Campbell et al v. J&B Motorsports, LLC et al
Filing
22
ORDER granting 6 Motion to Remand to State Court. Signed by District Judge Debra M. Brown on 7/22/16. (jtm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
BIFFLE CAMPBELL; and
CHRISTOPHER CAMPBELL
PLAINTIFFS
V.
NO. 3:15-CV-00159-DMB-SAA
J&B MOTORSPORTS, LLC; and
BOMBARDIER RECREATIONAL
PRODUCTS, INC.
DEFENDANTS
ORDER GRANTING REMAND
This products liability action is before the Court on the motion to remand of Biffle
Campbell and Christopher Campbell. For the reasons below, the motion will be granted in part
and denied in part.
I
Procedural History
On June 25, 2015, Biffle Campbell and Christopher Campbell initiated this product
liability action in the Circuit Court of DeSoto County, Mississippi, against J&B Motorsports,
LLC (“J&B”), and BRP US, Inc. Doc. #4-2. On August 20, 2015, the DeSoto County Circuit
Court entered an agreed order dismissing with prejudice BRP US, Inc., and granting the
Campbells’ unopposed motion for leave to file an amended complaint adding Bombardier
Recreational Products, Inc. (“Bombardier”), as a defendant.1 Doc. #4-8. The same day, the
Campbells filed an amended complaint naming Bombardier as a defendant. Doc. #2.
The Campbells’ state court amended complaint asserts that on April 1, 2014, Christopher
1
According to Bombardier’s notice of removal, “BRP US, Inc. is a United States distributor of products
manufactured by Bombardier” and that “[o]nce Plaintiffs learned they named a distributor and not the manufacturer
of the product at issue in Plaintiffs’ lawsuit,” they agreed to dismiss BRP US, Inc., and add Bombardier as a named
defendant. Doc. #1 at ¶¶ 1–2.
purchased a 2014 Can-Am Outlander 1000 XMR ATV from J&B, which was manufactured and
distributed by Bombardier. Id. at ¶¶ 5–6. The amended complaint further alleges that on May
10, 2014, the ATV ignited and burned down Biffle’s home. Id. at ¶¶ 6–10. Regarding the state
court’s jurisdiction, the amended complaint alleges that: (1) Biffle is a citizen of Mississippi, id.
at ¶ 1; (2) “[p]rior to and on May 10, 2014,” Christopher was a resident of Mississippi but “now
resides” in Florida, id. at ¶ 2; (3) J&B is a “Mississippi limited liability company” with its
principal place of business in Mississippi, id. at ¶ 3; and (4) Bombardier “is a corporation
organized and existing under the laws of Canada, whose principal place of business is located
[in] Canada,” id. at ¶ 4.
On September 21, 2015, Bombardier, alleging diversity jurisdiction, filed a notice of
removal in this Court. Doc. #1. Regarding the citizenship of the parties, Bombardier alleges in
its removal notice:
Upon information and belief, Plaintiff Biffle Campbell was and is a citizen of the
State of Mississippi as of the date of filing the First Amended Complaint. And
upon information and belief, Plaintiff Christopher Campbell was and is a citizen
of the State of Florida as of the date of filing the First Amended Complaint.
Defendant Bombardier is, and was at the time of the filing of the First Amended
Complaint, a corporation incorporated under the laws of the Province of Quebec,
Canada, with its principal place of business in Valcourt, Canada and not in
Mississippi.
Id. at ¶¶ 15–16 (internal citations and paragraph numbering omitted). As for J&B, Bombardier
alleges that because “J&B was improperly joined for the sole purpose of defeating diversity
jurisdiction,” “[t]his Court should ignore the citizenship of J&B for the purpose of determining
diversity and exercise subject matter jurisdiction of Plaintiffs’ claims against Bombardier
2
because complete diversity exists between Plaintiffs and the only properly named Defendant.”2
Id. at ¶¶ 21–22. In arguing that J&B was improperly joined, Bombardier contends that “[f]or any
claims relating to the sale of the subject ATV, J&B is an innocent seller under Mississippi law,
immune from liability under Miss. Code Ann. § 11-1-63(h)” and that “Plaintiffs assert only
conclusory allegations regarding the alleged liability of J&B.” Id. at ¶¶ 19–20.
