Hickman v. Exxon Mobil Corporation et al
ORDER & REASONS that the Plaintiffs' 19 Motion to Remand to State Court is GRANTED and this action is REMANDED to the 32nd JDC, Terrebonne Parish. Signed by Judge Eldon E. Fallon on 4/3/14. (Attachments: # 1 Remand Letter) (dno)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RILEY HICKMAN, ET AL.
EXXON MOBIL CORPORATION, ET AL.
SECTION "L" (5)
ORDER & REASONS
Before the Court is a motion to remand by Plaintiffs Deborah, Belinda, Daniella, and
Samantha Hickman, all on behalf of deceased Plaintiff Riley Hickman (Rec. Doc. 19). The
Court, having considered the memoranda and the applicable law, and having heard oral
argument, now issues this order.
This action was initially filed in the 32nd Judicial District Court for the Parish of
Terrebonne and the Defendants removed to this Court. Soon after, the Hickmans filed a motion
to remand on the basis that several nondiverse parties, including Defendant Sunset Petroleum
Company, prevented this Court from exercising diversity jurisdiction. After finding that Sunset
had not been fraudulently joined, this Court granted the motion and remanded the case.
On November 22, 2014, the 32nd Judicial District Court dismissed Sunset, with
prejudice, and a judgment was entered on December 5, 2013. On January 3, 2014, the Hickmans
filed a writ application with the Louisiana Court of Appeal for the First Circuit. On January 6,
2014, the Defendants removed once more. On March 24, 2014, the Louisiana First Circuit
granted the writ and ordered that an appeal be filed prior to April 23, 2014.
The Hickmans now move to remand this action (Rec. Doc. 19), contending that removal
was premature and prohibited by the voluntary-involuntary rule. The Defendants, in turn, argue
that the removal is not premature and that an exception to the voluntary-involuntary rule applies
in this instance.
LAW & ANALYSIS
The federal removal statute, 28 U.S.C. § 1441(a), allows for the removal of "any civil
action brought in a State court of which the district courts of the United States have original
jurisdiction." Id. § 1441(a). "If jurisdiction is based on diversity of citizenship, however, the
action is removable only if there is complete diversity and 'none of the parties in interest properly
joined and served as defendants is a citizen of the State in which such action is brought.'"
Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 531–32 (5th Cir. 2006) (quoting 28 U.S.C.
§ 1441(b)). If, as here, an action was not initially removable but later becomes removable, "a
notice of removal may be filed within 30 days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become removable." 28 U.S.C.
§ 1446(b)(3). The removing party bears the burden of establishing that federal jurisdiction exists
at the time of removal. DeAguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Further,
any ambiguities are construed against removal and in favor of remand, because removal statutes
are to be strictly construed. Manguno v. Prudential Prop. & Cas. Ins., 276 F.3d 720, 723 (5th
However, the judicially-created voluntary-involuntary rule dictates that "'an action
nonremovable when commenced may become removable thereafter only by the voluntary act of
the plaintiff.'" Crockett, 436 F.3d at 532 (quoting Weems v. Louis Dreyfus Corp., 380 F.2d 545,
547 (5th Cir. 1967)). The rule "prevents removal of those cases in which the issue of the
[nondiverse] defendant's dismissal has not been finally determined in the state courts," and thus
"avoids the duplication and expense which would result if a [nondiverse] defendant was
dismissed on an appealable ground, . . . was permitted to remove, and the plaintiff then obtained
a reversal of the dismissal in the state appellate courts." Weems, 380 F.2d at 546 (emphasis
added). Generally, a dismissal "is not final [if] it is appealable in the state courts." Id. at 458.
Here, it is necessary to determine whether Sunset's dismissal was voluntary. On
November 22, 2014, the 32nd Judicial District Court dismissed Sunset, with prejudice, and a
judgment was entered on December 5, 2013. On January 3, 2014, the Hickmans filed a writ
application with the Louisiana First Circuit. On March 24, 2014, that court granted the writ "for
the limited purpose of remanding the case to the trial court with instructions to grant plaintiff an
appeal" and requiring that such an appeal be made by April 23, 2014. Hickman v. Exxon Mobil
Corp., No. 2014-CW-0007, at 1 (La. Ct. App. 1st Mar. 24, 2014). Sunset's dismissal did not
occur by any voluntary act of the Hickmans and has not become final. Thus, removal of this
action is barred by the voluntary-involuntary rule.
However, it is also necessary to consider the exception to the voluntary-involuntary rule
"where a claim against a nondiverse or in-state defendant is dismissed on account of fraudulent
[or improper] joinder."1 Id. With regard to fraudulent joinder, a nondiverse defendant is
considered to have been fraudulently joined if the plaintiff would be unable "to establish a cause
The exception to the voluntary-involuntary rule has been expanded to include both fraudulent and
improper joinder. The Fifth Circuit explains:
The fraudulent joinder exception to the voluntary-involuntary rule is designed to prevent plaintiffs
from blocking removal by joining nondiverse and/or in-state defendants who should not be parties. That
salutary purpose is also served by recognizing an exception to the voluntary-involuntary rule where
defendants are improperly, though not fraudulently, joined. . . .
Crockett, 436 F.3d at 533.
of action against [it] in state court."2 Id. This Court has previously held that the "Defendants
have . . . failed to carry their heavy burden in attempting to show that the Plaintiff fraudulently
joined Sunset Petroleum, Inc." Hickman v. Exxon Mobil Corp., No. 13–0351, 2013 WL 2435005,
at *2 (E.D. La. June 4, 2013). The law-of-the-case doctrine strongly suggests that the resolution
of a previously decided issue "should continue to govern the same issue in subsequent stages in
the same case." Med. Ctr. Pharmacy v. Holder, 634 F.3d 830, 834 (5th Cir. 2011) (internal
quotation marks omitted). Because the issue of whether Sunset was fraudulently joined has
already been decided by this Court, it is not necessary to decide it again now.
With regard to improper joinder, a nondiverse defendant is considered to have been
improperly joined if "'a right to relief in respect of or arising out of the same transaction,
occurrence, or series of transactions or occurrences'" has not been "'asserted against them jointly,
severally, or in the alternative'" and there is not "'any question of law or fact common to all
defendants [that] will arise in the action.'" Id. at 533 (quoting FED. R. CIV. P. 20(a)). Here, there
is nothing to suggest that Sunset was improperly joined. Instead, it appears to have been
dismissed on exceptions of insufficiency of citation and service of process. (Rec. Doc. 1-36 at
38). This reason for dismissal is more closely related to whether a plaintiff has established a
cause of action against a defendant in state court, which is addressed under the fraudulent joinder
inquiry. As noted above, this Court has previously found that the Hickmans were able to
establish a cause of action against the Defendants in state court. Although the state court's
reached a different conclusion, that alone is not dispositive—especially given the pending
appeal. Thus, because Sunset was neither fraudulently nor improperly joined, the exception to
the voluntary-involuntary rule does not apply and the matter must be remanded.
Although not applicable here, fraudulent or improper joinder is also established if there was actual fraud
in the pleading of jurisdictional facts. Crockett, 436 F.3d at 532
For these reasons, IT IS ORDERED that the Hickmans' motion to remand (Rec. Doc.
19) is GRANTED and the action is REMANDED.
New Orleans, Louisiana, this 3rd day of April, 2014.
UNITED STATES DISTRICT JUDGE
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