Opinion
Civ. Action 5:23-01791
05-28-2024
MARIA DEJESUS PEREZ HUERTA ET AL v. KANSAS CITY SOUTHERN INC. ET AL
EDWARDS JUDGE
REPORT AND RECOMMENDATION
KAYLA DYE MCCLUSKY UNITED STATES MAGISTRATE JUDGE
Pending before the undersigned Magistrate Judge, on reference from the District Court, is a motion to remand [doc. #13], filed by Plaintiffs Maria de Jesus Perez Huerta, Maria Estela Acero Rodriguez, Heraclio Ruiz Mendez, Fredy Omar Martinez Betancourt, Lourdes Margarita Pinales, and Estafania Alejandra Pinales. The motion is opposed. [doc. #25].
For reasons assigned below, it is recommended that the motion to remand [doc. #13] be DENIED, and all claims against Defendant Larry Edward Jameson, Jr. be DISMISSED WITHOUT PREJUDICE.
Background
Plaintiffs Maria de Jesus Perez Huerta, Maria Estela Acero Rodriguez, Heraclio Ruiz Mendez, Fredy Omar Martinez Betancourt, Lourdes Margarita Pinales, and Estafania Alejandra Pinales (“Plaintiffs”) filed the instant petition against Defendants Kansas City Southern Inc. (“KCS”), Kansas City Southern de Mexico (“KCSM”), and Larry Edward Jameson, Jr., on November 2, 2023, in the First Judicial District Court, Caddo Parish, Louisiana. Petition for Damages [doc. #1-1, pp. 9-23]. KCS removed the action to this court on December 27, 2023. Notice of Removal [doc. #1]. Plaintiffs seek damages resulting from a train accident that occurred in Garcia, Nuevo Leon, Mexico, on November 2, 2022 (“the Accident”). Petition for Damages [doc. #1-1, pp. 12-23]. On that date, a train struck a public bus at a road crossing. Id. at p. 12. The train pushed the bus in front of it as it continued down the track until the bus struck a car, which was also pushed along the train's path before flipping upside down. Id. Huerta is the surviving wife of Juan Miguel Gonzalez Lariz, the driver of the car who perished in the Accident, while Mendez, Hernandez, and Betancourt were passengers in the vehicle. Id. at pp. 12-13. Rodriguez and the Pinales sisters were passengers on the bus. Id. at p. 13.
Plaintiffs filed the instant motion to remand on January 26, 2024. M/Remand [doc. #13]. KCS filed its opposition to the motion on March 21, 2024. Opposition to M/Remand [doc. #25].
Briefing is complete. Accordingly, the matter is ripe.
Analysis
I. Legal Standard
A defendant may remove an action from state to federal court, provided the action is one in which the federal court may exercise original jurisdiction. Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing 28 U.S.C. § 1441(a)). Federal courts are courts of limited jurisdiction. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). As this creates a presumption against federal jurisdiction, see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“It is to be presumed that a cause lies outside this limited jurisdiction ....”), the removal statute is to be construed “strictly against removal and for remand.” Hicks v. Martinrea Automotive Structures, Inc., 12 F.4th 511, 514-15 (5th Cir. 2021). The party invoking federal jurisdiction bears the burden of proving the suit lies within the court's limited jurisdiction. Howery, 243 F.3d at 916.
One path to secure federal jurisdiction on removal is through diversity, which requires (a) complete diversity of citizenship between plaintiffs and defendants, and (b) an amount in controversy greater than $75,000. 28 U.S.C. § 1332(a). Removal predicated on diversity jurisdiction is impermissible “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Id. at § 1441(b)(2).
