Opinion
No. 01-91 C/W 01-92
February 23, 2001
Before the Court are the following opposed motions:
CA 01-91, Defendant Bridgestone's Motion to Stay;
CA 01-91, Defendant State Farm's Motion for Summary Judgment;
CA 01-91, Plaintiff James McQuilkin's Motion to Remand;
CA 01-92, Defendant Bridgestone's Motion to Stay; and
CA 01-92, Plaintiff Karen McQuilkin's Motion to Remand.
The motions, set for hearing on February 28, 2001, are before the Court on the briefs without oral argument.
While the motions are not set until February 28, 2001, the Court has received responses from all interested parties.
After considering the arguments presented by counsel and the applicable law, the Court cannot say that there is no possibility of recovery against the non-diverse defendant Bill Watson Ford, Inc. Other courts have held, under the same or similar circumstances, that the purchaser (of a vehicle) has a cause of action in redhibition against the car dealership. See, e.g., Kientz v. Bohn Bros. Toyota, 2000 WL 1808496 (E.D. La. Dec. 8, 2000). Consequently, the Court concludes that defendants have failed to show that Bill Watson Ford, Inc. was fraudulently joined. And given that Bill Watson Ford, Inc. is non-diverse in citizenship from plaintiffs, the Court lacks subject matter jurisdiction over these consolidated suits, and the suits must be remanded to state court pursuant to 28 U.S.C. § 1447 (c).
Defendants have suggested that the Court should refrain from ruling on the motions to remand because a conditional transfer order transferring these matters to the MDL court is in place. However, the transfer order is not yet final, and it is beyond cavil that "[d]uring the pendency of a motion . . . for transfer, . . . the court in which the action was filed retains jurisdiction over the case." MANUAL FOR COMPLEX LITIGATION 3rd § 31.131 (citations omitted). "Matters such as motions to dismiss or to remand, raising issues unique to the particular case, may be resolved before the panel acts on the motion to transfer." Id. This seems especially true in cases like this one, where the motion to remand centers on questions of state law with which the transferor court is more likely to be familiar than the MDL transferee court. Accordingly;
IT IS ORDERED that the Motions to Remand filed by plaintiffs in CA01-91 (Rec. Doc. 7) and CA01-92 (Rec. Doc. 7) should be and are hereby GRANTED, and the consolidated actions are hereby REMANDED to the Civil District Court for the Parish of Orleans.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed by State Farm in CA01-91 (Rec. Doc. 9) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Motions to Stay filed by defendant Bridgestone in CA01-91 (Rec. Doc. 2) and CA01-92 (Rec. Doc. 2) are DENIED AS MOOT.