Moore v. Smith et al

Filing 22

MEMORANDUM ORDER that all defendants, except for PPG, have been improperly joined in this case. As such, complete diversity exists in this matter and this court has jurisdiction. Plaintiff Larry Moore's 8 Motion to Remand and 16 Motion to Amend/Correct are both DENIED. Signed by Magistrate Judge Kathleen Kay on 4/2/12. (crt,FinnSld, P)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
LARRY JAMES MOORE

:

CIVIL ACTION NO. 2:11-CV-1224

V.

:

JUDGE MINALDI

JOHN SMITH, ET AL.

:

MAGISTRATE JUDGE KAY

MEMORANUM ORDER

Before the court are Motions to Remand [doc. 8] and for Leave to Amend [doc. 16], filed

by plaintiff Larry James Moore. Both motions are opposed by defendant PPG Industries Inc.
See docs. 18, 20. For the reasons set forth below, plaintiff’s motion to remand [doc. 8] and
motion for leave to amend [doc. 16] are both DENIED.
Background
This case arises from an accident that occurred when plaintiff, Larry James Moore, was
performing environmental testing on the C-1 boiler at the PPG Industries Inc. (PPG) Lake
Charles complex. Doc. 1, att. 3, p. 3. Mr. Moore alleges that a section of equipment, believed to
be piping, fell approximately fifteen feet and struck him on the head, neck, and shoulder, thereby
causing serious and permanent injuries. Id. Mr. Moore further alleges that this incident was the
result of negligence.
On February 14, 2011, Mr. Moore filed suit in Louisiana’s 14th Judicial District Court,
naming PPG, PPG’s employees Jonathan P. Manns, Angela Neugent, and Mark Rhoads (all
domiciled in Louisiana), Ron Williams Construction, Inc. (a Louisiana corporation), and several
fictitious persons and corporations as defendants. See id. at 2. Essentially, Mr. Moore contends

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that PPG employees Manns, Neugent, and Rhoads, while acting in the course and scope of their
employment, were negligent in their duty to oversee the safety of the area where Moore was
injured and that PPG was vicariously liable for their negligence. See id. at 4. Further, Moore
alleges that Ron Williams Construction, Inc., was the independent contractor responsible for
installation and maintenance of the equipment that fell. Id. at 5. The fictitious individuals
named by Mr. Moore are other PPG employees, whose identities are not know to Moore, that
were in charge of safety in the area where the accident occurred; and the fictitious corporations
are the “independent contractor responsible for maintaining the safe condition of the premises in
the area of the C-1 boiler” and the insurance company that issued the policy providing coverage
for Mr. Moore’s accident. See id. at 4-5.
On June 23, 2011, PPG and its employees Manns, Neugent, and Rhodes removed this
case to federal court. Doc. 1. In the removal notice, PPG asserts that it is the only properly
joined defendant to this suit. See id. at 5. For this reason, and because PPG is a Pennsylvania
corporation with its principle place of business in Pennsylvania, PPG asserts complete diversity
with Mr. Moore, who is domiciled in Louisiana. Id. at 5-6. Additionally, PPG contends that it is
apparent from plaintiff’s state court petition that he seeks damages in excess of $75,000. Id. at 6.
Therefore, PPG concludes that valid diversity jurisdiction exists and that removal is proper. Id.
at 7.
Plaintiff filed a Motion to Remand on July 22, 2011. Doc. 8. In support of his motion
Moore disputes PPG’s assertion that all named defendants except PPG are improperly joined.
See doc. 8, att. 1, p. 3-5. Moore also requested a stay of consideration of the motion to remand in
order to conduct jurisdictional discovery. Doc. 9. On August 11, 2011, this court granted

