Opinion
CIVIL ACTION NO. 03-1669, SECTION "K"(4)
August 15, 2003
Before the Court is plaintiffs Gerald and Sena Gulotta's Motion to Remand. (Doc. No. 7). Having reviewed the pleadings, memoranda, exhibits and the relevant law, the Court finds no merit in the motion.
Plaintiffs filed suit in the Fortieth Judicial District Court for the Parish of St. John, Louisiana on May 13, 2003. In the petition, plaintiffs contend that Gerald Gulotta was preparing to descend a ramp allegedly provided by defendant GE Capital Modular Space ("GE") when the ramp suddenly swayed, causing plaintiff to lose his balance and fall four feet. He alleges that his injuries were caused by the dangerous and defective condition of the ramp owned by GE. The petition itself does not contain a single allegation as to the actions taken by Sandy Theriot that would cause her to be liable to plaintiffs.
The matter was removed by the defendants on June 12, 2003 in which defendants contended that diversity of citizenship form the basis for the removal as Sandy Theriot, an employee of GE Capital Modular Space was fraudulently joined in order to destroy diversity.
Plaintiffs then filed the instant motion to remand contend that "Ms. Theriot is in fact a proper defendant in this action, as she was not only the agent for GE Captial (sic), but also had a direct role in the design and installation of the platform which ultimately caused plaintiffs injuries." (Memorandum in Support of Motion to Remand p. 5). Pretermitting the fact that the allegations are absent from the petition, defendant Sandy Theriot has filed an affidavit stating that she is a sales representative for GE. As such she communicates with customers about the modular buildings accessories, and options that they wan to lease from GE and executing the necessary paperwork to finalize the lease. She does not participate in preparing transporting, or setting up the modular buildings or their accessories or options.
Standard for Motion to Remand
The non-movant carries a heavy burden in establishing fraudulent joinder and must demonstrate it by clear and convincing evidence. Jernigan v. Ashland Oil, 989 F.2d 812, 814 (5th Cir. 1993). "[T]he question is whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved. If that possibility exists, a good faith assertion of such an expectancy in a state court is not a sham, is not colorable and is not fraudulent in fact or in law." Travis v. Irby. 326 F.3d 644, 647 (5th Cir. 2003). This possibility that state law may impose liability, however, must be reasonable, not merely theoretical. Travis, at 648 (5th Cir. 2003); Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 312 (5th Cir. 2002).
Fraudulent joinder claims can be resolved by "piercing the pleadings" and considering summary judgment-type evidence such as affidavits and deposition testimony. Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir. 1994). Furthermore, district courts should resolve all disputed questions of fact and substantive law in favor of the plaintiff.Jackson v. Pneumatic Prod. Corp., No. 00-3615, 2001 WL 238214, *1 (E.D.La. Mar. 6, 2001). Finally, "[i]f the right to remove is doubtful, the case should be remanded." Sullivan v. Gen-Corp, Inc., 1995 WL 321743, *2 (E.D.La. May 24, 1995) (Duval, J.) (quoting Ryan v. Dow Chemical Co., 781 F. Supp. 934, 939 (E.D.N.Y.1992)).
Under Louisiana law, individual liability of an employee for a work-related function can only exist if there was a breach of a personal duty of care to another. The conditions to be met in order to find such a breach of a personal duty are outlined by the Louisiana Supreme Court as follows:
(1) The employer must owe a duty of care to the third person, the breach of which has caused the damage for which recovery is sought;
(2) This duty is delegated by the employer to the employee;
(3) The employee has breached this duty through personal fault (as contrasted with technical or vicarious fault);
(4) With regard to personal fault, personal liability cannot be imposed upon an employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiffs damages.Hayden v. Acadian Gas Pipeline, 1997 WL 180380, *2 (E.D. La. Apr. 10,1997) (quoting Canter v. Koehring Co., 283 So.2d 716, 721 (La. 1973). Considering that Sandy Theriot had no duty to inspect or install the ramp in question, there can be no liability and thus, she has been fraudulently joined. Oddly, there is also evidence that GE had no ownership over or responsibility for the ramp in question; however, the question of GE's liability will be for another day. Accordingly,
IT IS ORDERED that the Motion to Remand is DENIED.