Thomas et al v. Exxon Mobil Corporation et al

Filing 26

ORDER AND REASONS denying 11 Motion to Remand to State Court. Signed by Judge Jane Triche Milazzo. (ecm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TRAVIS THOMAS, ET AL

CIVIL ACTION

VERSUS

NO: 16-15750

EXXON MOBIL CORPORATION, ET AL.

SECTION: “H”(2)

ORDER AND REASONS
Before the Court is Plaintiff’s Motion to Remand (Doc. 11). For the
following reasons, this Motion is DENIED.
BACKGROUND
Plaintiff brings this action alleging that exposure to benzene and
benzene-containing products at the hands of various defendants caused him to
develop acute myeloid leukemia. Defendants Shell Oil Company and Exxon
Mobil Corporation removed the action to this Court on grounds of diversity
jurisdiction.

They argue that Jafri’s Faith, Inc., the only non-diverse

defendant, is fraudulently joined in an effort to defeat this Court’s diversity
jurisdiction. Plaintiff responds with the instant Motion to Remand.

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LEGAL STANDARD
Generally, a defendant may remove a civil state court action to federal
court if the federal court has original jurisdiction over the action.1 The burden
is on the removing party to show “[t]hat federal jurisdiction exists and that
removal was proper.”2 When determining whether federal jurisdiction exists,
courts consider “[t]he claims in the state court petition as they existed at the
time of removal.”3 “In making a jurisdictional assessment, a federal court is
not limited to the pleadings; it may look to any record evidence, and may
receive affidavits, deposition testimony or live testimony concerning the facts
underlying the citizenship of the parties.”4 Removal statutes should be strictly
construed, and any doubt should be resolved in favor of remand.5
LAW AND ANALYSIS
Defendants Shell Oil Company and Exxon Mobil Corporation contend
that Defendant Jafri’s Faith, Inc. is fraudulently joined to prevent removal.
“Fraudulent joinder can be established by demonstrating 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.’”6
Generally, the court conducts an analysis similar to that employed in the
context of Rule 12(b)(6), asking whether there is a legal basis for recovery
assuming the facts in the complaint as true.7 In certain circumstances,

28 U.S.C. § 1441(a).
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
3 Id.
4 Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996)
5 Id.
6 Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006).
7 Smallwood v. Ill. Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc).
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however, the court may pierce the pleadings and conduct a summary inquiry.
“[A] summary inquiry is appropriate only to identify the presence of discrete
and undisputed facts that would preclude plaintiff’s recovery against the instate defendant.”8 Examples of such facts include “the in-state doctor
defendant did not treat the plaintiff patient, the in-state pharmacist defendant
did not fill a prescription for the plaintiff patient, a party’s residence was not
as alleged, or any other fact that easily can be disproved if not true.”9 The court
evaluates all of the contested factual allegations in the light most favorable to
the plaintiff and resolves any uncertainties in the controlling state’s
substantive law in the plaintiff’s favor.10 The burden of showing fraudulent
joinder is a “heavy one.”11
There is no dispute that Defendant Jafri’s and Plaintiff share Louisiana
citizenship. Accordingly, removal on the basis of diversity is improper absent
a finding that Jafri’s is fraudulently joined. Defendants spend much of their
opposition to Plaintiff’s Motion to Remand arguing that Plaintiff cannot
properly assert a claim against Jafri’s under the Louisiana Products Liability
Act (“LPLA”).

Indeed, “[t]he LPLA ‘establishes the exclusive theories of

liability for manufacturers for damage caused by their products.’”12
Defendants’ reliance on the exclusivity provisions of the LPLA is misplaced,
however, as Plaintiff alleges that Jafri’s is the seller, not the manufacturer, of
the harmful product at issue. Claims involving sellers fall outside the scope of

Id.
Id. at n.12.
10 Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003).
11 Id. at 649.
12 Brown v. R.J. Reynolds Tobacco Co., 52 F.3d 524, 526 (5th Cir. 1995) (quoting La.
Rev. Stat. § 9:2800.52).
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the LPLA.13 “[A] non-manufacturing seller of a defective product can be held
liable outside of the provisions of the LPLA, ‘but only if he knew or should have
known that the product sold is defective.’”14
Nevertheless, upon review of the Petition, the Court finds that the
allegations contained therein are insufficient to state a negligence claim
against Jafri’s. A plaintiff must plead enough facts “to state a claim to relief
that is plausible on its face.”15 A claim is “plausible on its face” when the
pleaded facts allow the court to “[d]raw the reasonable inference that the
defendant is liable for the misconduct alleged.”16 A court must accept the
complaint’s factual allegations as true and must “draw all reasonable
inferences in the plaintiff’s favor.”17 The Court need not, however, accept as
true legal conclusions couched as factual allegations.18 Here, Plaintiff’s sole
factual allegation specific to Jafri’s is that it sold gasoline to Plaintiff. The
Petition contains no specific factual allegations relative to Jafri’s knowledge of
defects in the product at issue.

Plaintiff’s boilerplate statement that all

“defendants knew or should have known of the health hazards inherent in the
products” at issue is a legal conclusion and lacks sufficient specificity.
Accordingly, the Court finds that Jafri’s is fraudulently joined, as the Petition
does not provide a legal basis for recovery against it. The Motion to Remand
is therefore denied.

See Kelley v. Hanover Ins. Co., 722 So. 2d 1133, 1137 (La. App. 5 Cir. 1998), writ
denied, 738 So. 2d 576 (La. 1999).
14 Wornner v. Christian Home Health Care, Inc., No. 13-6416, 2014 WL 130331, at *4
(E.D. La. Jan. 14, 2014).
15 Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547 (2007)).
16 Id.
17 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
18 Iqbal, 556 U.S. at 667.
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CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to Remand is DENIED.
New Orleans, Louisiana this 25th day of January, 2017.

____________________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

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