Irizarry v. Kiara S. Lawson, et al.

Filing 38

ORDER AND REASONS REMANDING CASE TO STATE COURT. Signed by Judge Martin L.C. Feldman on 10/18/2017. (Attachments: # 1 Remand Letter)(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELENA IRIZARRY

CIVIL ACTION

v.

NO. 17-0958

KIARA S. LAWSON, ET AL.

SECTION "F"
ORDER AND REASONS

Before the Court are the parties’ memoranda regarding subject
matter jurisdiction. For the reasons that follow, the case is
REMANDED for lack of subject matter jurisdiction.
Background
This personal injury case arises out of a seven-car motor
vehicle accident.
On February 22, 2015, Bennie Selvage was driving a Nissan
Altima in which Elena Irizarry was a passenger along Interstate
12, near the intersection of Interstate 55 in Tangipahoa Parish,
Louisiana. Near this intersection, Kiara S. Lawson entered the
highway, lost control of the vehicle, crossed over two lanes of
traffic, and crashed into the traffic median barrier. Several
vehicles avoided a collision, but Bradley Shultz’s vehicle rearended the Selvage Nissan, causing the Nissan to collide with Ms.
Lawson’s vehicle against the median. Ms. Irizarry was pregnant at

1

the time of the accident. Among the severe physical injuries Ms.
Irizarry sustained, she lost one of her unborn twins.
In February, 2016, Ms. Irizarry (a Louisiana resident) filed
suit

in

the

21st

Judicial

District

Court

for

the

Parish

of

Tangipahoa, Louisiana, against Mr. Selvage (a Louisiana resident)
and his auto insurance provider, Safeway Insurance Company of
Louisiana (Safeway)(a Louisiana company); Ms. Lawson (a resident
of Virginia) and her insurance provider, Northern Neck Insurance
Company

(a

Virginia

corporation);

Mr.

Shultz

(a

resident

of

Kentucky) and his auto insurance provider, Allstate Insurance
Company (an Illinois corporation); Nissan North America, Inc.
(incorporated in California and doing business in Tennessee); and
Ms. Irizarry’s uninsured motorist carrier, Safeway (a Louisiana
company). 1

Ms. Irizarry alleges that all drivers’ negligence, as

well as Nissan’s defective airbag, caused her physical and mental
injuries.

1

The original complaint listed “Safeway Insurance Company,” an
Illinois corporation, as a defendant, not “Safeway Insurance
Company of Louisiana.” However, later filings clarified that the
proper party was Safeway Insurance Company of Louisiana, who was
timely served. Moreover, for purposes of determining citizenship
for jurisdiction, an insurance carrier takes the citizenship of
its insured. 28 U.S.C. §1332(c)(1)(A). Here, it is alleged that
Safeway is a Louisiana company, and even if not, Safeway took Mr.
Selvage’s Louisiana citizenship.
2

On February 2, 2017, Nissan timely removed the lawsuit to
this Court, invoking the Court’s diversity jurisdiction and urging
the Court to disregard the local citizenship of Mr. Selvage and
his insurer on the basis of improper joinder. All defendants
consented, except for the local defendants, Mr. Selvage and his
insurer, Safeway. 2 Ms. Irizarry never moved to remand. Nor has any
party ever contested the Court’s removal jurisdiction. On March
10, 2017, a scheduling order issued, setting the final pretrial
conference for November 16, 2017, and a jury trial for December 4,
2017. Notably, based on representations of counsel, the order
states, “Jurisdiction and venue are established.” On September 14,
2017, the defendants, including Mr. Selvage and Safeway, filed
their witness and exhibit lists.
On August 31, 2017, defendants Bennie Selvage and Safeway
filed a motion to dismiss for lack of subject matter jurisdiction.
Yet the motion did not address whether the defendants were properly
joined. In fact, the motion altogether ignored the doctrine of
fraudulent joinder, contending that the Court must dismiss nondiverse defendants without prejudice regardless of whether they
were improperly joined. On September 27, 2017, the Court denied