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Moore’s request, with the deadline to amend the motion to remand set for November 11, 2011.
Doc. 12.
After conducting jurisdictional discovery, Mr. Moore filed a supplemental memorandum
in support of his motion to remand. Doc. 13. In his supplemental memorandum Moore indicates
that “[t]hrough the undertaking of jurisdictional discovery, [Moore has] ascertained the identities
of the persons responsible for safety specifically in the C-1 boiler unit.” Id. at 9. Moore
indicates that these people are: David Boyett, the operations team leader responsible for
preventative maintenance and safety inspections at PPG; Marty Landry, who is in charge of
contractor safety at PPG; and Terry Messenger, a unit safety representative at PPG. Id. at 9 n. 6.
Further, Moore alleges that all of these people are domiciled in Louisiana and seeks to add them
as defendants in this suit through a motion for leave to amend. Doc. 16.
In his supplemental memorandum Moore argues that he has valid claims against these
new potential defendants (Boyett, Landry, and Messenger), as well as, valid claims against the
original Louisiana defendants (Manns, Neugent, and Rhoads), “based on their responsibility to
oversee the safety of day to day operations in the area where [Moore] was injured” and for
“negligent failure to maintain and inspect the equipment which injured [Moore].” Doc. 13, p. 9.
Because all of these defendants (actual and potential) are domiciled in Louisiana, Moore
concludes that diversity is lacking and that this suit should be remanded. Id. at 13.
PPG opposes the motion to remand. Doc. 18. PPG reiterates its contention that all
defendants in this case, other than PPG itself, have been improperly joined, and as such, should
not be considered when evaluating whether diversity jurisdiction exists.

See id. at 11-17.

Specifically, PPG argues that Moore has not established in any of his pleadings facts that would

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render the named PPG employees (Mann, Neugent, and Rhoads) personally liable for Moore’s
injuries. See id. at 17.
Additionally, PPG argues that Moore has erroneously identified the equipment that fell
and caused his injuries; rather than piping, as suspected by Moore, PPG states that in actuality
the equipment was electrical conduit. Id. at 11 (citing the deposition of Mark Ardoin, the PPG
Plant C power unit electrician who repaired the equipment). Furthermore, PPG states that
“[Moore] has produced no evidence to show a possibility of liability on the part of [Ron
Williams Construction, Inc.] and says he has no information such is the case; in fact, the
uncontradicted evidence particularly Mr. Aucoin’s uncontroverted affidavit, is that Williams had
nothing to do with the equipment which allegedly fell . . .” Id. at 14. Therefore, PPG concludes
that Ron Williams Construction, Inc. has been improperly joined, and its domicile should be
disregarded for the purposes of determining diversity jurisdiction. Id.
With respect to the fictitious persons and corporations named in Moore’s petition, PPG
asserts that the citizenship of fictitious and non-defendants is immaterial. Id. at 12 (citing 28
U.S.C. § 1441(a)). Further, PPG opposes Moore’s motion to amend his petition to add PPG
employees Boyett, Landry, and Messenger. Doc. 20. PPG suggests that Moore has no valid
claim against Boyett, Landry, or Messenger, and seeks to add them for the sole purpose of
defeating federal diversity jurisdiction. Doc. 20, att. 1, p. 4. For these reasons, PPG requests
that this court deny both Moore’s motion to remand and his motion for leave to amend.
Law and Analysis
Federal Courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). They possess only that power authorized by Constitution
and statute. Id. Congress has bestowed original jurisdiction in federal district courts for all civil

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matters where the parties are citizens of different states and the amount in controversy exceeds
$75,000.00. See 28 U.S.C. § 1332. Civil actions that are filed in state court may be removed to
federal court, by a defendant, if the conditions set forth in section 1332 are met. See 28 U.S.C. §
1441. Additionally, in such cases, federal courts have jurisdiction where the parties are not
completely diverse; if the defendant(s) destroying diversity has been improperly joined. See 28
U.S.C. § 1441(b)(2); Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 572-73 (5th Cir. 2004).
Removing parties bear the burden of showing that federal jurisdiction exists and that
removal was proper. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). In cases
removed based on diversity jurisdiction and improper joinder,1 the removing party must show,
inter alia, either: (1) actual fraud in the pleading of jurisdictional facts, or (2) the 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, 647 (5th Cir. 2003) (citing Griggs v. State Farm Lloyds, 181 F.3d 694, 698 (5th
Cir. 1999). Only the latter method is of concern in this case because PPG has not alleged actual
fraud.
Using this second method of establishing improper joinder, the test is “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. Factual allegations are to be viewed in the light most favorable to
the plaintiff, however, “conclusory or generic allegations of wrongdoing on the part of the nondiverse defendant are not sufficient to defeat a properly supported claim of fraudulent joinder.”
Fry v. Am. Gen. Fin., Inc., 307 F.Supp2d 836, 844 n.6 (S.D. Miss. 2004) (citing Badon v. RJR

