United States District Court, S.D. Texas, Corpus Christi Division
Tagle Senior United States District Judge
REMEMBERED, that on July 18, 2017, the Court GRANTED
Defendant FCA USA L.L.C.'s Motion for Leave to File
Sur-Reply, Dkt. No. 12; and GRANTED Plaintiff's Opposed
Motion to Remand, Dkt. No. 7.
an automotive products liability action brought by Plaintiff
Eloise Ray (“Ray”) against Defendants FCA USA,
L.L.C. d/b/a/ Chrysler (“FCA US”) and Love
Chrysler, Dodge, Jeep, L.L.C. (“Love Chrysler”).
On January 28, 2017, Ray filed an original petition in the
229th District Court of Duval County, Texas, alleging claims
of negligence and strict products liability against FCA US,
and negligence, negligent misrepresentation, and strict
products liability against Love Chrysler. Dkt. No. 1-2, Ex. B
[hereinafter “Pl.'s Orig. Compl.”]
¶¶ 5.1-5.4, 5.11, 5.12, 6.1. FCA U.S. was the
manufacturer of a 2014 Dodge Ram 1500 purchased by Ray on
July 7, 2014 and Love Chrysler was its non-manufacturing
seller. Id. ¶¶ 4.2, 4.3; Dkt. No. 9 at 9.
original petition states that on or around October 20, 2016
her 2014 Dodge Ram 1500 rolled over her while she was
unloading the car in her driveway. Pl.'s Orig. Compl.
¶ 4.1. Ray alleges that the rollover occurred when the
vehicle's electronic transmission shifter disengaged from
park into forward gear without driver input. Id. She
seeks general and special compensatory damages in excess of
one million dollars. Id. ¶ 8.1. Love Chrysler
filed an answer to Ray's complaint on February 21, 2017.
Dkt. No. 1-2, Ex. E. FCA U.S. filed an answer to Ray's
complaint on February 24, 2017. No. 1-2, Ex. F. On March 3,
2017, Defendant FCA U.S. timely filed a notice of removal in
this court pursuant to 28 U.S.C. §§ 1441 and 1446,
citing 28 U.S.C. 1332 as the basis for this Court's
subject matter jurisdiction over Ray's claims. Dkt. No. 1
at 1. Both FCA U.S. and Love Chrysler consented to
removal.Dkt. No. 1 at 6.
U.S. is a foreign defendant. Dkt. No. 1 at 3. Ray is a
resident of Duval County, Texas, and her alleged injury
occurred at home. Pl.'s Orig. Compl. ¶¶ 2.1,
3.1. Love Chrysler, like Ray, is a resident of Texas. Dkt.
No. 7 at 7. FCA US, however, asks the Court to disregard Love
Chrysler's citizenship for the purposes of diversity
jurisdiction, on the basis that Love Chrysler was improperly
joined in this action to defeat diversity jurisdiction. Dkt.
No. 1 at 3; Dkt. No. 8 at 1. On April 3, 2017, Ray filed an
opposed motion to remand, alleging that Love Chrysler is an
improperly joined party, whose presence in this action
defeats complete diversity and strips this Court of
jurisdiction. Dkt. No. 7. On April 21, 2017, FCA U.S. filed a
response to Ray's motion to remand. Dkt. No. 8. Ray
replied to this response on April 26, 2017. Dkt. No. 9. On
May 3, 2017, FCA U.S. filed a sur-reply to Ray's motion
for remand along with a motion for leave to file a
sur-reply. Dkt. Nos. 12, 12-1.
Subject Matter Jurisdiction
federal courts are courts of limited jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375, 377 (1994). The federal diversity statute provides
the federal district courts with original jurisdiction over
civil actions where the amount in controversy exceeds $75,
000 and where the parties are citizens of different states.
See 28 U.S.C. § 1332(a). This statute requires
“complete diversity, ” meaning that the statute
“applies only to cases in which the citizenship of each
plaintiff is diverse from the citizenship of each
defendant.” Caterpillar, Inc. v. Lewis, 519
U.S. 61, 68 (1996).
district courts also have removal jurisdiction over civil
actions that could have originally been brought in federal
court. 28 U.S.C. § 1441(a); Gutierrez v.
Flores, 543 F.3d 248, 251 (5th Cir. 2008). The federal
removal statute provides that a suit may be removed from
state court “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); Smallwood v. Illinois Cent. R. Co.,
385 F.3d 568, 572 (5th Cir. 2004); Moreno Energy, Inc. v.
Marathon Oil Co., 884 F.Supp.2d 577, 588 (S.D. Tex.