II. Discussion
According to KCS, this Court has diversity jurisdiction over the instant action. Notice of Removal [doc. #1, p. 4]. While KCS admits that Jameson is a citizen of Louisiana, it argues that he has not been properly served or joined. Id. at pp. 5-12. Plaintiffs counter that Jameson was both properly served and joined. Memo in Support of M/Remand [doc. #13-1, pp. 6-15].The propriety of remand thus turns on these two considerations. Accordingly, the undersigned determines whether Jameson has been properly served before analyzing whether he is improperly joined.
a. Service of Jameson
The undersigned first assesses whether Jameson has been properly served in the instant matter. In cases removed to federal court, the sufficiency of service of process is determined by state law. See id. (finding determination of whether party in removed case was properly served turns on state law of court removed from). Under Louisiana law, domiciliary service “is made when a proper officer leaves the citation or other process at the dwelling or usual place of abode of the person to be served with a person of suitable age and discretion” residing therein. LA. CODE CIV. PROC. art. 1234. The determination of whether a target of service dwells or abides at a location “depends on the actual and true facts at the time of service and not on information furnished by the defendant at some time prior to the service.” KCREW Invs., LLC v. Clark, 324 So.3d 242, 245 (La.App. 2 Cir. 6/30/21) (citing Spinks v. Caddo-Bossier Servs., Inc., 270 So.2d 604, 607 (La.App. 2 Cir. 9/12/72)).
It is worth noting that removal to federal court does not waive the removing defendant's right to object to service of process. City of Clarksdale v. BellSouth Telecomm., 428 F.3d 206, 214 n.15 (5th Cir. 2005).
The record indicates that Plaintiffs attempted to serve Jameson at 11055 Morton Road, Keithville, Louisiana (“the Morton Road Property”) on November 15, 2023. Exhibit A to Notice of Removal [doc. #1-1, p. 4]. On that date, process was putatively served on one “Samuel Jamison.” Id. This individual was in fact Samuel Jameson, who is Jameson's adult son. Notice of Removal [doc. #1, p. 6]. Plaintiffs insist that this attempted service was sufficient as “Jameson [had] legally declared the Morton [Road] address his abode at every conceivable opportunity in the last two years.” Memo in Support of M/Remand [doc. #13-1, p. 9]. They point to three documents that ostensibly support this contention. First, in March of 2022, the Morton Road Property was quitclaimed to Jameson. Id.; Quit Claim Deed [doc. #13-2]. Then, in November of that year, a document wherein Jameson conveyed the mineral rights of the Morton Road Property identified that location as his mailing address. Memo in Support of M/Remand [doc. #13-1, p. 9]; Mineral and Royalty Conveyance [doc. #13-3]. Finally, “[a]s recently as 2024,” the Caddo Parish Assessor's Officer identified the Morton Road Property as owned by Jameson and listed it as his mailing address. Memo in Support of M/Remand [doc. #13-1, p. 9]; see also Caddo Parish Tax Report [doc. #13-4].
None of these documents establish that the Morton Road Property was Jameson's dwelling or usual place of abode at the time service was attempted. The quitclaim document may tend to show ownership, but it does not evidence that Jameson lived at the Property. The other documents show that Jameson directed mail to, and had ownership of, the Morton Road Property, but, again, that does not show that he lived there. See State ex rel. Dep't of Soc. Servs., Off. Of Fam. Support, Support Enforce. Serv. v. Langlois, 874 So.2d 216, 219 (La.App. 1 Cir. 3/3/04) (“An address provided on a written document does not establish a person's actual dwelling place for purposes of domiciliary service.”). In short, the three tethers tying Jameson to the Morton Road Property are not strong enough to support service at that location.
The inability to establish the Morton Road Property as Jameson's dwelling or usual place of abode is sufficient to determine that he was not properly served. Nonetheless, KCS proffers evidence that Jameson dwelt in Catahoula Parish, Louisiana, when he was putatively served. Opposition to M/Remand [doc. #25, p. 9]; Declaration of L. Jameson [doc. #25-1, p. 2]. KCS also points out that, on an application for electric utility service submitted in August 2023, Jameson listed his mailing address as a P.O. box in Grant Parish, not the Morton Road Property. Opposition to M/Remand [doc. #25, p. 10]; Application for Membership and Electric Service [doc. #25-1, p. 14]. Jameson has declared, under penalty of perjury, that the Morton Road Property was not his dwelling or usual place of abode at the time Plaintiffs attempted to serve him and provided further objective evidence to support that declaration. Declaration of L. Jameson [doc. #25-1]. Consequently, Jameson has not been properly served in this matter. Denial of the motion for remand is proper on this basis alone.