On October 5, 2015, the Campbells filed a motion to remand this action to the DeSoto
County Circuit Court. Doc. #6. The Campbells contend that “diversity of citizenship does not
exist in this action” because they alleged “viable claims for relief against the resident Defendant,
J&B.” Id. at ¶¶ 2–3. Specifically, the Campbells argue that the innocent seller exception does
not apply to the claims against J&B because “Plaintiffs specifically plead that, although J&B was
aware of the availability of a heat dissipation kit and the necessity for it, it did not ensure the heat
dissipation kit was installed on the [ATV] Plaintiff Christopher Campbell purchased.” Doc. #7
at 7 (citing Doc. #2 at ¶ 10). Arguing that “removal was improper,” the Campbells also ask that
Bombardier be ordered to pay their “just costs and actual expenses, including attorneys’ fees,
incurred as a result of the removal as provided in 28 U.S.C. § 1447(c).” Doc. # 6 at ¶¶ 4–5.
Bombardier filed a response to the motion to remand on October 27, 2015, after
requesting and receiving an extension to respond. Doc. #10; Doc. #11. In the memorandum
2
Bombardier does not specify the state of J&B’s citizenship anywhere in its notice of removal but apparently
assumes that J&B is a Mississippi citizen based on the allegations of the Campbells’ amended complaint, which
alleges that J&B is a Mississippi limited liability company doing business in Mississippi with its principal place of
business in Mississippi. Doc. #2 at ¶ 3. The citizenship of a limited liability company is based on the citizenship of
all of its members. Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). “For diversity
jurisdiction, the party asserting federal jurisdiction must distinctly and affirmatively allege the citizenship of the
parties.” Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001) (internal punctuation and quotation marks
omitted). Bombardier, as the party asserting this Court’s jurisdiction, has the burden of distinctly and affirmatively
alleging the citizenship of the parties but it did not do so by failing to identify all of J&B’s members and the
citizenship of each. Ordinarily, Bombardier would have been allowed the opportunity to cure the deficient
allegations in the removal notice as to the citizenship of J&B. However, given the Court’s ultimate decision about
remand, Bombardier’s failure in this regard is of no moment.
3
brief accompanying its response, Bombardier argues that “Christopher Campbell’s ATV came
factory-equipped with a high heat kit. Plaintiffs’ allegation that the subject ATV was without a
high heat kit is an unsupported misstatement of a discrete jurisdictional fact.” Doc. #12 at 4.
Bombardier also argues that innocent seller immunity applies to J&B because J&B lacked actual
knowledge of a defect with the ATV. Id. at 7. The response urges the Court to pierce the
pleadings and consider: (1) an ATV Warranty Bulletin issued by Bombardier; (2) an affidavit of
Luc Bouchard, Bombardier’s Director of Product Development; (3) an affidavit of Phillip Jolly,
J&B’s General Manager; and (4) information obtained from “Bombardier’s online information
platform known as ‘BOSSWeb.’” Id. at 2, 5.
The Campbells filed a reply and accompanying memorandum brief in support of their
motion to remand on November 9, 2015, after being granted a requested extension. Doc. #14;
Doc. #15; Doc. #16. In support of their reply, the Campbells attached an affidavit from Greg
Jackson, a certified fire and explosion investigator, who avers that he inspected the ATV in
question and concluded that a heat dissipation kit had not been installed. Doc. #14-1.
On December 8, 2016, Bombardier filed a motion for leave to file a sur-reply to address
the evidence presented in Jackson’s affidavit. Doc. #17. The proposed sur-reply includes a
second affidavit of Bouchard which addresses the conclusions in Jackson’s affidavit. Doc. #171. The Campbells responded in opposition to the motion, and Bombardier filed a timely reply.
Doc. #19; Doc. #21.
II
Motion for Leave to File Sur-Reply
“While it is true that the Federal Rules of Civil Procedure do not expressly allow for a
surreply by a nonmovant[,] ... a sur-reply is appropriate when the movant’s rebuttal raises new
legal theories or attempts to present new evidence at the reply or rebuttal stage.” Elwood v.
4
Cobra Collection Agency, No. 2:06–cv–91, 2006 WL 3694594, at *7 (S.D. Miss. Dec. 14, 2006).
However, “surreplies are heavily disfavored by courts.” Warrior Energy Servs. Corp. v. ATP
Titan M/V, 551 F. App’x. 749, 751 n.2 (5th Cir. 2014) (internal alteration omitted). Accordingly,
the Court must decide whether the Campbells’ reply raised new legal theories or attempted to
present new evidence.