2

In its capacity as Ms. Irizarry’s uninsured motorist carrier,
Safeway was dismissed on February 2, 2017. However, Safeway
remained a defendant as Mr. Selvage’s auto insurance carrier.
3

the

motion

and

ordered

all

parties

to

brief

subject

matter

jurisdiction.
With the exception of Nissan in its Notice of Removal, no
defendant has endeavored to carry its burden to satisfy the Court
that

it

has

subject

matter

jurisdiction

over

this

lawsuit. 3

Fortunately, the Court may raise the issue of its subject matter
jurisdiction sua sponte. Union Planters Bank Nat’l Ass’n v. Salih,
369 F.3d 457, 460 (5th Cir. 2004); see also Davis v. Cassidy, Civil
Action No. 11-1563, 2011 WL 6180054, at *1 (E.D. La. Dec. 13, 2011)
(“Though the Court must remand to state court if at any time before
final

judgment

it

appears

that

it

lacks

subject

matter

jurisdiction, the Court’s jurisdiction is fixed as of the time of
removal.” (citing 28 U.S.C. § 1447(c); Doddy v. Oxy USA, Inc., 101
F.3d 448, 456 (5th Cir. 1996))). In response to the Court’s order
that all parties brief this Court’s subject matter jurisdiction,
the plaintiff now contends that this Court lacks subject matter
jurisdiction because Mr. Selvage is an indispensable party under
Federal Rule of Civil Procedure 19. All remaining defendants now
urge the Court to disregard Mr. Selvage’s and Safeway’s local

3

Meanwhile, Nissan was dismissed from the suit on September 1,
2017.
4

citizenship on the ground that Mr. Selvage was fraudulently joined
to defeat diversity jurisdiction.
I.
A.
The removing defendant carries the burden of showing the
propriety of this Court's removal jurisdiction.

See Manguno v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002); see also Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815
(5th Cir. 1993). Remand is proper if at any time the Court lacks
subject matter jurisdiction.

28 U.S.C. § 1447(c).

Given the

significant federalism concerns implicated by removal, the removal
statute is strictly construed “and any doubt about the propriety
of removal must be resolved in favor of remand.”

Gutierrez v.

Flores, 543 F.3d 248, 251 (5th Cir. 2008)(citation omitted); Gasch
v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir.
2007)(citations omitted).
B.
Federal courts are courts of limited jurisdiction, possessing
only the authority granted by the United States Constitution and
conferred by the United States Congress. Howery v. Allstate Ins.
Co., 243 F.3d 912, 916 (5th Cir. 2001).

A defendant may generally

remove a civil action filed in state court if the federal court
5

has original jurisdiction over the case—that is, if the plaintiff
could have brought the action in federal court from the outset.
See 28 U.S.C. § 1441(a).

Suits not brought under federal law “may

not be removed if any of the parties in interest properly joined
and served as defendants is a citizen of the State in which such
action is brought.” 28 U.S.C. § 1441(b)(2); Int’l Energy Ventures
Mgmt., LLC v. United Energy Grp., Ltd., 818 F.3d 193, 199 (5th
Cir. 2016)(“when a properly joined defendant is a resident of the
same state as the plaintiff, removal is improper.”).

For a

defendant to invoke the Court's removal jurisdiction based on
diversity, "the diverse defendant must demonstrate that all of the
prerequisites of diversity jurisdiction contained in 28 U.S.C. §
1332 are satisfied," including that the citizenship of every
plaintiff is diverse from the citizenship of every defendant, and
the amount in controversy exceeds $75,000.

See 28 U.S.C. § 1332;

Smallwood v. Ill. Cent. R.R. Co., Inc., 385 F.3d 568, 572 (5th
Cir. 2004)(en banc).
C.
“The fraudulent joinder doctrine is a narrow exception to the
rule that diversity jurisdiction requires complete diversity.”
Smallwood v. Ill. Cent. R.R. Co., 352 F.3d 220, 222 (5th Cir.
2003). “The party seeking removal bears a heavy burden of proving
that the joinder of the in-state party was improper.” Smallwood,
6

385 F.3d at 574.

“Since the purpose of the improper joinder

inquiry is to determine whether or not the in-state defendant was
properly joined, the focus of the inquiry must be on the joinder,
not the merits of the plaintiff’s case.”

Id. at 573.

The removing

defendant may show improper joinder in one of two 4 ways:

“(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.” Id.
In determining whether a party was improperly joined, all
contested factual issues and state law ambiguities are resolved in
favor of the plaintiff.

Gasch, 491 F.3d at 281.

“A defendant is

improperly joined if the moving party establishes that (1) the
plaintiff has stated a claim against a diverse defendant that he
fraudulently alleges is nondiverse, or (2) the plaintiff has not
stated a claim against a defendant that he properly alleges is
nondiverse.”