b. Improper Joinder of Jameson
Should the Court conclude that Jameson was, in fact, properly served, the specter of improper joinder remains. A defendant that would defeat diversity is improperly joined if “a plaintiff is unable ‘to establish a cause of action against the non-diverse party in state court.'” Hicks, 12 F.4th at 515 (citing Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir. 2004)). “[Improper] joinder can be established in two ways: (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.” Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003). There are no allegations of actual fraud in the instant case, so the undersigned limits analysis to the second test. When considering a plaintiff's ability to establish a cause of action against non-diverse parties, the Court must determine “whether there is arguably a reasonable basis for predicting that state law might impose liability.” Ross v. Citifinancial, Inc., 344 F.3d 458, 462 (5th Cir. 2003). “This means there must be a reasonable possibility of recovery, not merely a theoretical one.” Id. (citing Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)). “Nonetheless, the burden of persuasion on those claiming [improper] joinder remains a heavy one.” Id.
There are two ways to predict the imposition of liability: (1) the court can look at the allegations of the complaint to determine whether a claim is stated against the diversitydestroying defendants under state law; or (2) in the few cases where the plaintiffs have stated a claim, but have misstated or omitted discrete facts that would determine the propriety of joinder, the court may, in its discretion, “pierce the pleadings” and conduct a summary inquiry. Smallwood, 385 F.3d at 573. The first test (“the Claim Inquiry”) has been likened to the analysis used in Rule 12(b)(6) challenges. Id. (“Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.”); see also FED. R. CIV. P. 12(b)(6). To survive the Claim Inquiry, a complaint “must [contain] ‘enough facts to state a claim to relief that is plausible on its face.'” Hicks, 12 F.4th at 515 (citing Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 200 (5th Cir. 2016)). The second test is “appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff's recovery against the in-state defendant.” Smallwood, 385 F.3d at 573-74. If the plaintiff (a) cannot state a claim against the non-diverse defendant, or (b) successfully states a claim but fails to rebut evidence sufficient to preclude recovery, then improper joinder has occurred, and the district court properly has jurisdiction over the case. In such a case, it is appropriate to dismiss without prejudice all claims against any improperly joined defendants. Int'l Energy Ventures, 818 F.3d at 210. The United States Court of Appeals for the Fifth Circuit has previously made clear that a “court may choose to use either one of these two analyses, but it must use one and only one of them, not neither or both.” Id. The undersigned proceeds with the Claim Inquiry.
Under Louisiana law, an employee may be held individually liable for injuries to third persons. Guillory v. PPG Industries, Inc., 434 F.3d 303, 312 (5th Cir. 2005) (citing Canter v. Koehring Co., 283 So.2d 716, 722 n.7 (La. 1973), superseded on other grounds by statute as stated in Peironnet v. Matador Res. Co., 144 So.3d 791 (La. 2013)). Such liability may arise “for injury resulting from [the employee's] fault independent of any obligation imposed upon him by virtue of his employment duties, even though the fault occurs during the course of his employment.” Id. An employee may also be personally liable if (1) the employer owed a duty of care to a third person; (2) the employer delegated that duty to a defendant-employee; and (3) the defendant-employee breached the duty through his own fault or lack of ordinary care. Moore v. Manns, 732 F.3d 454, 456-57 (5th Cir. 2013) (citing Canter, 283 So.2d at 722 n.7).