2012) (noting that an improperly joined defendant's
citizenship is disregarded for the purposes of diversity
“because the effect of removal is to deprive the state
court of an action properly before it, removal raises
significant federalism concerns.” Carpenter v.
Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66
(5th Cir.1995) (citing Merrell Dow Pharm., Inc. v.
Thompson, 478 U.S. 804, 809 (1986)). Accordingly, the
removal statute is “strictly construed, and any doubt
about the propriety of removal must be resolved in favor of
remand.” Gasch v. Hartford Acc. & Indem.
Co., 491 F.3d 278, 281-82 (5th Cir. 2007).
Improper Joinder Standard
burden of proving that complete diversity exists rests upon
the party seeking to invoke the court's diversity
jurisdiction. Getty Oil Corp. v. Insurance Co. of North
America, 841 F.2d 1254, 1259 (5th Cir. 1988).
Accordingly, a removing defendant has the “heavy
burden” of establishing that removal was proper.
Smallwood v. Illinois Cent. R. Co., 385 F.3d 568,
574 (5th Cir. 2004). There are two ways to establish improper
joinder: (1) actual fraud in the pleading of
jurisdictional facts, or (2) the inability of a 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) (citation omitted). Here, FCA U.S. relies only on
the second test, under which the court evaluates
“whether the defendant has demonstrated that there is
no possibility of recovery by the plaintiff against an
in-state 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 (5th
Cir. 2004). For remand to be granted, a plaintiff should have
more than a “mere theoretical possibility of recovery
under local law.” Badon v. RJR Nabisco, Inc.,
236 F.3d 282, 286 n.4 (5th Cir. 2000) (emphasis removed).
a plaintiff can show a reasonable basis of recovery if he can
survive a 12(b)(6) motion to dismiss for failure to state a
claim. Davidson v. Georgia-Pacific, L.L.C., 819 F.3d
758, 765 (5th Cir. 2016) (citations omitted). This means a
plaintiff's complaint must contain “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009). The facts alleged
“must be enough to raise a right to relief above the
speculative level ... on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. at 555.
assessing whether a plaintiff seeking remand has satisfied
the 12(b)(6) standard in stating a cause of action against an
in-state defendant, a court considers the allegations in the
complaint available at the time of removal.
v. Georgia-Pacific, L.L.C., 819 F.3d 758, 765 (5th Cir.
2016) (citation omitted); Manguno v. Prudential Prop.
& Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)
(“To determine whether jurisdiction is present for
removal, we consider the claims in the state court petition
as they existed at the time of removal.”) Because the
purpose of improper joinder inquiry is to determine a
procedural matter, the focus of this inquiry must be on the
joinder, not on the merits of the plaintiff's case.
Smallwood, 385 F.3d at 573 (5th Cir. 2004). The
Court does not consider “whether the plaintiff will
actually or even probably prevail on the merits of the claim,
” but only the “possibility that the plaintiff
might do so.” Burden v. General Dynamics
Corp., 60 F.3d 213, 216 (5th Cir. 1995).
cases, a complaint can meet the 12(b)(6) standard, but
“misstat[e] or omi[t] discrete facts that would
determine the propriety of joinder.”
Smallwood, 385 F.3d at 573. In such cases,
“hopefully few in number, ” a court may
“pierce the pleadings” and conduct a summary
inquiry. Id. In this inquiry, a court may consider
additional, summary-judgment type evidence, such as
affidavits and deposition testimony, to determine whether the
plaintiff “truly has a reasonable possibility of
recovery in state court.” Griggs v. State Farm
Lloyds, 181 F.3d 694, 700 (5th Cir. 1999) (citation
omitted); Gray ex rel. Rudd v. Beverly
Enterprises-Mississippi, Inc., 390 F.3d 400, 405 (5th
summary inquiry “is appropriate only to identify the
presence of discrete and undisputed facts that would preclude
plaintiff's recovery against the in-state defendant,
” courts should keep summary inquiry on a “tight
judicial tether;” “discovery by the parties
should be sharply tailored to the question at hand, and only
after a showing of its necessity.” Smallwood,
385 F.3d at 574. In keeping with the nature of improper
joinder analysis, summary inquiry should be “a simple
and quick exposure of the chances of the claim against the
in-state defendant alleged to be improperly joined.”
Id. Any contested issues of fact or ambiguous
questions of state law involved in the inquiry must be
resolved in favor of remand. AfricanMethodist
Episcopal Church v. Lucien, 756 F.3d 788, 793 (5th Cir.
2014) (citations omitted). If it is uncertain whether Ray
“will be able to prove ...