Opinion
Civil Action No. 00-3101, Section "C" (1).
December 8, 2000.
ORDER AND REASONS
Plaintiff filed this case in Civil District Court for the Parish of Orleans on August 21, 2000. Defendant filed a Notice of Removal of this matter on October 19, 2000, claiming that the non-diverse defendant — Bohn Brothers Toyota — had been fraudulently joined. (Rec. Doc. 1) On November 1, 2000, Plaintiff filed a Motion to Remand, contesting the Defendant's allegation of fraudulent joinder. After considering the submissions of the parties, the record and the relevant law, IT IS ORDERED THAT the Plaintiff's Motion to Remand is hereby GRANTED.
In 1997, Toni Ann Volpi Kientz purchased a Toyota 4-Runner from Bohn Brothers Toyota ("Bohn Brothers"). On January 2, 2000, Kientz was driving her automobile when she suddenly lost control of the car. The car rolled several times and Kientz was thrown from the vehicle. Kientz died soon thereafter as a result of her injuries. Plaintiff filed suit in state court against both the manufacturer, Toyota Motor Sales, U.S.A., and the vendor of the vehicle, Bohn Brothers Toyota. Toyota Motor Sales removed this case to federal court, alleging that, even though Bohn Brothers was a Louisiana corporation, plaintiff had fraudulently joined then on-diverse defendant because he could sustain no cause of action against Bohn Brothers.
The party seeking removal of a matter from state to federal court bears the burden of establishing the existence of federal jurisdiction. See Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992) (citing B. Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)). "Where charges of fraudulent joinder are used to establish this jurisdiction, the removing party has the burden of proving the claimed fraud." Dodson, 951 F.2d at 42. In reviewing the fraudulent joinder claim, all disputed questions of fact and all ambiguities in controlling state law are to be resolved in favor of the non-removing party.See id. The court must then "determine whether that party has any possibility of recovery against the party whose joinder is questioned." Id. at 42 (citing Carriere v. Sears. Roebuck and Co., 893 F.2d 98, 100 (5th. Cir.), cert. denied 498 U.S. 817 (1990)). The most crucial issue for this Court to determine is "whether [the plaintiff] has any possibility of recovery against the party whose joinder is questioned," because if "that possibility exists, then `a good faith assertion of such an expectancy in a state court is not a sham . . . and is not fraudulent in fact or in law.'" Dodson, 951 F.2d at 43 (quotingB., Inc., 663 F.2d at 550). "There can be no fraudulent joinder unless it be clear that there can be no recovery under the law of the state on the cause alleged." Parks 0v. New York Times Co., 308 F.2d 474, 478 (5th Cir. 1962), cert. denied 376 U.S. 949 (1964).
Plaintiff claims that Bohn Brothers is liable for (1) selling Toni Kientz a vehicle with known defects that were redhibitory in nature, (2) failing to warn her of those defects, and (3) other acts of fault to be proven at trial. Under the Louisiana Products Liability Act ("LPLA"), only the manufacturer may be held liable for the damages caused by its product. See La. Rev. Stat. 9.2800.53. A seller of a product is liable only under limited circumstances, such as when the seller "exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage" or when the seller operates as the "alter ego" of the manufacturer. See id. However, none of those circumstances is applicable in this case. See Defendant's Opposition, Exh. A. Furthermore, Bohn Brothers maintains, and Plaintiff did not allege, that Bohn Brothers had actual or constructive knowledge of any design defect in the car.See id. Therefore, Plaintiff will not be able to recover from Bohn Brothers under the LPLA.
Plaintiff may, however, have a valid cause of action against Bohn Brothers under Louisiana redhibition law. Redhibition claims arise from the warranty given by a seller that a product does not contain any defect that would "render [the product] useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect." La. Civ. Code Art. 2520. Redhibition claims are contractual in nature, and are independent of any tort remedies. While it is generally true that anon-manufacturer seller is immune from tort liability, see Louapre v. Toyota Motor Corp,. et al/, No. 97-3584 (E.D. La. 1998) (McNamara, J.), redhibition law provides for other contract-based recovery from a distributor who, without knowledge of a product's defects, passed the good along to a consumer. Article 2531 provides:
A seller who did not know that the thing he sold had a defect is only bound to repair, remedy, or correct the defect. If he is unable or fails so to do, he is then bound to return the price to the buyer with interest from the time it was paid, and to reimburse him for the reasonable expenses occasioned by the sale. . . .
La. Civ. Code Art. 2531. Under this Article, Plaintiff may be able to recover the amount paid for the vehicle to Bohn Brothers, even in the absence of any knowledge by Bohn Brothers about the steering defect. See also Scott v. The American Tobacco Co., 959 F. Supp. 340 (E.D. La. 1996) ("The language of Article 2531 . . . is clear and applies to a seller in good faith who has a right against the manufacturer. The article supports the viability of redhibition claims against a distributor and does not require knowledge of the defect on the part of the seller.").
It is irrelevant to this analysis that Bohn Brothers may ultimately be able to pass those costs along to the manufacturer as well. See La. Civ. Code Art. 2531.
Because Plaintiff has a potentially viable cause of action against Bohn Brothers, the Court finds that this non-diverse party wasnot fraudulently joined in the litigation. Therefore, IT IS ORDERED that Plaintiff's Motion to Remand is hereby GRANTED.
The Court finds that the Defendant wasnot objectively unreasonable in believing that removal was legally proper, and therefore the Court orders each party to bear their own costs related to these Removal and Remand proceedings. IT IS ORDERED THAT Plaintiff's request for attorney's fees under 28 U.S.C. § 1447 (c) is DENIED.