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Cola v. The Dow Chemical Co.

United States District Court, S.D. Texas, Galveston Division

October 1, 2019




         Pending before me is Plaintiffs' Motion to Remand and Memorandum of Law in Support ("Motion to Remand"). See Dkt. 14. After reviewing the Motion to Remand, the response, the supplemental briefing supplied by both parties, and the applicable law, I RECOMMEND that the Motion to Remand be GRANTED.


         This is a wrongful death lawsuit arising from the death of John Cola ("Cola"), who is survived by his wife and four adult children ("Plaintiffs"). Originally filed in the 239th Judicial District Court of Brazoria County, Texas, the lawsuit alleges that a Railserve, Inc. ("Railserve") train driven by Leovardo Garcia Mata ("Mata") collided with a tractor-trailer driven by Cola, crushing the tractor-trailer and killing Cola. The accident occurred at a plant operated by The Dow Chemical Company ("Dow Chemical") near Freeport, Texas.

         In Plaintiffs' Third Amended Petition filed in state court, Plaintiffs allege that Cola's fatal injuries were avoidable but caused by: (i) the negligence of Dow Chemical and Railserve, both of whom failed to provide Cola with a safe work place and do what a reasonably prudent premises owner and railroad operator would have done under the same or similar circumstances; (ii) a defective REAct device (Railserve Emergency ACTion), which is a patented safety device manufactured and designed by BWI Eagle, Inc. ("BWI Eagle"); and (iii) the negligence of Mata.

         According to the Third Amended Petition, Dow Chemical implemented safety rules for Railserve to follow while operating railcars at the Dow Chemical plant. These safety rules required Railserve and its rail crew to stop all locomotive and railcars a certain distance from a blind crossing. A blind crossing is "a crossing that has no visibility to oncoming vehicular traffic 2 car lengths prior to entering a crossing." Dkt. 1-3 at 79. "Once Railserve's rail crew has confirmed that all traffic is clear at a blind crossing, Railserve is then allowed to move its locomotive and railcars safely across the blind crossing." Id. at 80. Plaintiffs specifically allege that Mata, along with Railserve and Dow Chemical, "failed to exercise reasonable care and take proper precautions to ensure the Chlorine Road railroad crossing would be clear of vehicular and pedestrian traffic so that the blind shove could proceed through the blind crossing safely." Id. at 84.

         BWI Eagle timely removed the lawsuit to the United States District Court for the Southern District of Texas (Galveston Division) on the basis of diversity jurisdiction. Plaintiffs are Texas citizens. Defendants Railserve, BWI Eagle, and Dow Chemical (collectively, the "Corporate Defendants") are all citizens of states other than Texas. Although Mata is a Texas citizen, the Corporate Defendants contend that Mata has been improperly joined in this lawsuit for the sole purpose of defeating diversity. Plaintiffs strongly disagree and have asked me to remand this case to the state district court in Brazoria County.


         Motions to remand are governed by 28 U.S.C. § 1447(c), which provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." A party may remove any civil action from state court to a federal district court that has original jurisdiction. See 28 U.S.C. § 1441(a). A district court may exercise removal jurisdiction over two types of cases: those that present a federal question and those in which there is diversity of citizenship. See 28 U.S.C. §§ 1331-1332. Under diversity jurisdiction, district courts have original jurisdiction over all civil actions that are between citizens of different states and involve an amount in controversy in excess of $75, 000, exclusive of interest and costs. See 28 U.S.C. § 1332(a). Removal is only proper in such a case, however, if there is "complete diversity." Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016). That means "if any plaintiff is a citizen of the same State as any defendant, then diversity jurisdiction does not exist." Id.

         The improper joinder doctrine[1] provides a narrow exception to the rule that parties must be completely diverse for federal courts to exercise subject matter jurisdiction. See McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005). "If a party has been improperly joined, ... the lack of complete diversity will not prevent a defendant from removing a case to federal court." Wolf v. Deutsche Bank Nat'L Tr. Co. for Am. Home Mortg. Inv. Tr. 2007-1, 745 Fed.Appx. 205, 207 (5th Cir. 2018). When a "plaintiff improperly joins a non-diverse defendant, ... the court may disregard the citizenship of that defendant, dismiss the non-diverse defendant from the case, and exercise subject matter jurisdiction over the remaining diverse defendant." Flagg, 819 F.3d at 136 (collecting cases). See also Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 183 (5th Cir. 2018) ("If a party is improperly joined, a court may disregard the party's citizenship for purposes of determining subject matter jurisdiction.").

         To demonstrate improper joinder, the removing defendant must demonstrate either: "(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, 385 F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). Actual fraud has not been asserted here. At issue, therefore, is the second situation. "To establish that a non-diverse defendant has been [improperly] joined to defeat diversity jurisdiction, the removing party must prove . . . that there is absolutely no possibility that the plaintiff will be able to establish a cause of action against the [in-state] defendant." Griggs v. State Farm Lloyds, 181 F.3d 694, 698 (5th Cir. 1999) (emphasis added). See also Smallwood, 385 F.3d at 573 ("[T]he test for fraudulent joinder is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state [or nondiverse] 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 [or nondiverse] defendant.").

         To determine whether a defendant is improperly joined under the second prong, the district "court may conduct 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." Smallwood, 385 F.3d at 573. See also Int'l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 208 (5th Cir. 2016) ("Our precedent is clear: A federal court must apply the federal pleading standard" in deciding the improper joinder issue). "Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder." Smallwood, 385 F.3d at 573. To pass muster under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp., v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft, 556 U.S. at 678.

         In deciding whether improper joinder has been established, a district court must "resolve all contested factual issues and ambiguities of state law in favor of the plaintiff [and remand]." Gasch v. Hartford Ace. & Indem. Co., 491 F.3d 278, 281 (5th Cir. 2007). The removing party bears the heavy burden of proving improper joinder. See Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011).

         LEGAL ...

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