4

Int’l Energy Ventures Mgmt., LLC, 818 F.3d at 199

Although not raised by the parties or formally adopted by the
Fifth Circuit, other Sections of this Court recognize a third
ground of fraudulent joinder called “fraudulent misjoinder” or
“Tapscott severance.” In re: Xarelto (Rivaroxaban) Products
Liability Litigation, No. 16-1066, 2016 WL 4409555, at *4 (E.D.
La. Aug. 19, 2016) (citing Tapscott v. MS Dealer Serv. Corp., 77
F.3d 1353 (11th Cir. 1996)). Fraudulent misjoinder would likely
fail here because a determination of liability involves
overlapping legal and factual issues common to all defendants.
Bienemy v. Continental Cas. Co., No. 09-6647, 2010 WL 375213, at
*4-6 (E.D. La. Jan. 26, 2010).
7

(emphasis in original).

Because Mr. Selvage and Safeway are

nondiverse,

subject

to

establish

matter

jurisdiction

in

this

Court, the defendants have the burden of establishing that Ms.
Irizarry has failed to state a claim against Mr. Selvage and
Safeway.

See id. at 207-08 (“because Smallwood requires us to use

the Rule 12(b)(6)-type analysis, we have no choice but to apply
the federal pleading standard embodied in that analysis.”).

In

doing

no

so,

the

defendants

must

demonstrate

“that

there

is

possibility of recovery by the plaintiff against an in-state
defendant,

which

stated

reasonable

basis

for

differently

the

district

means

court

to

that

there

predict

is

that

no
the

plaintiff might be able to recover against an in-state defendant."
Id. at 199-200 (citing Smallwood, 385 F.3d at 573).

The Court

underscores that the possibility of recovery must be “reasonable,”
not merely theoretical.

Smallwood, 385 F.3d at 573;

Great Plains

Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312
(5th Cir. 2002)("If there is arguably a reasonable basis for
predicting that the state law might impose liability on the facts
involved,

then

there

is

no

fraudulent

quotation marks omitted).

8

joinder.")(internal

II.
Ms. Irizarry contends that her lawsuit should be remanded to
state court because Mr. Selvage, and so Safeway, are indispensable
parties under Federal Rule of Civil Procedure 19. There is no
dispute

that

citizenship.

Ms.

Irizarry

and

Mr.

Selvage

share

Louisiana

Suggesting that Mr. Selvage was improperly joined to

defeat diversity jurisdiction, the defendants counter that the
Court should disregard Mr. Selvage’s citizenship and refuse to
remand. 5 All parties’ submissions miss the mark.
Although

Ms.

Irizarry

insists

that

Mr.

Selvage

is

an

indispensable party, this argument lacks merit. In addition to the
other

drivers’

and

Nissan’s

alleged

negligence,

Ms.

Irizarry

alleges that Mr. Selvage caused or contributed to her injuries
through negligent driving. As a potential joint tortfeasor who may
share

liability

with

the

other

defendants,

Mr.

Selvage

is

a

permissive—not indispensable—party. See Temple v. Synthes Corp.,
Ltd., 498 U.S. 5, 7 (1990) (“[A] tortfeasor with the usual ‘joint-

5

Mr. Selvage and Safeway do not contest removal and agree to being
improperly joined, yet also contend that they should be dismissed
without prejudice for merely being non-diverse parties, regardless
of whether they are properly joined. This argument misconstrues
the law. If joinder is proper, this Court should remand, which has
the effect of a dismissal without prejudice. See Int’l Energy
Ventures Mgmt., LLC v. United Energy Grp., Ltd., 818 F.3d 193,
199, 209 (5th Cir. 2016).
9

and-several’ liability is merely a permissive party to an action
against another with like liability. There is nothing in Louisiana
tort law to the contrary.” (internal quotations and citations
omitted)). Nevertheless, a party need not be indispensable to be
properly joined. The question under improper joinder is not whether
the plaintiff must have joined the allegedly fraudulently joined
party, but rather whether the plaintiff may have properly joined
said party. See Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d
529, 533 (5th Cir. 2006) (citing Federal Rule of Civil Procedure
20 to define proper joinder).
The diverse defendants submit that the state court petition
fails to allege any facts connecting Mr. Selvage to Ms. Irizarry’s
injuries such that there is no reasonable basis for this Court to
consider that Ms. Irizarry might be able to recover against Mr.
Selvage and Safeway.
Safeway

are

The defendants submit that Mr. Selvage and

improperly

joined

under

Smallwood

because

Ms.

