United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller United States District Judge.
before the court is a motion to remand filed by plaintiff
Rebecca Reid. Dkt. 9. After considering the motion, response,
related documents in the record, and the applicable law, the
court is of the opinion that the motion to remand should be
case stems from an incident occurring in a Jo-Ann store in
Katy, Texas, on July 6, 2015. Dkt. 1, Ex. C. Reid contends
that she slipped and fell “due to a very wet and
dangerous condition” while walking down an aisle in the
front center of the store. Id. She claims that the
fall caused a fully displaced patella fracture that has
required multiple surgeries. Id.
16, 2017, Reid filed premises liability and negligence claims
against the company that operated the store, defendant Jo-Ann
Stores, LLC (“Jo-Ann”) and defendant McDougal
Sewing Center, Inc. (“McDougal”), which the
complaint merely states “is a company operating in the
great state of Texas.” Id. Reid filed these
claims in the 281st Judicial District Court of Harris County,
Texas. Dkt. 1.
timely removed the case to this court. Id. Jo-Ann
contends that this court has jurisdiction under 28 U.S.C.
§ 1332. Id. It acknowledges that McDougal is
not a diverse defendant, but contends that McDougal was
improperly joined for the sole purpose of destroying
diversity. Id. If McDougal is not a proper
defendant, then complete diversity exists between the parties
and federal jurisdiction under § 1332 is proper.
August 18, 2017, Reid filed a motion to remand. Dkt. 9. Reid
contends that Jo-Ann and McDougal are co-tenants of the
property and that her petition states that both JoAnn and
McDougal had control of the property at the time Reid was
injured. Id. Reid asks that the court remand the
case back to state court and award her attorneys' fees
and costs associated with the removal, which Reid contends
was not objectively reasonable. Id.
responds that the complaint contains no specific facts
relating to McDougal and that Reid has no valid claim against
McDougal, which sub-leased 1.2% of the total space of the
premises and had no control over the premises. Dkt. 11.
Additionally, the area McDougal subleases is not near the
area where Reid fell. Id. Thus, Jo-Ann urges the
court deny the motion to remand and request for
attorneys' fees and instead award attorneys' fees to
motion is now ripe for disposition.
defendant may remove a civil action to federal court if that
court would have had original jurisdiction over the case. 28
U.S.C. § 1441(a). The burden of proving federal
jurisdiction rests on the removing party. De Aguilar v.
Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Jo-Ann
contends that the court has diversity jurisdiction pursuant
to 28 U.S.C. § 1332(a). For diversity jurisdiction, the
amount in controversy must exceed $75, 000 and complete
diversity must exist between all parties. 28 U.S.C. §
1332(a). Jo-Ann recognizes that McDougal is not a diverse
defendant, but it contends that McDougal is improperly
joined. Dkt. 1.
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.' ” Smallwood v. Ill. Cent. R.
Co., 385 F.3d 568, 573 (5th Cir. 2004) (en banc)
(quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th
Cir. 2003)). Jo-Ann does not assert actual fraud, so the
court considers only the second method. Therefore, to prevent
remand, Jo-Ann must demonstrate that “there is no
reasonable basis for the district court to predict that the
plaintiff might be able to recover against the in-state
are two ways for a court to predict whether a plaintiff might
be able to recover against an in-state defendant. First, the
court can conduct a Rule 12(b)(6)-type inquiry by reviewing
the complaint to determine if it states a claim against the
in-state defendant. Id. In making this
determination, the court applies the federal pleading
standard. Int'l Energy Ventures Mgmt., L.L.C. v.
United Energy Grp., Ltd., 818 F.3d 193, 202 (5th Cir.
2016). To survive a Rule 12(b)(6) motion to dismiss, a
plaintiff must plead “enough facts to state a claim to
relief that is plausible on its face.” Gines v.
D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955 (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, 678, 129 S.Ct. 1937
(2009). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. If the
court finds that the claim has been insufficiently pled, the
court should dismiss the improperly joined defendant without
prejudice for lack of jurisdiction. Lopez v. United Prop.
& Cas. Ins. Co., No. 3:16-CV-0089, 2016 WL 3671115,
at *5 (S.D. Tex. July 11, 2016) (Hanks, J.) (explaining that
dismissal without prejudice is appropriate because the court
lacks subject matter jurisdiction over the claim against the
non-diverse defendant and, therefore, cannot render a
decision on the merits).
a defendant could demonstrate that the plaintiff has
“misstated or omitted discrete facts that would
determine the propriety of joinder.”
Smallwood, 385 F.3d at 573-74. In that case, the
court can “pierce the pleadings” in a summary
inquiry to “identify the presence of discrete and
undisputed facts [in the ...