Sistrunk et al v. Dake Corporation et al
Filing
17
ORDER AND REASONS denying 14 MOTION to Remand filed by James Sistrunk, Susan Sistrunk. Pursuant to Federal Rule of Civil Procedure 21, the claims against Pellerin Milnor Corporation and Frank Mamola are DISMISSED.. Signed by Chief Judge Sarah S. Vance on 12/12/13.(jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES SISTRUNK, et al.
CIVIL ACTION
VERSUS
NO: 13-2983
DAKE CORPORATION, et al.
SECTION: R(4)
ORDER AND REASONS
Plaintiffs move the Court to remand this case to state
court.1 The Court DENIES the motion, because it finds that
diversity jurisdiction exists, as the plaintiffs improperly
joined the two in-state defendants.
I.
Background
Plaintiffs James and Susan Sistrunk sued defendants Dake
Corporation and JSJ Corporation (the "removing defendants") in
state court.2 The plaintiffs are citizens of Louisiana, and the
removing defendants are citizens of Michigan.3 The plaintiffs
allege that James Sistrunk suffered serious injuries in the
course of his employment, when part of a shaft broke loose during
1
R. Doc. 14.
2
R. Doc. 1-1 at 7.
3
Id.
operation of a hydraulic press that was designed and manufactured
by the removing defendants.4
The plaintiffs then filed an amended state court petition,
naming as additional defendants Pellerin Milnor Corporation
("PMC") and Frank Mamola, both Louisiana citizens.5 PMC was
Sistrunk's employer at the time of the alleged injury, and Mamola
was his supervisor.6 The plaintiffs allege that PMC and Mamola
knew that the hydraulic press should be outfitted with a guard
and knew that Sistrunk was not protected by a guard or any
similar device and thus was exposed to "certain injury from
projectiles."7 They further allege that these conditions
indicated that injury to Sistrunk was inevitable or substantially
certain to occur.
Dake Corporation and JSJ Corporation removed the suit to
this Court on grounds of diversity jurisdiction.8 The plaintiffs
4
Id.
5
Id. at 3. The plaintiffs' amended petition also names John
Doe, apparently an unidentified employee of PMC, as a defendant.
Id. at 4. In determining whether a civil action is removable, the
Court disregards the citizenship of defendants sued under
fictitious names. 28 U.S.C. § 1441(b). Accordingly, the Court
disregards Doe's citizenship in determining whether this action
is removable.
6
Id. at 4, 7.
7
Id. at 4.
8
R. Doc. 1.
2
moved to remand.9 They argue that, since PMC and Mamola are
Louisiana citizens, there is not complete diversity between
plaintiffs and defendants, and the Court lacks subject matter
jurisdiction over the action.10 Defendants oppose the motion to
remand, arguing that PMC and Mamola are improperly joined and
should be dismissed from the suit.11 PMC and Mamola seek
dismissal under Federal Rule of Civil Procedure 21.12
II.
Legal Standard
A defendant generally may remove a civil suit filed in state
court if the federal court has original jurisdiction over the
action. 28 U.S.C. § 1441(a). The removing party bears the burden
of establishing federal jurisdiction. Allen v. R & H Oil & Gas
Co., 63 F.3d 1326, 1335 (5th Cir. 1995). In assessing whether
removal is appropriate, the Court is guided by the principle,
grounded in notions of comity and the recognition that federal
courts are courts of limited jurisdiction, that removal statutes
should be strictly construed in favor of remand. See Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
9
R. Doc. 14.
10
R. Doc. 14-1 at 1.
11
R. Doc. 15 at 8; R. Doc. 16.
12
R. Doc. 16 at 2.
3
2002). Accordingly, "[a]ny ambiguities are construed against
removal." Id.
For a federal court to exercise diversity jurisdiction, the
amount in controversy must exceed $75,000, and there must be
complete diversity between plaintiffs and defendants. See 28
U.S.C. § 1332(a); Owen Equip. & Erection Co. v. Kroger, 437 U.S.
365, 373 (1978). Here, the parties do not dispute that the amount
in controversy is sufficient. Thus, the only dispute is whether
the complete diversity requirement is satisfied. When a plaintiff
properly joins one or more defendants with whom she shares
citizenship, no defendant may remove the case to federal court.
See McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir.
2004). But a defendant may remove by showing that the non-diverse
defendants are improperly joined. Smallwood v. Ill. Cent. R.R.
Co., 352 F.3d 220, 222 (5th Cir. 2003).
The fraudulent joinder doctrine is a narrow exception to the
rule requiring complete diversity, and the burden of
demonstrating improper joinder is a heavy one. Id. A defendant
may establish improper joinder by showing either (1) actual fraud
in pleading jurisdictional facts, or (2) the plaintiff's
inability to establish a cause of action against the non-diverse
parties in state court. Id. at 222-23. Here, there is no
allegation that the plaintiffs fraudulently pleaded
jurisdictional facts. Accordingly, only the second prong of the
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improper joinder test is at issue. Under this prong, the Court
asks whether there is arguably a reasonable basis for predicting
that state law might impose liability on the non-diverse
defendants. Id. at 223 (quoting Jernigan v. Ashland Oil Inc., 989
F.2d 812, 816 (5th Cir. 1993)) (quotation marks removed).
