Dorsey v. Hertz Corporation et al

Filing 31

ORDER and REASONS granting 6 Motion to Remand to State Court, as stated within document. Signed by Chief Judge Kurt D. Engelhardt on 11/7/2016. (cbs) (Additional attachment(s) added on 11/7/2016: # 1 Remand Letter) (cbs).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

BARBARA DORSEY

CIVIL ACTION

VERSUS

NO. 16-3680

THE HERTZ CORPORATION, ET AL

SECTION “N” (4)

ORDER AND REASONS
Presently before the Court is Plaintiff’s, Barbara Dorsey (“Dorsey”), “Motion to Remand”
(Rec. Doc. 6). Defendants Blue Bell Creameries, L.P. (“Blue Bell”), Jonathan Solvason
(“Solvason”), and Travelers Commercial Casualty Company (“Travelers”) filed a “Memorandum
in Opposition to Motion to Remand,” (Rec. Doc. 11) and Defendants Carla Cohodes (“Cohodes)
and the Hertz Corporation (“Hertz”) separately opposed the motion. (Rec. Doc. 13). Plaintiff has
also filed a “Reply to Response to Motion to Remand,” (Rec. Doc. 21) as well as a “Plaintiff’s
Supplemental Motion to Remand and Memorandum” (Rec. Doc. 28). Finally, Defendants Blue
Bell, Solvason, and Travelers have filed a “Motion for Summary Judgment” (Rec. Doc. 10),
which is opposed (Rec. Doc. 14).
Having carefully considered the parties’ supporting and opposing submissions and applicable
law, IT IS ORDERED that the “Motion for Remand” is hereby GRANTED, and the matter is
hereby REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.
I.

BACKGROUND

The instant case arises out of an automobile accident that took place on May 4, 2015. Dorsey
filed a petition for damages in the Civil District Court for the Parish of Orleans, State of

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Louisiana, naming Blue Bell, Solvason, Travelers, Cohodes, and Hertz as defendants. 1 (Rec.
Doc. 1-1). Dorsey alleges that while traveling eastbound on Interstate 10 in Orleans Parish, she
was hit in the rear of her vehicle as she stopped for traffic in the center lane. Id. Specifically, she
alleges that “Carla Cohodes violently, suddenly and without warning crashed into the rear of
Jonathan Solvason’s vehicle pushing Solvason’s vehicle into the rear of [her] vehicle.” Id.
Alternatively, she alleges that “Jonathan Solvason violently, suddenly and without warning
crashed into the rear of [her] vehicle and thereafter Carla Cohodes crashed into the rear of the
[sic] Solvason’s vehicle causing the Solvason vehicle to crash back into the rear of [her] vehicle
for the second time.” Id.
Defendants thereafter filed a notice of removal in this Court on April 25, 2016, alleging that
this Court has jurisdiction pursuant to 28 U.S.C. § 1332. (Rec. Doc. 1). Specifically, Defendants
argue that the amount in controversy exceeds $75,000.00, and Defendants Blue Bell, Solvason,
and Travelers were fraudulently joined. Id. Therefore, the citizenship of those defendants should
be disregarded for purposes of diversity. Id. Specifically, Defendants argue that Dorsey cannot
maintain a cause of action against Blue Bell, Solvason, or Travelers because they cannot be
found liable for the accident under any circumstances. See Rec. Doc. 11.
In response to Defendants’ notice of removal, Dorsey filed a motion to remand. (Rec. Doc.
6). Dorsey argues that there is a reasonable basis of recovery against Blue Bell, Solvason, and

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In Dorsey’s petition for damages, she names Solvason as a defendant, as he was operating the middle vehicle at the
time of the accident. In addition, she names Blue Bell, alleging that Solvason was within the course and scope of his
employment with Blue Bell at the time of the accident. Dorsey also names Travelers as a defendant, as Travelers
“had issued in full force and in effect, a policy of automobile liability insurance in favor of Defendants, Jonathan
Solvason and Blue Bell Creameries Inc., which provided coverage for the negligence acts mentioned herein.” (Rec.
Doc. 1-1). Dorsey’s petition also names Cohodes as a defendant, as she was operating the vehicle behind Solvason’s
vehicle at the time of the accident. Finally, Dorsey names Hertz as a defendant, alleging that Hertz owned the
vehicle operated by Cohodes and “had issued in full force and in effect a policy of automobile liability insurance
(believed to be a self-insured policy) in favor of Defendant, Carla Cohodes, which provided coverage for the
negligent acts mentioned herein.” (Rec. Doc. 1-1).

