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)

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

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