Terrell v. FCA US LLC et al

Filing 16

ORDER denying 7 Motion for Discovery. Signed by District Judge Keith Starrett on 9/27/2017 (srd)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION HAROLD TERRELL PLAINTIFF v. CIVIL ACTION NO. 2:17-CV-135-KS-MTP FCA US LLC and DANIELLE WATERS DEFENDANTS ORDER This matter is before the Court on the Motion for Leave to Conduct Remand Related Discovery (“Motion for Discovery”) [7] filed by Defendant FCA US LLC (“FCA”). FCA seeks leave to conduct discovery into Plaintiff Harold Terrell’s (“Plaintiff”) intent to abandon his claims against Danielle Waters, the non-diverse defendant, in order to show that removal was proper. In support of its removal theory, FCA cites Ramirez v. Michelin North America, Inc., which states that “when a Plaintiff, at whatever time and for whatever reason, indicates a desire to completely abandon the claims against all non-diverse defendants, those defendants are fraudulently joined, and the case becomes removable at that moment.” C.A. No. C-07-228, 2007 WL 2126635, at *3 (S.D. Tex. July 19, 2007) (quoting Franz v. Wyeth, 431 F.Supp.2d 688, 690 (S.D. Tex. 2004)). However, to demonstrate fraudulent joinder based on voluntary abandonment, FCA must show that Plaintiff made “a definite or unequivocal expression of intent to discontinue the action against the resident party.” Id. (quoting Naef v. Masonite Corp., 923 F.Supp. 1504, 1510 (S.D. Ala. 1996)). Discovery is not warranted to investigate if Plaintiff had the intent to abandon his claims against Danielle Waters, then, because for FCA’s voluntary abandonment theory to apply, Plaintiff must have made his intent known through a “definite or unequivocal expression.” The Motion for Discovery [7] will therefore be denied. IT IS THEREFORE ORDERED AND ADJUDGED that the Motion for Discovery [7] is denied. FCA’s Response to Plaintiff’s Motion to Remand [4] is due fourteen (14) days from the date of this order. Plaintiff’s Rebuttal is due seven (7) days after receipts of FCA’s Response. SO ORDERED AND ADJUDGED, on this, the 27th day of September, 2017. s/Keith Starrett UNITED STATES DISTRICT JUDGE 2

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