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Travelers, and at the time the motion was filed, there had been “no discovery conducted to
clearly establish the exact facts of what took place in the collision.” (Rec. Doc. 6-2). Thereafter,
Blue Bell, Solvason, and Travelers filed an opposition to the motion (Rec. Doc. 11), while Hertz
and Cohodes separately opposed the motion (Rec. Doc. 13). Again, both oppositions allege that
Blue Bell, Solvason, and Travelers were fraudulently joined, and Dorsey has no possibility of
recovery against these defendants.
In addition to their opposition, Blue Bell, Solvason, and Travelers filed a motion for
summary judgment. (Rec. Doc. 10-4). In this motion, Defendants largely assert the same
arguments with regards to Dorsey’s inability to maintain a cause of action against them. They
argue that Hertz and Cohodes admit that they are at fault for the accident, as the Cohodes vehicle
caused the Solvason vehicle to hit Dorsey. Id. Additionally, they assert that “Louisiana case law
very clearly shields the diver of a ‘middle’ vehicle who was able to come to a complete stop
before being pushed into the vehicle in front of it.” Id. Dorsey opposed the motion (Rec. Doc.
14), arguing that there is a question of fact as to how the accident occurred.
Lastly, Dorsey filed a reply to Defendants’ oppositions (Rec. Doc. 21), a first amended
complaint (Rec. Doc. 25), and a supplemental motion to remand (Rec. Doc. 28). In her first
amended complaint, Dorsey adds Amedisys Holding, L.L.C. (“Amedisys”), a limited liability
company authorized to do and doing business in Louisiana, as a party to this action. See Rec.
Doc. 25. Dorsey alleges that, at the time of the accident, “defendant, Carla Cohodes, was in the
course and scope of her employment with defendant, Amedisys Holding, L.L.C., a domestic
limited liability company with its domicile address located in Baton Rouge, Louisiana, and,
therefore, Amedisys Holding, L.L.C., is vicariously liable unto petitioner under the doctrine of
respondeat superior.” Id.

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In the supplemental motion to remand, Dorsey explains that the addition of Amedisys as a
defendant makes remand necessary without having to consider the fault or domicile of Solvason.
(Rec. Doc. 28). Dorsey explains that after Cohodes’ deposition, it became “abundantly clear”
that the she was in the course and scope of her employment with Amedisys at the time of the
automobile accident. Id. Further, Dorsey argues that Cohodes’ deposition testimony also reveals
that there is a genuine question of fact as to whether Solvason hit Dorsey’s vehicle prior to or
after being hit by the Cohodes vehicle. Id. Therefore, Dorsey asserts that diversity between the
parties does not exist, and the action must be remanded to state court. Id.
II.

LAW AND ANALYSIS
Pursuant to 28 U.S.C. §1441(a), a civil action that was brought in a state court of which