To decide whether a plaintiff has demonstrated a reasonable
possibility of recovery, "the district court may 'conduct a Rule
12(b)(6)-type analysis, looking initially at the allegations of
the complaint to determine whether the complaint states a claim
under state law against the in-state defendant.'" Menendez v.
Wal–Mart Stores, Inc., 364 F. App'x 62, 69 (5th Cir. 2010) (per
curiam) (quoting Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568,
573 (5th Cir. 2004)). The scope of the inquiry for improper
joinder, however, is broader than that for Rule 12(b)(6), because
the Court may "pierce the pleadings" and consider summary
judgment-type evidence to determine whether the plaintiff has a
basis in fact for her claim. Smallwood, 352 F.3d at 223 n.8
(citing Travis v. Irby, 326 F.3d 644, 648–49 (5th Cir.2003)); see
also Menendez, 364 F. App'x at 69. In conducting this inquiry,
the Court must "take into account all unchallenged factual
allegations, including those alleged in the complaint, in the
light most favorable to the plaintiff." Travis, 326 F.3d at 649.
Further, the Court must resolve all contested issues of fact and
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all ambiguities of state law in favor of the plaintiff. Id.; Elam
v. Kan. City S. Ry. Co., 635 F.3d 796, 813 (5th Cir. 2011).
III. The Non-Diverse Defendants Are Improperly Joined
The question to be answered is whether there is arguably a
reasonable basis for predicting that Louisiana law might impose
liability on PMC or Mamola.
Louisiana law makes workers' compensation the exclusive
remedy for unintended injury to an employee. See La. R.S.
23:1032. If the employer or any of its officers or employees
acted intentionally in causing injury, however, the injured
employee may pursue any remedy against the employer available
under general law. 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 defined
"intentional" in this context to mean that the employer either
consciously desired the physical result of its act or knew that
the result was "substantially certain" to follow. Bazley, 397 So.
2d at 481. "Substantially certain" means "incapable of failing"
or "inevitable." See Reeves, 731 So. 2d at 213.
Knowledge that a machine is dangerous and that its use
creates a high probability that someone eventually will be
injured is not sufficient to satisfy the "substantial certainty"
requirement. Id. Thus, the allegations that PMC and Mamola knew
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that the hydraulic press was dangerous and should be outfitted
with a guard are insufficient to establish that they knew
Sistrunk would be injured.13 "[B]elieving 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,
but instead falls within the range of negligent acts that are
covered by workers' compensation." Id. at 212. 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).
Sistrunk's alleged injury took place in the course of his
employment with PMC.14 His exclusive remedy against PMC and
Mamola is workers' compensation, unless either PMC or Mamola
acted intentionally in causing his injuries. The plaintiffs
allege that PMC and Mamola knew that the hydraulic press should
be outfitted with a guard to prevent projectiles from reaching
the operator and knew that, without a guard, Sistrunk was exposed
to "certain injury from projectiles."15 In their memorandum in
support of their motion to remand, the plaintiffs allege that
Mamola "knew or should have known that his failure to [ensure
13
See R. Doc. 1-1 at 4.
14
R. Doc. 1-1 at 7.
15
Id. at 4.
7
Sistrunk's safety] was substantially certain to cause injury to
[Sistrunk] while operating the Dake hydraulic press."16 In
essence, the plaintiffs allege that PMC and Mamola failed to
provide Sistrunk with necessary safety equipment. As stated, this
is insufficient to establish that PMC or Mamola acted
intentionally in causing Sistrunk's injury. See Moreau v.
Moreau's Material Yard, LLC, 98 So. 3d 297, 298 (La. 2012) (per
curiam); Reeves, 731 So. 2d at 211-12.
The Court finds no factual basis to support an inference
that either PMC or Mamola knew that Sistrunk would be injured.
Taken as true, the plaintiffs' factual allegations indicate that
Sistrunk's injuries resulted from a design or construction
deficiency (as the hydraulic press lacked a safety guard) and an
equipment malfunction.17 It does not follow from these facts that
PMC or Mamola intended Sistrunk's injuries or knew with
substantial certainty that he would be injured. The plaintiffs'
allegations to the contrary "are insufficient as a matter of law,
as they are nothing more than conclusionary allegations, wholly
lacking in specific factual support." Jernigan, 989 F.2d at 817.
The Court finds that the plaintiffs' exclusive remedy
against PMC and Mamola is workers' compensation. Accordingly, the
plaintiffs improperly joined PMC and Mamola, and the removing
16
R. Doc. 14-1 at 2.
17
R. Doc. 1-1 at 7-8.
8
defendants properly removed the action on grounds of diversity
jurisdiction. Further, PMC and Mamola are entitled to dismissal
under Federal Rule of Civil Procedure 21. See Fed. R. Civ. P. 21
("the court may at any time, on just terms, add or drop a
party").
IV.
Conclusion
For the foregoing reasons, the plaintiffs' motion to remand
is DENIED. Pursuant to Federal Rule of Civil Procedure 21, the
claims against Pellerin Milnor Corporation and Frank Mamola are
DISMISSED.
12th
New Orleans, Louisiana, this ______ day of December, 2013.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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