In the memorandum accompanying their response to the motion for leave, the Campbells
do not argue that the Jackson affidavit is not new evidence. Rather, they argue that the affidavit
“did not raise new arguments; it merely buttresses the same argument Plaintiffs have consistently
made throughout the course of litigation.” Doc. #20 at 2. The Campbells do not, however, cite
authority that a reply may present new evidence so long as it does not raise a new argument.
Having reviewed the motion and all related documents, the Court finds that Bombardier
has stated proper cause to allow the filing of a sur-reply. See Doe v. Exxon Mobil Corp., 69
F.Supp.3d 75, 85 (D.D.C. 2014) (leave to file sur-reply granted where party’s reply included
expert declaration). Accordingly, the motion for leave is granted and the Court will consider
Bombardier’s sur-reply in deciding the Campbells’ motion to remand.
III
Standard of Review
Of relevance here, the district courts have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs,
and is between “citizens of a State and citizens or subjects of a foreign state, except that the
district courts shall not have original jurisdiction under this subsection of an action between
citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for
permanent residence in the United States and are domiciled in the same State.” 28 U.S.C. §
1332(a)(2). There must be complete diversity between all named parties. Jernigan v. Ashland
5
Oil Inc., 989 F.2d 812, 814 (5th Cir. 1993). “Complete diversity requires that all persons on one
side of the controversy be citizens of different states than all persons on the other side.” Harvey,
542 F.3d at 1079 (internal quotation marks omitted).
Bombardier alleges, and the Campbells do not contest, that the amount in controversy
exceeds $75,000. Doc. #1 at ¶¶ 12–14. With regard to diversity, Bombardier contends that at
the time of removal and at the time of filing of the amended complaint: (1) Bombardier was a
foreign corporation with its principal place of business in Canada; (2) Biffle was a citizen of
Mississippi; and (3) Christopher was a citizen of Florida. Id. at ¶¶ 15–16. Bombardier asserts
that the citizenship of J&B is irrelevant because it is an improperly joined defendant. Id. at ¶¶
17–19.
“The improper joinder doctrine constitutes a narrow exception to the rule of complete
diversity.” McDonal v. Abbot Labs., 408 F.3d 177, 183 (5th Cir. 2005). Under this doctrine, “a
district court is prohibited by statute from exercising jurisdiction over a suit in which any party
… has been improperly or collusively joined to manufacture federal diversity jurisdiction.”
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir. 2004) (emphases omitted). The
“heavy” burden of showing improper joinder rests with the removing party. Cuevas v. BAC
Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011).
The Fifth Circuit has recognized two 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 non-diverse party in state court.” Travis v. Irby, 326 F.3d 644, 647 (5th Cir.
2003). The latter inquiry centers on “whether the defendant has demonstrated that there is no
possibility of recovery by the plaintiff against a [non-diverse] defendant, which stated differently
means that there is no reasonable basis for the district court to predict that the plaintiff might be
6
able to recover against [the] defendant.” Smallwood, 385 F.3d at 573. In resolving this question,
“[a] district court should ordinarily … conduct[] a Rule 12(b)(6)-type analysis. However, in
cases where the plaintiff has stated a claim, but ‘misstated or omitted discrete facts’ the district
court has the discretion to pierce the pleadings and conduct a summary inquiry.” McDonal, 408
F.3d at 183 n.6. The party asserting improper joinder bears the burden at each stage of this
inquiry. See Barbee v. Scott, No. H-10-1797, 2010 WL 3257477, at *7 (S.D. Tex. Aug. 17,
2010) (“The court concludes, therefore, that under a Rule 12(b)(6)-type analysis the defendants
have failed to meet their burden of establishing improper joinder.”); see also Veritas Consulting
Grp. Inc. v. Gasbuddy Org., Inc., No. C-10-147, 2010 WL 2598386, at *3 n.3 (S.D. Tex. June
24, 2010) (“[E]ven if this Court were to pierce the pleadings and consider the summary judgment
type evidence, removing Defendants have not met their burden of proving improper joinder.”).