the United States district courts have original jurisdiction may be removed by the defendant(s) to
the United States district court for the district and division embracing the location where such
action is pending. See 28 U.S.C. §1441(a). In order for a court to have original jurisdiction under
28 U.S.C. §1332, complete diversity must exist between the plaintiff(s) and all properly joined
defendants, and the amount in controversy must exceed $75,000.00. See 28 U.S.C. §1332.
Moreover, to remove a case on the basis of diversity jurisdiction, “the diverse defendant must
demonstrate that all of the prerequisites of diversity jurisdiction contained in 28 U.S.C. §1332
are satisfied.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir. 2004).
Consequently, “when a nondiverse party is properly joined as a defendant, no defendant may
remove the case under 28 U.S.C. § 1332." Pitman v. Crane Co., No. 13-83, 2013 WL 1403326
*1 (E.D. La. Apr. 5, 2013). Removal is available, however, if the removing defendant shows
that the nondiverse party was joined improperly. See, e.g., Smallwood v. Ill. Cent. R.R. Co., 352
F.3d 220, 222 (5th Cir. 2003). Although the Court must remand a removed action to state court
if, at any time before final judgment, it appears that subject matter jurisdiction is lacking, the
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Court's jurisdiction is fixed as of the time of removal. 28 U.S.C. § 1447(c); Doddy v. Oxy USA,
Inc., 101 F.3d 448, 456 (5th Cir.1996).
In establishing improper joinder, a party must prove either: “(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, 646–47 (5th Cir.2003). With
regards to the second way of establishing improper joinder, the court must evaluate “whether the
defendant has demonstrated that there is no possibility of recovery by the plaintiff against an instate defendant, which stated differently means that there is no reasonable basis for the district
court to predict that the plaintiff might be able to recover against an in-state defendant.”
Smallwood, 385 F.3d at 573.
The court may establish whether the plaintiff has a reasonable basis for recovery under state
law in one of two ways. First, the 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.” Id. Typically, if a plaintiff is able to withstand a
Rule 12(b)(6)-type challenge, there is no improper joinder. Id. Second, in cases in which the
plaintiff has stated a claim “but has misstated or omitted discrete facts that would determine the
propriety of joinder. . . the district court may, in its discretion, pierce the pleadings and conduct a
summary inquiry.” Id.
Moreover,
“The burden of persuasion on those who claim [improper] joinder is a heavy one.”
Travis v. Irby, 326 F.3d 644, 649 (5th Cir.2003). Accordingly, we view “all
unchallenged factual allegations, including those alleged in the complaint, in the
light most favorable to the plaintiff” and resolve “[a]ny contested issues of fact and
any ambiguities of state law” in the plaintiff's favor. Id. Moreover, we must “take
into account the ‘status of discovery’ and consider what opportunity the plaintiff
has had to develop its claims against the non[ ]diverse defendant.” McKee v. Kan.
City S. Ry. Co., 358 F.3d 329, 334 (5th Cir.2004) (quoting Travis, 326 F.3d at 649).
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Davidson v. Georgia-Pacific, L.L.C., 819 F.3d 758 (5th Cir. 2016). In the instant matter,
Defendants put forth an improper joinder claim because they assert that Solvason, as the driver
of the middle vehicle in a three-vehicle accident, is shielded from liability, and Dorsey has no
possible cause of action against him. (Rec. Doc. 11). Dorsey asserts, however, that she is able to
maintain a cause of action against Solvason and that she felt “two separate impacts from the
rear.” (Rec. Doc. 21).
In assessing whether Dorsey is able to maintain a cause of action against Solvason, the Court
must examine the relevant portions of Louisiana law on negligence and rear-end collisions. The
controlling state law is LSA-R.S. 32:81(A), which provides:

The driver of a motor vehicle shall not follow another motor vehicle more closely
than is reasonable and prudent, having due regard for the speed of such vehicle and
the traffic upon and the condition of the highway.
Under this statute, there is a presumption that the following driver in a rear-end collision is
negligent. Domingo v. State Farm Mut. Auto. Ins. Co., 10-264, p. 11-12 (La.App. 5 Cir. 11/9/10),
54 So.3d 74, 80. “To rebut this presumption and avoid liability, the following motorist has the
burden of proving that he was not negligent by showing that he had his vehicle under control,
closely observed the lead vehicle, and followed it at a safe distance under the circumstances.”
Wagley v. State Nat. Ins. Co., No. 13-98, 2013 WL 5460576, at *2 (M.D. La. Sept. 30, 2013). In
addition, the following driver can avoid liability by way of the “sudden emergency doctrine,” by
proving that “the driver of the lead vehicle negligently created a hazard that he could not
reasonably avoid.” Johnson v. Magitt, 12-0200, p. 3 (La. App. 1 Cir. 9/21/12), 111 So. 3d 11, 12
(citing Daigle v. Mumphrey, 96-1891, pp. 2–3 (La. App. 4 Cir. 3/12/97), 691 So. 2d 260, 262).
Furthermore, when “other vehicles are able to stop behind the lead car, the last car that