1

 There is no substantive difference between the terms “improper joinder” and “fraudulent joinder.” See Smallwood,
385 F.3d at 571 n.1.

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Nabisco, Inc., 224 F.3d 382, 392-39 (5th Cir. 2000)). Plaintiffs must show more than a mere
theoretical possibility of recovery. See Irby, 326 F.3d at 648 (citations omitted).
In conducting this analysis, courts should “pierce the pleadings” and consider “summary
judgment-type evidence such as affidavits and deposition testimony.” Cavallini v. State Farm
Mut. Auto. Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995). However, the standard applied in
evaluation is “closer to the Rule 12(b)(6) standard,” McKee v. Kan. City S. Ry. Co., 358 F.3d
329, 333-34 (5th Cir. 2004), where plaintiffs are prohibited from “rest[ing] upon the mere
allegations or denial of [their] pleadings.” Beck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d
629, 633 (5th Cir. 2000).
In the present case, PPG argues that several defendants have been improperly joined: Ron
Williams Construction, Inc. and PPG employees Jonathan P. Manns, Angela Neugent, and Mark
Rhoads. In addition, several fictitious defendants were named in Moore’s petition, which he
now seeks to amend to add PPG employees David Boyett, Terry Messenger, and Marty Landry
in their place. This court must find that all of these defendants are improperly joined (or would
be joined only to defeat diversity) in order to deny Moore’s motion to remand.
I.

Ron Williams Construction, Inc.
Mr. Moore named Ron Williams Construction, Inc. as a defendant in this suit because

allegedly it was the “independent contractor responsible for installation and maintenance and
safety of the piping on the premises of the subject PPG plant.” Doc. 1, att. 3, p. 5. However,
PPG asserts that, after inspection and repair of the equipment that fell, it was able to identify that
equipment as “small diameter electrical conduit.” Doc. 1, p. 2. Further, PPG contends that Ron
Williams Construction, Inc. “had no involvement in or responsibility for the installation,
inspection or maintenance of the material Mr. Moore claims fell on him.” Id. at 3. This

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contention is supported by the affidavit of Harry A. Aucoin, the maintenance foreman for the
Plant C Power Unit at PPG. Doc. 1, att. 4.
Considering the evidence provided by PPG and further since Moore offered no evidence to
refute that offered by PPG we conclude that Moore has no possibility of recovery against Ron
Williams Construction, Inc. Ron Williams Construction, Inc. is thus improperly joined in this
case and will not be considered for the purpose of determining whether diversity jurisdiction
exists.
II.

PPG Employees Manns, Neugent, and Rhoads
Moore seeks to hold PPG employees Jonathan Manns, Angela Neugent, and Mark

Rhoads personally liable for his injuries because they allegedly were negligent in performing
their duties of “overseeing safety” at PPG. See doc. 1, att. 3, p. 4. The question of whether these
PPG employees are improperly joined is determined by whether Moore could hold them
personally liable for his injuries under Louisiana law. See Irby, 326 F.3d at 647.
The Louisiana Supreme Court has promulgated criteria for subjecting employees to
personal liability for injuries suffered by third parties. Salvant v. Murphy Oil USA, Inc., No. 068700, 2007 WL 854262, at *2 (E.D. La.) (citing Canter v. Koehring, 283 So.2d 716, 721-23 (La.
1973)). To be liable, the employer must owe a duty of care to a third party, the duty must be
delegated by the employer to the defendant, and the “defendant officer, agent, or employee [must
have] breached this duty through personal (as contrasted with technical or vicarious) fault.”
Canter, 283 So.2d at 721. Moreover, “personal liability cannot be imposed upon the officer,
agent, or employee simply because of his general administrative responsibility for performance
of some function of the employment.” Id.
In other words, the employee:

