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Patlan v. Michelin North America, Inc.

United States District Court, W.D. Texas, San Antonio Division

May 28, 2019

SABRINA PATLAN, INDIVIDUALLY AND AS NEXT OF FRIEND OF S.N.P. AND C.R.P., MINORS, Plaintiffs,
v.
MICHELIN NORTH AMERICA, INC. AND JUAN GUAJARDO, Defendants.

          ORDER

          XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE.

         On this date, the Court considered Plaintiff's Motion to Remand (docket no. 3), and the responses and replies thereto.[1] After careful consideration, the Court grants the motion and remands this case.

         Background

         Defendant MNA removed this case on March 15, 2019, asserting improper joinder of a non-diverse defendant. MNA asserts there is complete diversity between Plaintiffs, all Texas citizens, and itself, the only properly joined party. MNA is a New York Corporation with its principal place of business in South Carolina.[2] MNA asserts that Defendant Juan Guajardo, a Texas citizen, is improperly joined, and thus his citizenship can be disregarded. MNA contends that its removal is timely because it only recently learned of the improper joinder in discovery.

         The Original Petition, filed July 25, 2018, asserts claims related to an automobile accident that resulted from an allegedly defectively designed and unreasonably dangerous “tire in question, ” which was sold on the “vehicle in question, ” in which Plaintiffs were injured. Plaintiffs allege that MNA was “negligent in the design, manufacture, sale and failure to warn the public about dangers related to the potential for tread loss from tires such as the tire in question, which negligence was a proximate cause of the events made the basis of this suit.” (Plaintiff's Original Petition, 5.3). Plaintiffs also allege that Juan Guajardo, a citizen of Texas, was “negligent in selling the ‘tire in question' and in his failure to recognize the defects in the ‘tire in question,' which said defects had manifested themselves to such a condition that Defendant should have recognized the defects and impending tread/belt separation, and informed or warned of the danger associated with the tire in question.” (Plaintiffs' Original Petition, 6.1).

         Ordinarily, a defendant desiring to remove a case must do so “within 30 days after the receipt by the defendant through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b). MNA removed on March 15, 2019, roughly seven months after Plaintiffs' Original Petition was filed, alleging that the original petition appeared to state a valid claim against Guajardo, but that newly discovered evidence indicated that Plaintiffs had no valid cause of action against Guajardo. This newly discovered evidence consists of Patlan's deposition testimony that she does not know the name of the person who sold her the vehicle in question and the Declaration of Juan Guajardo stating he did not sell the vehicle in question. Exhibit 1 (Patlan dep.) at 18:13-19:18; Exhibit J (Declaration of J. Guajardo).

         MNA asserts that only upon receipt of this newly discovered evidence was it determined that Plaintiffs have no valid cause of action against Guajardo, and thus the case became removable at that time. See 28 U.S.C. § 1446(b)(3) (if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt of “other paper” from which it may first be ascertained that the case is removable). Therefore, MNA alleges that Guajardo is improperly joined and can be disregarded for diversity jurisdiction purposes. Plaintiffs move to remand, asserting that Guajardo is not improperly joined and that diversity jurisdiction is lacking.

         Improper Joinder Standard

         There are two ways to establish improper joinder: (1) actual fraud in the pleading of jurisdictional facts; and (2) the inability of the plaintiff to establish a cause of action against the non-diverse party in state court. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005). This case involves the latter; therefore, the Court must determine whether Plaintiff can establish a cause of action against Guajardo.

         The burden of demonstrating improper joinder is placed on the party seeking removal. To meet it, a defendant must show that there is no reasonable basis to predict that the plaintiff might be able to recover against the in-state defendant. Smallwood v. Ill. Cent. R.R. Co., 385 F .3d 568, 573 (5th Cir. 2004) (en banc). To determine whether there is no reasonable basis to predict that the plaintiff might be able to recover against an in-state defendant, the Court evaluates whether the plaintiff could survive a hypothetical Rule 12(b)(6) challenge to the claim, looking initially to the allegations in the petition to determine whether, under state law, the petition states a claim against the in-state defendant. Larroquette v. Cardinal Health 200, Inc., 466 F.3d 373, 376 (5th Cir. 2006). Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder. Davidson v. Georgia-Pacific, LLC, 819 F.3d 758, 765 (5th Cir. 2016).

         Analysis

         Plaintiffs sue MNA and Guajardo for injuries resulting from an automobile accident. Plaintiffs allege that the accident was caused by the sudden and unexpected de-tread of the right tire (“tire in question”), which resulted in a loss of control of the vehicle and the subsequent accident. Plaintiffs allege that MNA was “negligent in the design, manufacture, sale and failure to warn the public about dangers related to the potential for tread loss from tires such as the tire in question, which negligence was a proximate cause of the events made the basis of this suit.” (Plaintiff's Original Petition, 5.3). Plaintiffs also allege that they purchased the vehicle from Defendant Juan Guajardo, and that Guajardo was “negligent in selling the ‘tire in question' and in his failure to recognize the defects in the ‘tire in question,' which said defects had manifested themselves to such a condition that Defendant should have recognized the defects and impending tread/belt separation, and informed or warned of the danger associated with the tire in question.” (Plaintiffs' Original Petition, 6.1).

         Although MNA contends that the Original Petition appears to state a valid negligence cause of action against Guajardo and thus the case was not originally removable, the Court finds that the improper joinder was apparent from the face of Plaintiffs' Original Petition, and thus MNA's removal many months later is untimely. Although Plaintiffs have not raised a timeliness objection, because Plaintiffs filed a timely motion to remand, this Court may remand on any ground, including the lack of timely removal. Schexnayder v. Entergy La., Inc., 394 F.3d 280, 284-285 (5th Cir. 2004).

         Although Plaintiffs' claim against Guajardo asserts a negligence cause of action, the claim constitutes a “products liability action, ” defined by Chapter 82 ...


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