As the Claim Inquiry is being utilized, the undersigned now analyzes whether the controlling pleadings state a plausible claim against Jameson. See City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148, 152-53 (5th Cir. 2010) (To survive a Rule 12(b)(6) motion, “plaintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim.”); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). Turning to the Plaintiff's petition, very few allegations specifically concern Jameson. He is identified as “the Road Foreman of Engines, who trained and monitored Locomotive Engineers and delivered continu[ing] education material to all T&E.” Petition for Damages [doc. #1-1, p. 12]. It is further alleged that Jameson “was the trainer over the supervisors who specifically were involved in training of the crew at issue.” Id. While there are general allegations against “KCS Defendants,” see id. at pp. 13-19, most of these references could not conceivably implicate Jameson. See, e.g., id. at p. 17 (“The train crew of said train, respectively, were agents, employees, and servants of KCS Defendants, and operated the train in the scope and course of their employment with KCS Defendants ....”); see also Badon v. R J R Nabisco Inc., 224 F.3d 382, 393 (5th Cir. 2000) (“While the [pleadings do] not often use the word ‘defendants,' frequently it is evident that such usage could not be referring to [a specified defendant.]”).
Furthermore, and rather curiously, Plaintiffs never specifically allege that Jameson is employed by, an agent of, or otherwise affiliated with KCS or KCSM.
However, Jameson readily admits that he was formerly employed by KCS. Declaration of L. Jameson [doc. #25-1, p. 1].
These allegations do not concern any purported delegation of a duty to Jameson by his employer. Plaintiffs fail to allege any facts specifying Jameson's duties or the scope of his responsibilities, whether delegated by KCS or otherwise. Put bluntly, “[a]sserting a job title is not tantamount to alleging the factual basis for a duty.” Vallee v. Crown Equip. Corp., No. 201571, 2020 WL 8265340, at *4 (E.D. La. Nov. 10, 2020). Plaintiffs have thus failed to plead that any relevant duties were delegated to Jameson. For substantially the same reasons, Plaintiffs have failed to establish that Jameson owed them a personal duty. The barebones allegations against Jameson leave the undersigned to assume any putative personal duty of care would arise from his general administrative duties of employment. As this court has observed, Louisiana law does not recognize a duty of care predicated solely on an employee's general administrative responsibilities. See Carter v. Wal-Mart Stores Inc., No. 04-0072, 2005 WL 1831092, at *3 (W.D. La. July 28, 2005).
Plaintiffs have also failed to plead that Jameson breached a duty (delegated or otherwise). There are no allegations that Jameson knew of, should have known of, caused, or contributed to any conditions associated with the Accident. The pleadings indicate that Jameson trained “the supervisors who specifically were involved in training” the crew allegedly involved with the Accident. The supervisors and the crew are unnamed in the pleadings. Even if the pleadings showed that Jameson had a relevant duty, it would nonetheless strain credulity to find any such duty was breached by Jameson's alleged failure to properly train unnamed individuals who then themselves failed to supervise further unnamed individuals. This chain of events - which is insufficiently alleged - does not plausibly establish a breach of duty. In summation, Plaintiffs have failed to establish that a duty was delegated to Jameson, that he owed a personal duty to Plaintiffs, or that Jameson breached any putative duty. Plaintiffs are thus unable to state a claim against Jameson.
Accordingly, it is RECOMMENDED that the motion to remand be denied and all claims against Jameson be dismissed without prejudice.
Conclusion
For the foregoing reasons, IT IS RECOMMENDED that the Plaintiffs Maria de Jesus Perez Huerta, Maria Estela Acero Rodriguez, Heraclio Ruiz Mendez, Fredy Omar Martinez Betancourt, Lourdes Margarita Pinales, and Estafania Alejandra Pinales' motion to remand [doc. #13] be DENIED and all claims against Defendant Larry Edward Jameson, Jr. be DISMISSED WITHOUT PREJUDICE.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and FED. R. CIV. P. 72(b), the parties have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. A courtesy copy of any objection or response or request for extension of time shall be furnished to the District Judge at the time of filing. Timely objections will be considered by the District Judge before he makes a final ruling.
A PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.
In Chambers, at Monroe, Louisiana, on this 28th day of May, 2024. KAYLA DYE