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precipitates the chain reaction collision is negligent.” Domingo, 54 So.3d at 81 (citing Staehle v.
Marino, 201 So.2d 212, 214 (La.App. 4 Cir.1967)).
With regards to Dorsey’s claims against Solvason, the Court is not persuaded that Dorsey has
no possibility of recovery against this defendant under the showing made. Dorsey was involved
in a three-vehicle accident, and Defendants have not met their burden in proving that Dorsey is
unable to recover or state a claim against Solvason, solely because of his position as the middle
vehicle. Such position does not shield him from liability under every set of circumstances.
While the Court finds that Dorsey has stated a claim upon which relief may be granted under
a 12(b)(6)-type analysis, a summary inquiry yields the same result. In support of their claim for
improper joinder, Defendants have pointed to a police report containing statements made by each
of the drivers, an affidavit from Solvason, and an admission of fault by Cohodes. Each of these
admissions state that Solvason’s vehicle was pushed into Dorsey’s vehicle. However, Dorsey has
also submitted an affidavit stating that she felt two impacts from the rear. In addition, Dorsey has
quoted deposition testimony of Cohodes that indicates uncertainty as to whether Solvason’s
vehicle made contact with Dorsey’s vehicle prior to or after Cohodes’ vehicle impacted
Solvason. (Rec. Doc. 28).
This evidence, taken as a whole, indicates that there is a question of fact as to how the
accident occurred. See Wagley, 2013 WL 5460576, at *3 (finding that the defendants presented
insufficient evidence to carry the burden of proving improper joinder given that the standard
requires the court to construe all disputed questions of fact and ambiguities in state law in the
plaintiff’s favor); but see Edwards v. Liberty Mut. Ins. Co., No. 15-19, 2015 WL 2358256, at *2
(M.D. La. May 15, 2015) (finding that the defendants satisfied their burden in establishing that
the plaintiffs had no reasonable possibility of recovery against a defendant when there was

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evidence that the defendant’s vehicle did not contact the plaintiff’s vehicle). In the instant
matter, Defendants have not met their burden of proving improper joinder, so the citizenship of
Solvason, Blue Bell, and Travelers must be considered in this Court’s assessment of subject
matter jurisdiction. 2 Therefore, given that Solvason and Dorsey are both citizens of Louisiana,
the parties lack complete diversity. Accordingly, this Court lacks jurisdiction, and the matter
must be remanded to state court. 3
III.

CONCLUSION

For the reasons stated herein,
IT IS ORDERED that the “Motion to Remand” (Rec. Doc. 6) is hereby GRANTED, and
the matter is hereby REMANDED to the Civil District Court for the Parish of Orleans, State of
Louisiana.
New Orleans, Louisiana, this 7th day of November 2016.

___________________________________
KURT D. ENGELHARDT
UNITED STATES DISTRICT JUDGE

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Given the Court’s ruling on the motion to remand, it is unnecessary for the Court to address the pending motion for
summary judgment.
3
In addition, while Dorsey argues that remand is necessary with the addition of Amedisys as a defendant, she
misstates the citizenship of Amedisys. Dorsey argues that Amedisys is a domestic company and submits proof of its
registration as a limited liability company. However, when assessing the citizenship of a limited liability company
for diversity purposes, the Court must assess the citizenship of all of the company’s members. See Harvey v. Grey
Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). Here, the proof of Amedisys’ domicile address, as listed on
the Louisiana Secretary of State’s website, is irrelevant in this Court’s analysis of diversity, and Dorsey submits no
proof upon which the Court could conduct a jurisdictional analysis. Therefore, remand is not appropriate based on
this argument.

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