When a court elects to pierce the pleadings, it may consider summary judgment-type
evidence, “such as affidavits and deposition testimony.” Toney v. Lowery Woodyards and
Emp’rs Ins. of Wausau, 278 F.Supp.2d 786, 790 (S.D. Miss. 2003) (quoting Cavallini v. State
Farm Mut. Auto Ins. Co., 44 F.3d 256 (5th Cir. 1995)). In so doing, the court must “take into
account all unchallenged factual allegations, including those alleged in the complaint, in the light
most favorable to the plaintiff.” Irby, 326 F.3d at 649. Furthermore, “[a]ny contested issues of
fact and any ambiguities of state law must be resolved in [the plaintiff’s] favor.” Id. However,
“if the defendant presents summary judgment-type evidence to show that plaintiff’s allegations
in his complaint are unfounded as a matter of fact, then the plaintiff, to secure remand, may not
rest on the mere allegations or denials of his pleadings, or rely on conclusory or generic
allegations of wrongdoing on the part of the non-diverse defendant ….” Toney, 278 F.Supp.2d at
790 (internal citations, alterations, and quotation marks omitted).
7
IV
Remand
The Campbells maintain that complete diversity is lacking and remand is appropriate
because Biffle and J&B are both Mississippi citizens. Doc. #6 at ¶ 1. While Bombardier seems
to agree that J&B is a Mississippi citizen, it argues that this Court nonetheless has jurisdiction
because “Plaintiffs’ allegation that the subject ATV was without a high heat kit is an
unsupported misstatement of a discrete jurisdictional fact.” Doc. #12 at 4. Bombardier bases
this assertion on the second improper joinder inquiry, that is, the inability to establish a cause of
action against the allegedly improperly joined defendant. 3 Accordingly, the Court must decide:
(1) if the Campbells have failed to state a claim under a 12(b)(6) standard; (2) if the Court should
pierce the pleadings; and (3) if piercing the pleadings is warranted, whether the Campbells have
no possibility of recovery against J&B under a summary inquiry.
A. 12(b)(6) Analysis
As with motions to dismiss for failure to state a claim, under the improper joinder
inquiry, “[a] plaintiff fails to state a claim for relief under Rule 12(b)(6) when the complaint does
not contain ‘enough facts to state a claim to relief that is plausible on its face.’” Harried v.
Forman Perry Watkins Krutz & Tardy, 813 F.Supp.2d 835, 840 (S.D. Miss. 2011) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Such analysis must be done in the context of
Rule 8’s notice pleading standard, which requires only a short and plain statement of the claim
showing that the pleader is entitled to relief in order to give defendant fair notice of what the
claim is and the grounds upon which it rests.” Id. (internal quotation marks and alterations
omitted) (citing Twombly, 550 U.S. at 554–55).
3
Bombardier’s brief characterizes this as a “misstatement of a discrete jurisdictional fact,” but jurisdictional facts
relate to allegations of citizenship. See Irby, 326 F.3d at 647 (“The defendants do not dispute that Irby is a
Mississippi resident. Accordingly we focus on the second test.”).
8
As stated above, in support of its claim that J&B was improperly joined, Bombardier, in
its notice of removal, asserts two arguments. First, Bombardier alleges that the Campbells
cannot establish a cause of action against J&B because J&B is an innocent seller immune from
liability under Mississippi law. Doc. #1 at ¶ 19. Next, Bombardier argues that the Campbells’
complaint asserts only conclusory allegations regarding J&B’s liability. Id. at ¶ 20. In its
response to the motion for remand, however, Bombardier addresses only the innocent seller
argument.
1. Conclusory Allegations
A ground for removal that is included in a notice of removal but not raised in response to
a motion to remand is deemed waived. Fournier v. Lufthansa German Airlines, 191 F.Supp.2d
996, 1005 (N.D Ill. 2002). Accordingly, insofar as Bombardier has not advanced its argument
concerning conclusory allegations in its response to the motion to remand, such argument is
deemed waived. Id. However, out of an abundance of caution, the Court will address the nature
of the Campbells’ allegations.
In their amended complaint, the Campbells assert two claims against J&B arising from
the allegedly defective ATV: (1) a claim for negligence, and (2) a claim for strict liability. Doc.
#2 at ¶¶ 16–30. The Mississippi Products Liability Act (“MPLA”) “has abrogated productsliability claims based on strict-liability or negligence theories, and ... now provides the roadmap
for such claims.” Elliot v. El Paso Corp., 181 So.3d 263, 268 (Miss. 2015). As with other
negligence claims, “[i]n order to recover in a negligence case [under the MPLA], a plaintiff must
prove by a preponderance of the evidence (1) duty, (2) breach, (3) causation, and (4) injury.” Id.
