United States District Court, S.D. Texas, Galveston Division
KATIE MARIE COLA, ET AL., Plaintiffs.
THE DOW CHEMICAL COMPANY, ET AL., Defendants.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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.
improper joinder doctrine 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
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
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.
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).