United States District Court, S.D. Texas, Houston Division
Rosalind B. Kinney, individually and on Behalf of the Estate of Alvin M. Kinney And Brett K. Kinney, Individually Plaintiffs,
Brink's incorporated, Capital One National Association, and 5718 Westheimer Road Investors, LP, Defendants.
MEMORANDUM AND ORDER
STEPHEN WM SMITH UNITED STATES MAGISTRATES JUDGE
the Court is Plaintiffs' motion to remand. Dkt. 98. After
having considered the motions and arguments of counsel at a
hearing held July 17, 2017, the motion to remand is denied.
In addition, joinder of the non-diverse party, 5718
Westheimer Road Investors, LP (“5718 WRI”), is
denied under 28 U.S.C. § 1447(e).
Texas citizens, originally filed this suit on October 26,
2015 in Texas court. The original petition named Brink's
Incorporated (“Brink's”), a Delaware
corporation, and Capital One National Association
(“Capital One”), a Virginia corporation, as the
defendants and asserted claims against them for negligence,
premises liability, wrongful death and a survivor claim for
personal injuries. Dkt. 5-2 ¶¶ 13-29. On December
3, 2015, Brink's and Capital One removed the suit to
federal court on the basis of diversity. Dkt. 1.
December 23, 2015, Plaintiffs filed an amended complaint
adding a new defendant, 5718 WRI, allegedly a Delaware
limited partnership. Dkt. 12. Leave of court under Rule 15
was never sought nor granted to join this new defendant,
which (as plaintiff recently discovered) is actually a Texas
entity and therefore non-diverse. The amended complaint
alleges that 5718 WRI knew or should have known that a
dangerous condition existed and that it failed to take
reasonable precautions to address the dangerous condition.
Dkt. 12 ¶ 17. Plaintiffs assert premises liability as to
5718 WRI and Capital One, wrongful death as to Brink's,
and gross negligence as to all Defendants. Id.
March 8, 2017, the Court held a hearing on Brink's motion
for summary judgment. Shortly thereafter, Capital One and
5718WRI filed its respective motions for summary judgment.
Dkt. Nos. 76; 78. While those motions were pending,
Plaintiffs filed this motion to remand, asserting for the
first time that 5718 WRI was a resident of Texas, thereby
destroying diversity jurisdiction over this case. Defendants
concede that 5718 WRI is a limited partnership having Texas
citizenship, but oppose the motion to remand.
argue that because Texas residents are on both sides of the
case, complete diversity is destroyed and the Court must
remand the matter to Texas state court. Defendants respond
that remand is not proper because (1) 5718 WRI was
fraudulently joined and thus the Court continues to have
diversity jurisdiction over all defendants; or (2) in the
alternative, joinder of 5718 WRI should be denied as improper
under 28 U.S.C. § 1447(e), effectively dismissing that
party from the lawsuit. Dkt. 100.
district courts have diversity over “civil actions
where the matter in controversy exceeds the sum of $75, 000,
exclusive of interest and costs, and is between citizens of
different States.” 28 U.S.C. § 1332(a)(1).
Diversity jurisdiction requires complete diversity,
meaning no plaintiff may be of the same citizenship of any
defendant. See Int'l Energy Ventures Mgmt., L.L.C. v.
United Energy group, Ltd., 818 F.3d 193, 200 (5th Cir.
defendant is improperly joined if the moving party
establishes that (1) the plaintiff has stated a
claim against a diverse defendant that he fraudulently
alleges is non-diverse, or (2) the plaintiff has not
stated a claim against a defendant that he properly alleges
is non-diverse.” Int'l Energy Ventures
Mgmt., 818 F.3d at 199. The Fifth Circuit has explained
that a defendant seeking to defeat a motion to remand on the
basis of improper joinder must demonstrate “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 v. Illinois Cent. R.
Co., 385 F.3d 568, 573 (5th Cir. 2005).
determine whether the non-diverse defendant has been
improperly joined, the Court usually “conduct[s] a Rule
12(b)(6)-type analysis, looking initially at the allegations
of the complaint to determine whether the complaint states a
claim under state law against the in-state defendant.”
Id. The Fifth Circuit recently held that the federal
courts' determinations should be made on the basis of
federal pleading standards set out in Bell Atlantic Corp
v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Int'l Energy
Ventures, 818 F.3d at 202.
contention that the Court's inquiry should be similar to
that in ruling on a motion for summary judgment (Dkt. 100 at
3) is incorrect. Courts may look beyond the pleadings, but
only to identify “discrete and undisputed facts that
would preclude plaintiff's recovery against the in-state
defendant.” Smallwood, 385 F.3d at 573.
Anything beyond this limited inquiry would move the Court
outside of its jurisdictional bounds and result in a ruling
on the merits.
plaintiff's complaint against 5718 WRI survives the
fraudulent joinder test. Based on the allegations, it cannot
be said that plaintiff would have no possibility of recovery
against 5718 WRI for premises liability under Texas law. This
is not to say that the claim would survive a
properly-supported summary judgment motion, based upon a
fully developed factual record. But, on its ...