(internal quotation marks omitted).
With regard to their negligence claim against J&B, the Campbells allege:
9
Defendant, J&B, was negligent in that it failed to use reasonable care when it
distributed and sold the 2014 Can-Am Outlander 1000 XMR. More particularly,
it failed to use reasonable care in distributing and selling the Outlander without
adequate heat dissipation to prevent overheating of combustible parts of the
Outlander.
Defendant, J&B, owed a duty to Plaintiffs to distribute and sell the 2014 Can-Am
Outlander 1000 XMR that was safe and of good quality and to provide a product
that would perform as it was intended and expected.
Defendant, J&B, breached its duty owed to the Plaintiffs.
As a direct and proximate result of the negligence of the Defendant, J&B,
Plaintiffs suffered damages including the loss of real and personal property in the
fire caused by the Outlander.
Doc. #2 at ¶¶ 17–20 (paragraph numbering omitted).
Rather than being conclusory, the
Campbells provide specific and detailed factual allegations regarding each of the elements of
their negligence claim. Because these allegations are not conclusory, Bombardier’s argument to
the contrary is rejected.4
2. Innocent Seller
Regarding Bombardier’s innocent seller argument, at the time period relevant to this
action,5 Miss. Code Ann. § 11-1-63(h) provided:
In any action alleging that a product is defective pursuant to paragraph (a) of this
section, the seller of a product other than the manufacturer shall not be liable
unless the seller exercised substantial control over that aspect of the design,
testing, manufacture, packaging or labeling of the product that caused the harm
for which recovery of damages is sought; or the seller altered or modified the
product, and the alteration or modification was a substantial factor in causing the
harm for which recovery of damages is sought; or the seller had actual or
constructive knowledge of the defective condition of the product at the time he
4
Having concluded that the negligence claim survives the 12(b)(6) inquiry, the Court declines to address the merits
of the strict liability claim.
5
On March 17, 2014, the Mississippi Legislature approved an amendment to the MPLA. 2014 Miss. Laws WL No.
48 (H.B.680). The amended statute, which went into “force from and after July 1, 2014,” does not apply to this
action. Tie–Reace Hollingsworth ex rel. McDonald v. City of Laurel, 808 So.2d 950, 954 (Miss. 2002) (“[I]f a
statute is to apply ‘effective from and after passage’ it is not to apply to causes of action that have accrued prior to
the passage of the statute.”).
10
supplied the product. It is the intent of this section to immunize innocent sellers
who are not actively negligent, but instead are mere conduits of a product.
This Court has previously determined that the innocent seller exemption is an affirmative
defense under Mississippi law. Thomas v. FireRock Prods., LLC, 40 F.Supp.3d 783, 791–92
(N.D. Miss. 2014). “In order for [a 12(b)(6)] dismissal to be appropriate on the basis of an
affirmative defense, the defense must be established on the face of the complaint.” Id. (quoting
Encompass Office Sols., Inc. v. Ingenix, Inc., 775 F.Supp.2d 938, 959 (E.D. Tex. 2011)).
Nowhere in the amended complaint do the Campbells allege that J&B qualifies for the
innocent seller affirmative defense. To the contrary, the Campbells allege that J&B is not an
innocent seller immune from liability under § 11-1-63(h) because J&B had “actual knowledge
that there was a problem with overheating under the seat area of the Outlander” and knew “of the
availability of [a] heat dissipation kit but did not install the kit ... before selling it to the Plaintiff
….” Doc. #2 at ¶ 10. Accordingly, the innocent seller exemption does not cause the amended
complaint to fail under a 12(b)(6) standard.
B. Piercing the Pleadings and Summary Inquiry
The Fifth Circuit has cautioned that, in exercising discretion to pierce the pleadings, a
court must be mindful “that a summary inquiry is appropriate only to identify the presence of
discrete and undisputed facts that would preclude plaintiff’s recovery against the [allegedly
improperly joined] defendant.” Smallwood, 385 F.3d at 573–74. Anything more “carries a
heavy risk of moving the court beyond jurisdiction and into a resolution of the merits, as
distinguished from an analysis of the court’s diversity jurisdiction by a simple and quick
exposure of the chances of the claim against the in-state defendant alleged to be improperly
joined.” Id. at 574.
