheeler truck and then Russell's car hit his trailer. He further asserts that Russell's car never touched plaintiffs' car. See Id. at ¶¶ 4-9. Flores also states that the New Orleans police issued a citation to him for failure to control his motor vehicle, to which he pleaded guilty. Plaintiffs submit no contradictory proof. Indeed, their opposition memorandum differs from the complaint as to how the accident occurred. The complaint alleges that the Flores truck veered out of control and hit the Russell vehicle, causing them both to hit plaintiffs. The opposition memorandum asserts that Russell's Toyota struck the truck and propelled the truck into plaintiffs' car. As noted, plaintiffs submit no evidence for either version of events.
While the Court has strong doubts about the merits of plaintiffs' claims against Russell, it finds that defendants have failed to negate that there is any possibility that plaintiffs can state a claim against Russell. Plaintiffs' allegations seem to assert that the collision between Russell and Flores caused Flores, or both Flores and Russell, to collide with plaintiffs. Even if Flores is correct that Russell hit him after Flores hit plaintiffs, Russell could still be negligent for failure to keep a proper lookout. Further, the impact of Russell's car and the truck could conceivably have pushed the truck further into plaintiffs' car. Notably, Russell has nothing to say on the issue. Accordingly, the Court grants plaintiffs' motion to remand.
III. Conclusion
For the foregoing reasons, the Court GRANTS plaintiffs' motion to remand and remands the case to the Civil District Court of the Parish of Orleans, Louisiana.