Harris v. American Commercial Barge Line LLC et al

Filing 19

ORDER AND REASONS. It is ORDERED that Plaintiff's Motion to Remand is DENIED. It is FURTHER ORDERED that Plaintiff's claims against Leslie Aubert are DISMISSED. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRUCE HARRIS JR.

CIVIL ACTION

VERSUS

No. 18-268

ABC INSURANCE COMPANY, ET
AL.

SECTION: “J”(1)

ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 9) filed by Plaintiff, Bruce
Harris, Jr., and an opposition thereto (Rec. Doc. 10) filed by Defendant, American
Commercial Barge Line LLC. Having considered the motion and legal memoranda,
the record, and the applicable law, the Court finds that the motion should be
DENIED.
FACTS AND PROCEDURAL BACKGROUND
This litigation arises out of a slip and fall accident on a barge located on the
Mississippi River. Plaintiff alleges that on December 20, 2016, he slipped and fell on
some ice while cleaning the deck of a barge owned by American Commercial Barge
Line LLC (“ACBL”).

Plaintiff contends that his injuries were caused by the

negligence of ACBL and Leslie Aubert (“Aubert”), who Plaintiff alleges was the ACBL
supervisor on duty at the time of the accident. In particular, Plaintiff alleges that
ACBL and Aubert were “responsible for the set-up, upkeep, maintenance, and repair
of the barge,” and thus, “knew or should have known about the hazardous condition

on the vessel.” 1 Plaintiff further alleges that ACBL and Aubert “failed to properly
supervise and maintain the property free of defects and/or failed to properly warn
him about said defects causing the accident at issue.” 2 Accordingly, on December 14,
2017, Plaintiff filed suit in the 23rd Judicial District Court for the Parish of St. James,
naming ACBL, Aubert, and ACBL’s alleged fictitious insurer—ABC Insurance
Company—as defendants.
ACBL removed this action to this Court on the basis of diversity jurisdiction.
There is no dispute that Plaintiff and Aubert are both Louisiana citizens. 3 Although
complete diversity appears to be lacking, ACBL asserts that Plaintiff improperly
joined Aubert as a defendant in order to defeat diversity jurisdiction. Plaintiff,
however, maintains that Aubert was properly joined in this case and therefore this
Court lacks jurisdiction. Accordingly, Plaintiff filed the instant Motion to Remand
(Rec. Doc. 9), which ACBL opposes (Rec. Doc. 10). The motion is now before the
Court on the briefs and without oral argument.

(Rec. Doc. 1-2 at 3).
Id.
3 It is also undisputed that ACBL is a citizen of Delaware and Indiana. For the purposes of determining
diversity of citizenship, a limited liability company is deemed to be a citizen of the state(s) of its
member(s). Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). ACBL’s sole member
is Commercial Barge Line Company, a Delaware corporation, which has its principal place of business
in Indiana. See 28 U.S.C. § 1332(c)(1) (“[A] corporation shall be deemed to be a citizen of any State by
which it has been incorporated and of the State where it has its principal place of business.”). The
Court, however, need not consider the citizenship of ABC Insurance Company in determining whether
this matter was properly removed on the basis of diversity jurisdiction. 28 U.S.C. § 1441(a) (“In
determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a)
of this title, the citizenship of defendants sued under fictitious names shall be disregarded.”).
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LEGAL STANDARD
A defendant may remove “any civil action brought in a State court of which the
district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a)
(2011). “A federal district court has subject matter jurisdiction over a state claim
when the amount in controversy is met and there is complete diversity of citizenship
between the parties.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir.
2013) (citing 28 U.S.C. § 1332(a)). The amount in controversy required by § 1332(a)
is currently $75,000. Id. The court considers the jurisdictional facts that support
removal as of the time of removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883
(5th Cir. 2000). Because removal raises significant federalism concerns, any doubt
about the propriety of removal must be resolved in favor of remand. Gasch v. Hartford
Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).
Section 1441(b) specifies that an action otherwise removable solely on the basis
of diversity jurisdiction may not be removed if any “properly joined” defendant is a
citizen of the state in which the action was brought. 28 U.S.C. § 1441(b)(2). Thus, a
properly joined in-state 4 defendant will prevent removal, but an improperly joined instate defendant will not. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir.
2004).
The party seeking removal bears a heavy burden of proving that the joinder of
the in-state defendant was improper. Id. at 574. The Fifth Circuit has recognized two