Irizarry’s abandoned her claims against Mr. Selvage through her
deposition testimony, in which she stated that she believed Mr.
Selvage was not at fault.

The Court disagrees.

Given that the parties’ arguments fail to assist the Court in
determining

its

subject

matter

jurisdiction,

the

Court

now

addresses the relevant considerations of improper joinder. To
determine whether Mr. Selvage and Safeway were improperly joined,
10

the Court must determine whether Ms. Irizarry has pleaded “enough
facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 6 Ms. Irizarry
particularly alleges that Mr. Selvage caused or contributed to her
injures by failing to keep a lookout, failing to maintain control
of the vehicle, and generally failing to maintain the standard of
care in the driving conditions. Challenging the sufficiency of
such

allegations,

the

defendants

submit

that

Ms.

Irizarry’s

deposition testimony precludes her ability to bring a claim against
Mr. Selvage and Safeway. In her deposition, Ms. Irizarry states
that she does not believe Mr. Selvage did anything wrong or was at

6

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of the claim
showing that the pleader is entitled to relief."
Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009)(citing Fed. R. Civ. P. 8).
"[T]he pleading standard Rule 8 announces does not require
'detailed factual allegations,' but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at
678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In considering a Rule 12(b)(6) motion, the Court “accept[s]
all well-pleaded facts as true and view[s] all facts in the light
most favorable to the plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe ex rel. Magee
v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th
Cir. 2012)(en banc)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. This is a “contextspecific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679.
11

fault, and that she is “not trying to get any money out of him.”
On the basis of these statements alone, defendants contend that
Ms. Irizarry abandoned her claim against Mr. Selvage and Safeway.
On the contrary, the 12(b)(6) analysis looks to the basis in
fact for plaintiff’s claims—not to the plaintiff’s subjective
belief regarding a claim. See Campbell v. Stone Ins. Inc., 509
F.3d 665, 669, 672-73 (5th Cir. 2007) (holding improper joinder on
the

basis

of

peremption),

Bourque

v.

Nan

Ya

Plastics

Corp.,

America, 906 F. Supp. 348, 355 (M.D. La. Nov. 28, 1995) (holding
improper joinder for failure to establish a breach of duty owed to
plaintiff); cf. Williams v. Taylor, Civil Action No. 15-321, 2015
WL 2041172, at *3-4 (E.D. La. Apr. 30, 2015) (finding, with scant
analysis, improper joinder when plaintiff admitted in a deposition
that she was not aware of any way that defendant could have avoided
the accident), amended in part by, 2015 WL 4755162 (Filed Aug. 11,
2015) (amending dismissal with prejudice to dismissal without
prejudice). While Ms. Irizarry’s testimony may be damaging to her
case, 7 the facts of the accident, which, notably, no defendant
contests,

7

control

Mr.

Selvage’s

and

Safeway’s

liability.

Ms.

Although Nissan additionally emphasized that Mr. Selvage’s
relationship as Ms. Irizarry’s fiancé suggested improper joinder,
no remaining defendant advances the argument. This Court does not
find that their relationship compels a finding of improper joinder,
particularly in light of plaintiff’s claims against Mr. Selvage’s
insurer.
12

Irizarry timely alleged and continues to pursue her case alleging
that Mr. Selvage’s negligent driving (along with others’ negligent
driving) contributed to her injuries. Resolving all unchallenged
allegations in favor of the plaintiff, Mr. Selvage was driving in
a negligent manner that resulted, at minimum, in his comparative
fault for Ms. Irizarry’s injuries. See La. Civ. Code arts. 2315,
2323. This Court cannot conclude that there is no reasonable basis
for Ms. Irizarry’s claim.
The Court expresses no opinion on the merits of Ms. Irizarry’s
claim against Mr. Selvage or Safeway (or any of the defendants),
but merely finds that no defendant has carried its heavy burden in
showing that Ms. Irizarry has no reasonable possibility of recovery
against Mr. Selvage or Safeway.

Accordingly, mindful that doubts

about the propriety of removal must be resolved in favor of remand,
because this Court lacks subject matter jurisdiction, IT IS ORDERED
that the case is hereby REMANDED to the 21st Judicial District
Court for the Parish of Tangipahoa.
New Orleans, Louisiana, October 18, 2017

________________________
MARTIN L.C. FELDMAN
U.S. DISTRICT JUDGE

13