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must have a personal duty towards the injured plaintiff, breach of
which specifically has caused the plaintiff’s damages. If the
defendant’s general responsibility has been delegated with due care
to some responsible subordinate or subordinates, he is not himself
personally at fault and liable for negligent performance of this
responsibility unless he personally knows or personally should
know of its non-performance or mal-performance and has
nevertheless failed to cure the risk of harm.
Dodson v. K-Mart Corp, 891 So.2d 789, 790 (La. App. 3 Cir. 2004).
The allegations by Moore against PPG employees Manns, Neugent, and Rhoads are that
they breached their general administrative responsibility of overseeing safety at PPG. Moore has
not alleged that these employees were directly responsible for his injuries, or that they knew
about the dangerous condition at PPG. In fact, the uncontradicted evidence by PPG is that none
of these defendants had “specific, direct or immediate responsibility for safety and accident
prevention or facilities maintenance in the area where [Moore] alleges he was injured or were in
any way involved in the plaintiff’s alleged injury.” Doc. 1, p. 5 (citing the affidavit of Mark
Rhoads, safety engineer/safety manager at PPG; doc. 1, att. 5).
Therefore, it is the opinion of this court that Mr. Moore has no reasonable possibility of
recovery against PPG employees Mann, Neugent, or Rhoads, and as such, they are all improperly
joined in this case and their place of domicile will not be considered in determining whether
diversity jurisdiction exists.
III.

Fictitious Defendants and Motion to Amend
The rule regarding fictitious defendants in a removal case is clear: “In determining

whether a civil action is removable on the basis [of diversity], the citizenship of defendants sued
under fictitious names shall be disregarded.” 28 U.S.C. § 1441(B). However, in this case, Mr.
Moore seeks leave to amend his petition to replace the fictitious defendants with PPG employees

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David Boyett, Terry Messenger, and Marty Landry.

Doc. 16.

These defendants are all

domiciled in Louisiana, and if added, would destroy diversity. See doc. 16.
Once a responsive pleading has been filed, a plaintiff may not amend the original
complaint except with consent of the opposing party or leave of court, which leave “shall be
freely given when justice so requires.” FED. R. CIV. P. 15(a). Factors to be considered when
considering a request to amend include undue delay, bad faith or dilatory motive on the part of
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party, and futility of the amendment. Foman v. Davis, 371 U.S.
178,182, (1962). While leave of court should be freely given when justice so requires, authority
to amend “is by no means automatic.” Addington v. Farmer’sElevator Mut. Ins. Co., 650 F.2d
663, 666 (5th Cir. 1981) (citing Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099 (5th
Cir. 1979), cert. denied, 446 U.S. 939 (1980)).
Moore seeks to add PPG employees that he identified, through the jurisdictional
discovery process, as being in charge of safety in the area at PPG where he was allegedly
injured. See doc. 16. However, Moore’s accusations are general in nature. The only evidence of
wrongdoing that Moore offers is the PPG employees’ job responsibilities of overseeing safety at
PPG. See doc. 16, att. 2 & doc. 21. There is no evidence of personal fault, which may lead to
personal liability in Louisiana, on behalf of any of these employees.
Accordingly we conclude that allowing Moore to amend his petition and add these
defendants would do nothing more than defeat diversity. Justice does not require leave to be
given in this situation.
Moore’s motion for leave to amend [doc. 16] is DENIED.

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Conclusion
For the foregoing reasons, it is determined that all defendants, except for PPG, have been
improperly joined in this case. As such, complete diversity exists in this matter and this court
has jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441. Plaintiff Larry Moore’s Motion to Remand
[doc. 8] and Motion for Leave to Amend [doc. 16] are both DENIED.
THUS DONE this 2nd day of April, 2012.

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