Opinion
Civil Action No: 01-1186, SECTION: "R"(2).
July 5, 2001
ORDER AND REASONS
Before the Court is plaintiffs' motion to remand this matter to state court pursuant to 28 U.S.C. § 1447(c) and defendant's motion to dismiss pursuant to Federal Rule of Civil procedure 12(b)(6). For the following reasons, the Court denies plaintiffs' motion to remand and grants defendant's motion to dismiss.
I. BACKGROUND
On March 6, 2001, plaintiffs Margie B. Brown, Dianne Dugue, Lorraine Hunter and Glen Butler filed a petition for damages in state court against defendants Barriere Construction Co. and Caterpillar Inc. Plaintiffs seek damages for the injuries and death of George Butler, which was allegedly caused when he used a defective Caterpillar backhoe machine while he was employed by Barriere.
Defendant Caterpillar removed the case to this Court on April 18, 2001, invoking the Court's diversity jurisdiction. Caterpillar argues that plaintiffs fraudulently joined Louisiana resident Barriere in order to thwart removal. On May 3, 2001, plaintiffs moved to remand the case to state court.
II. DISCUSSION
A. Motion to Remand
Generally, a defendant may remove a civil action filed in state court if the federal court would have original jurisdiction. See 28 U.S.C. § 1441(a). Here, defendant asserts the Court's 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 as of the time of removal and 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 the contention that plaintiffs fraudulently joined Barriere and that Barriere's citizenship must therefore be ignored for jurisdictional purposes. To establish that Barriere was fraudulently joined, defendants bear the heavy burden of showing that there is no possibility that plaintiffs could establish a cause of action against Barriere, 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 plaintiffs. See Burden, 60 F.3d at 217. The Court may, however, pierce the pleadings to determine fraudulent joinder, and even though the petition may state a claim against the instate defendant, the case may be removed if the defendant shows by evidence outside the pleadings that there is no reasonable basis to predict that plaintiffs could establish a claim against the in-state defendant. See Badon v. RJR 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. See 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 [Barriere]." 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.").
In the case of an injured employee, Louisiana law provides that Workers' Compensation is the exclusive remedy for unintended injury. See LA. R.S. 23:1032. If the employer acted intentionally, the employee may exercise his right under the Compensation Act and pursue any other remedy against the employer available under general law. See Bazley v. Tortorich, 397 So.2d 475, 479 (La. 1981); see also Reeves v. Structural Pres. Sys., 731 So.2d 208, 210 (La. 1999). The Louisiana Supreme Court has narrowly defined "intent" in this context as either consciously desiring the physical result of an act or knowing that the result is "substantially certain" to follow from an act. See Bazley, 397 So.2d at 481. "Substantially certain" means "incapable of failing" or "inevitable." See Reeves, 731 So.2d at 213. Louisiana courts have found no intent when the employer knew that a machine was dangerous and that its operation created a high probability that someone will be injured from such use. See Holliday v. B. E. K. Const. Co., 563 So.2d 1333, 1334 (La.App. 3 Cir. 1990); see also Jacobsen v. Southeast Distrib., Inc., 413 So.2d 995, 996-98 (La.App. 4 Cir.), writ denied, 415 So.2d 953 (La. 1982) (intent found lacking when employer failed to provide specifically requested safety equipment); Cortez v. Hooker Chem. and Plastics Corp., 402 So.2d 249, 250-51 (La.App. 4 Cir. 1981) (accepting deficiently designed machinery and disregarding OSHA standards did not meet the intentional tort exception); Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La.App. 4 Cir. 1993) ("mere knowledge of an employer that a machine is dangerous and that its use, therefore, creates high probability that someone will eventually be injured is not sufficient to meet the 'substantial certainty' requirement). Likewise, the Louisiana Supreme Court has held that "believing that someone may or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act." Reeves, 731 So.2d at 212. Further, reckless and wanton conduct is insufficient. See id. at 213. Accordingly, Louisiana courts have "almost universally held that employers are not liable under the intentional act exception for violations of safety standards or for failure to provide safety equipment." Id. at 211-12 (citing cases).
Plaintiffs' alleged basis for liability against Barriere is as follows:
Defendant Barriere Construction had knowledge that the job it required Mr. Butler to be performed [sic] would require him to perform conduct that would nearly inevitably cause him to injure himself or cause his death because, among the reasons, Mr. Butler:
(a) was not properly trained to operate the machine;
(b) was required to work alone;
(c) was required to work with a poorly maintained machine;
(d) was required to work a job by his supervisor as punishment for complaining about Barriere's dangerous working condition.
( See Pl.'s Compl. at ¶ 5.) (Emphasis added).
First, plaintiffs do not allege that Barriere consciously desired Mr. Butler's death or injury. Nor do they allege that Barriere acted with knowledge that its conduct would "without fail" or "inevitably" cause injury or death. See Reeves, 731 So.2d at 213. Given the strictness of the test for an intentional tort, it is significant that plaintiff merely alleges that the tragic results were "nearly inevitable" as opposed to "inevitable." Further, there is nothing in plaintiffs' allegations of a lack of training, a poorly maintained machine, or Mr. Butler's working alone that would indicate that Barriere knew that injury or death would inevitably result. Moreover, defendants have submitted evidence in the form of affidavits from the Barriere Equipment Superintendent, Berry Benson Tucker, and a Barriere foreman, David McDaniel. These affidavits state that the backhoe had been used without incident prior to and after the accident involving George Butler. In addition, they attest that the backhoe was maintained on a regular basis. ( See Def's. Mem. Opp. Mot. to Remand Ex. A B). Mr. McDaniel testified that he gave Butler repeated instructions on how to safely operate the backhoe, that Butler was experienced in operating the equipment, that he had no reason to believe Butler would sustain injury or death as a result of using the backhoe, and that he did not intend to hurt Butler. ( See Def's. Mem. Opp. Mot. to Remand Ex. A). Plaintiffs have submitted no evidence at all, let alone anything that indicates that Barriere acted intentionally within the meaning of La. R.S. 23:1032(B). See Badon, 224 F.3d at 393 (affirming district court determination that claim was fraudulent when plaintiffs never tendered any evidence to refute defendants' affidavits or to support their allegations). The Court finds that there is no reasonable basis for predicting that Louisiana law might impose liability on Barriere. See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 816 (5th Cir. 1993). For this reason, the Court finds that Barriere was fraudulently joined, and the Court denies the motion to remand.
B. Barriere's Motion
Defendant Barriere also moves to dismiss plaintiffs' claims against it. As the Court has found that there is no reasonable basis for predicting that Louisiana law might impose liability against Barriere, the Court must dismiss Barriere from this action.
III. CONCLUSION
For the foregoing reasons, the Court denies plaintiffs' motion to remand and dismisses plaintiffs' claim against defendant Barriere.