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Bombardier argues this Court should pierce the pleadings and conduct a summary inquiry
because “Plaintiffs’ allegation that the subject ATV was without a high heat kit is an
unsupported misstatement of a discrete jurisdictional fact” and “J&B had no knowledge of a
known defect as Plaintiffs contend in the Amended Complaint.” Doc. #12 at 4, 8. On these
points, the parties have submitted an ATV Warranty Bulletin, information from Bombardier’s
website regarding warranties, and five affidavits.
First, regarding the alleged absence of the high heat kit, Jackson’s affidavit and
Bouchard’s second affidavit offer competing technical conclusions regarding the presence of the
heat kit based on inspections of the damaged ATV. Based on the contents of Jackson’s affidavit
and Bouchard’s second affidavit, it appears that resolution of the question of the presence of the
heat kit would require that the Court address technical questions related to the ATV and assess
the credibility of Jackson and Bouchard. Such an inquiry would take the Court well beyond the
summary proceedings prescribed by the Fifth Circuit. See Conner v. Kraemer-Shows Oilfield
Servs., 876 F.Supp.2d 750, 755 (W.D. La. 2012) (resolution of conflicting evidence “would
require a fact-finding exercise that would go well beyond the summary inquiry).
Second, as to knowledge, Christopher’s affidavit avers that three days after the fire, he
spoke with “the maintenance manager of J&B who runs the service side of the dealership” and
was informed that his “particular Can-Am make and model” had a “propensity … to overheat,”
and that “overheating is common with Can-Am four-wheelers.” Doc. #14-2 at ¶ 5. In contrast,
Jolly, the general manager at J&B, avers that J&B received an ATV Warranty Bulletin for the
make and model of the Campbells’ ATV, but that the bulletin did not include the serial number
for the specific ATV sold to the Campbells. Doc. #11-2 at ¶¶ 7–8. While the Jolly affidavit
establishes that the Campbells’ ATV was not subject to a warranty bulletin or warranty
12
campaign, it does not state that warranty bulletins and warranty campaigns are the exclusive
means for gaining knowledge of product defects. Accordingly, the affidavit does not rebut the
specific allegation in the amended complaint that J&B had actual knowledge of overheating in
the ATV. In the absence of such a contradiction, Bombardier cannot show a misstatement or
omission of a fact which would justify piercing the pleadings. See McDonal, 408 F.3d at 183
n.6.
In sum, Bombardier cannot show that piercing the pleadings is appropriate to resolve
either of the identified factual issues. Accordingly, the Court will not pierce the pleadings and,
therefore, declines to conduct a summary inquiry.
C. Existence of Improper Joinder
Having concluded that the Campbells have stated a claim against J&B under a 12(b)(6)
standard and that piercing the pleadings would be inappropriate, the Court concludes that J&B
was not improperly joined and that, therefore, remand is required.
V
Costs and Expenses
The Campbells request the Court award attorney’s fees, costs and expenses under 28
U.S.C. § 1447(c). Doc. #6 at ¶ 5. Under § 1447(c), “[a]n order remanding the case may require
payment of just costs and any actual expenses, including attorney fees, incurred as a result of the
removal.” The decision whether to award costs and expenses is discretionary. Valdes v. WalMart Stores, Inc., 199 F.3d 290, 292 (5th Cir. 2000). Attorney’s fees should only be awarded
“when the removing party lacks an objectively reasonable basis for removal.” Am. Airlines, Inc.
v. Sabre, Inc., 694 F.3d 539, 542 (5th Cir. 2012). This standard also applies to the Court’s
determination of whether to award costs and expenses on remand. See Glover v. DG Louisiana,
LLC, No. CIV.A. 14-151-SDD, 2014 WL 3513394, at *5 (M.D. La. July 15, 2014) (considering
13
objective reasonableness in the context of costs of remand).
The Court finds that although Bombardier failed to establish J&B was improperly joined,
it still had an objectively reasonable basis under Mississippi law for removal. Therefore, an
award of attorney’s fees, expenses, and costs is unwarranted.
VI
Conclusion
For the reasons above:
1.
Bombardier’s motion for leave to file a sur-reply [17] is GRANTED; and
2.
The Campbells’ motion to remand [6] is GRANTED in Part and DENIED in
Part. The motion is GRANTED to the extent it seeks remand and is DENIED to the extent it
seeks attorney’s fees, expenses, and costs. This action is REMANDED to the Circuit Court of
DeSoto County, Mississippi.
SO ORDERED, this 22nd day of July, 2016.
/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE
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