The term “in-state” is used to describe a defendant who is a citizen of the state where the action was
brought, preventing removal under § 1441(b), as well as a defendant who would be nondiverse from a
plaintiff, destroying diversity jurisdiction under § 1332(a).
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ways to establish improper joinder: “(1) actual fraud in the pleading of jurisdictional
facts, or (2) inability of the plaintiff to establish a cause of action against the nondiverse party.” Id. at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)).
To establish improper joinder where there is no allegation of actual fraud the
defendant must demonstrate that there is no possibility of recovery by the plaintiff
against any in-state defendant, which stated differently means that there is no
reasonable basis to predict that the plaintiff might be able to recover against an instate defendant. Id. “A ‘mere theoretical possibility of recovery under local law’ will
not preclude a finding of improper joinder.” Id. at 573 n.9 (quoting Badon v. RJR
Nabisco Inc., 236 F.3d 282, 286 (5th Cir. 2000)).
A court should ordinarily resolve the issue by conducting 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 defendants. Id. at
573. The federal pleading standard governs whether a plaintiff has stated a claim
against a nondiverse defendant for purposes of the improper joinder analysis. Int'l
Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., No. 14-20552, 2016 WL
1274030, at *3 (5th Cir. Mar. 31, 2016). Where a plaintiff has stated a claim, but has
misstated or omitted discrete and undisputed facts that would preclude recovery, the
Court may, in its discretion, pierce the pleadings and conduct a summary inquiry.
Smallwood, 385 F.3d at 573. Because the purpose of the improper joinder inquiry is
to determine whether 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.

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DISCUSSION
The issue before the Court revolves entirely around the joinder of Aubert, who
ACBL alleges was improperly joined. To show improper joinder, ACBL argues that
no reasonable basis exists for Plaintiff to recover against Aubert under Louisiana law
or general maritime law. The Court, upon a summary judgment inquiry into the
record, concludes that ACBL is correct.
As the Fifth Circuit has recognized, “[t]he elements of a maritime negligence
cause of action are essentially the same as land-based negligence” under Louisiana
law. Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005). To establish
a claim of negligence under maritime law, a plaintiff must demonstrate that (1) there
was a duty owed by the defendant to the plaintiff; (2) the duty was breached; (3) the
plaintiff suffered injury; and (4) a causal connection between the defendant's conduct
and the plaintiff's injury. In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201,
211 (5th Cir. 2010) (citing Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th
Cir. 2000) (quotation omitted)). Similarly, in order to prevail on a negligence claim
under Louisiana law, a plaintiff must prove the same duty, breach, harm, and
causation elements. See Duncan v. Wal-Mart Louisiana, L.L.C., 863 F.3d 406, 409
(5th Cir. 2017).
In order to meet its burden of establishing improper joinder, ACBL cites to
Aubert’s declaration.

Aubert attests in his declaration that he has never been

employed by ACBL in any capacity. 5 Aubert also attests that was not the supervisor

5

(Rec. Doc. 10-1 at 1).

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on duty at the time of Plaintiff’s accident, and thus, was not responsible for the “setup, upkeep, maintenance, or repair of the barge” on which Plaintiff was allegedly
injured. 6 Finally, he attests that he (1) had no personal knowledge of any hazardous
or dangerous conditions on the barge, (2) did not inspect the barge, (3) had no
responsibility to inspect the barge, and (4) had no responsibility for remedying any
condition on the barge on the date of the accident. 7 To find that Aubert was properly
joined, there must be “a reasonable basis for predicting that the . . . law might impose
liability on the facts involved.” Travis, 326 F.3d at 648 (emphasis in original) (citation
omitted). As the Fifth Circuit has emphasized, this possibility “must be
reasonable, not merely theoretical.” Id. (emphasis in original) (citation omitted). In
this case, the crux of Plaintiff’s negligence claim against Aubert hinges on Aubert’s
alleged supervisory role at ACBL. As such, Plaintiff contends that Aubert had a duty
to maintain, inspect, and implement policies for maintaining and inspecting the barge
on which Plaintiff was allegedly injured.

Here, however, ACBL has presented

evidence which establishes that Aubert was not a supervisor employed by ACBL, and
therefore had no duty or obligation with respect to supervising the work being
performed by Plaintiff. Plaintiff has offered nothing to refute ACBL’s evidence.
Accordingly, to the extent that Plaintiff has alleged that Aubert was an ACBL
supervisor and, thus, owed him a duty of care under either general maritime law or
Louisiana law, there is simply no evidence in the record which supports Plaintiff’s
theory. Therefore, the Court finds that ACBL has carried its burden of demonstrating

6
7

Id. at 1-2.
Id.

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that there is no reasonable basis for predicting that Plaintiff might be able to recover
against Aubert.
In sum, because the Court concludes that Aubert is improperly joined, the
Court may therefore ignore Aubert's citizenship for the purpose of determining the
existence of subject matter jurisdiction. The parties have asserted no other
impediment to this Court's exercise of diversity jurisdiction, and the pleadings and
notice of removal establish that diversity jurisdiction exists in this case. The motion
to remand is therefore denied. For the same reasons that Plaintiff's motion to remand
is denied, it is appropriate to dismiss Plaintiff's claims against Aubert.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (Rec. Doc. 9)
is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s claims against Leslie Aubert are
hereby DISMISSED.
New Orleans, Louisiana, this 24th day of August, 2018.

____________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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