Henderson et al v. Proctor & Gamble Manufacturing Co

Filing 15

MEMORANDUM ORDER: The Court, having found that it lacks subject matter jurisdiction in this action, IT IS ORDERED that the above styled and numbered cause be remanded to the 42nd Judicial District Court in and for the Parish of DeSoto, State of Louisiana, in accordance with the provisions of 28 U.S.C. § 1447(c). Signed by Judge Elizabeth E Foote on 11/1/2011. (crt,Putch, A) (Main Document 15 replaced on 11/2/2011) (Putch, A).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

LEKIA HENDERSON and
KEVIN HENDERSON

CIVIL ACTION NO. 11-CV-00709

VERSUS

JUDGE ELIZABETH ERNY FOOTE

PROCTOR & GAMBLE
MANUFACTURING,Individually
and d/b/a CLAIROL, INC.,
ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
For the reasons stated herein, the above styled and numbered cause is hereby
REMANDED sua sponte to the 42nd Judicial District Court for DeSoto Parish, Louisiana.
PROCEDURAL BACKGROUND
Plaintiffs filed the instant action on April 5, 2011, in the 42nd Judicial District Court,
in and for DeSoto Parish, Louisiana, alleging Ms. Henderson sustained personal injuries
after using a hair care product which she purchased at a Family Dollar store in Logansport,
Louisiana, on April 9, 2010.

According to Plaintiffs’ Petition for Damages [Record

Document 1-2], Ms. Henderson experienced an allergic reaction to a certain chemical found
in the product, “Clairol Balsam Color, #12 Natural Black,” which required medical
treatment, including a three day hospital stay, and presently ongoing treatment for asthma,
a condition which developed as a result of her exposure to this product. See Id. Among
the defendants named in Plaintiff’s suit are the seller of the product, Family Dollar of
Louisiana, Inc. (“Family Dollar”); the manufacturer, Proctor & Gamble MFG; the distributor,

Proctor & Gamble Distributing; and third party administrator, Risk Enterprise Management
Ltd (“REM”). Defendants, P&G Clairol, Inc. (“Clairol,” incorrectly named as Proctor &
Gamble MFG and Proctor & Gamble Distributing) and REM filed a Notice of Removal
[Record Document 1] on May 6, 2011, alleging that Family Dollar, the only non-diverse
defendant in this case, was improperly joined by Plaintiffs to defeat diversity jurisdiction.
A Removal Order [Record Document 3] was issued by this Court on May 11, 2011, prior
to the filing of a responsive pleading by Family Dollar. Family Dollar filed a Motion to
Dismiss [Record Document 9] on June 23, 2011, contending that claims against it should
be dismissed for Plaintiffs’ alleged failure to state a claim, or in the alternative, based upon
the pleadings.
LAW AND ANALYSIS
Title 28 of the United States Code, Section 1441(b) provides:
Any civil action of which the district courts have original
jurisdiction founded on a claim or right arising under the
Constitution, treaties or laws of the United States shall be
removable without regard to the citizenship or residence of the
parties. Any other such action shall be removable only if none
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) (emphasis added).
Diversity jurisdiction was designed to protect out-of-state defendants from possible
prejudices in state court, but the forum-defendant rule exists because those concerns are
obviated in cases where the defendant is a citizen of the state in which the case is brought.
See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 553, 125 S.Ct. 2611,
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2617, 162 L.Ed.2d 502 (2005). The “properly joined and served” provision of § 1441(b)
prevents a plaintiff from joining a resident defendant against whom the plaintiff knows it
cannot successfully proceed in order to defeat subject matter jurisdiction.
To demonstrate “improper” or “fraudulent joinder,” the removing defendants must
show either (1) actual fraud in the pleading of jurisdictional facts, or (2) that the plaintiff
is unable to establish a cause of action against the nondiverse defendant.1 Campbell v.
Stone Ins., 509 F.3d 665, 669 (5th Cir. 2007). Under the second prong, “the court must
determine whether ‘there is arguably a reasonable basis for predicting that state law might
impose liability.’”2 Id. (quoting Ross v. Citifinancial, Inc., 344 F.3d 458, 462 (5th Cir.
2003), cert. denied, 546 U.S. 813, 126 S.Ct. 335, 163 L.Ed.2d 48 (2005)). “This means
that there must be a reasonable possibility of recovery, not merely a theoretical one.” Id.
(emphasis in original). The Court must take into account “all unchallenged factual
allegations, including those in the complaint, in the light most favorable to the plaintiff” and
“must resolve all ambiguities of state law in favor of the non-removing party.” Campbell,
509 F.3d at 659 (quoting Ross, 344 F.3d at 463; Travis v. Irby, 326 F.3d 644, 649 (5th Cir.
2003)).

1

The burden of establishing improper joinder rests on the removing defendants, and the
Fifth Circuit has emphasized that this burden is a “heavy one.” McDonal v. Abbott Laboratories,
408 F.3d 177, 183 (5th Cir. 2005) (quoting Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th
Cir. 1999)).
2

Because defendants do not claim “actual fraud in the pleading of jurisdictional facts”
(See Record Documents 1 and 9), the Court need only to determine whether Plaintiffs have
established a cause of action against Family Dollar.

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Defendants contend Plaintiffs’ Petition fails to state a cause of action against Family
Dollar, a nonmanufacturer seller, under Louisiana law. See Record Document 1. Of course,
Louisiana law does provide recovery against a seller for damages sustained from the use
of defective products. See La. Civ. Code arts 2520, 2545. Plaintiffs have alleged Family
Dollar sold Ms. Henderson a defective product which caused her injury; thus, this is not a
case of a nominal defendant being joined to defeat diversity jurisdiction. The absence of
allegations specific to the nature and extent of Family Dollar’s knowledge is easily curable
by Plaintiffs, if necessary. When considering all of the factual allegations of the Petition in
a light most favorable to Plaintiffs, there is certainly a reasonable possibility of recovery
against Family Dollar, a resident defendant.
CONCLUSION
The Court, having found that it lacks subject matter jurisdiction in this action,
IT IS ORDERED that the above styled and numbered cause be remanded to the
42nd Judicial District Court in and for the Parish of DeSoto, State of Louisiana, in accordance
with the provisions of 28 U.S.C. § 1447(c).
THUS DONE AND SIGNED in Shreveport, Louisiana, on this 1st day of November,
2011.

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