2018 WL 1737575

United States District Court, E.D. Louisiana.
Darnell HARRIS and Selita Harris
v.
U.S. XPRESS, INC., Ozaki Robinson, Leon Parker, Family Dollar Trucking, Inc., State Farm Mutual Automobile Insurance Company, ABC Insurance Company, and DEF Insurance Company
CIVIL ACTION NO. 17-17945
|
Signed 04/11/2018
Attorneys and Law Firms
Jason M. Baer, Rajan Pandit, Casey Czajka Dereus, Pandit Law Firm, LLC, New Orleans, LA, for Darnell Harris and Selita Harris.
Aimee Carriere Lacoste, Frederick A. Miller & Associates, Metairie, LA, Andrea Leigh Albert, Ryan Daniel O’Connor, Galloway, Johnson, Tompkins, Burr & Smith, Mandeville, LA, for U.S. Xpress, Inc., Ozaki Robinson, Leon Parker, Family Dollar Trucking, Inc., State Farm Mutual Automobile Insurance Company, ABC Insurance Company, and DEF Insurance Company.

SECTION A(2)
ORDER AND REASONS
JAY C. ZAINEY, JUDGE
*1 Before the Court is a Motion to Remand (Rec. Doc. 3) filed by Plaintiffs Darnell and Selita Harris. Defendants, Family Dollar Trucking, Inc., U.S. Xpress, Inc., and Ozaki Robinson (collectively referred to as “Removing Defendants”) oppose the motion. (Rec. Doc. 4). Leon Parker, Defendant in the main demand and crossclaimant against Family Dollar Trucking, Inc., U.S. Xpress, Inc., and Ozaki Robinson, supports the motion and has filed a response. (Rec. Doc. 5). Finally, Plaintiffs have filed a reply to the opposition. (Rec. Doc. 9). The motion, set for submission on February 21, 2018, is before the Court on the briefs without oral argument. Having considered the motion and memoranda of counsel, the record, and the applicable law, the Court finds that the Plaintiffs’ motion is GRANTED for the reasons set forth below.

I. Background
Plaintiffs seek remand of this action to the Civil District Court for the Parish of Orleans on the following grounds: (1) complete diversity of citizenship, as required by 28 U.S.C. § 1332(a), is lacking and (2) removal was procedurally defective. This matter was originally filed in state court on December 29, 2016. It was removed to this Court precisely a year later on December 29, 2017. The action arises out of a motor vehicle accident occurring on or about January 17, 2016. According to Plaintiffs’ state court Petition, a vehicle owned and operated by Leon Parker was traveling on I-10 near N. Claiborne Ave. with Plaintiffs Darnell and Selita Harris riding as guest passengers. A tractor owned by Defendant U.S. Xpress, Inc. with an attached trailer owned by Family Dollar Trucking, Inc., operated by Defendant Ozaki Robinson, was also traveling on I-10 near N. Claiborne Ave. Plaintiffs allege that Robinson negligently failed to yield and struck the vehicle occupied by Plaintiff, causing them injuries. As a result of the accident and injuries, Plaintiffs brought suit naming Ozaki Robinson, Leon Parker, U.S. Xpress, Inc., State Farm Mutual Automobile Insurance Company, ABC Insurance Company, and DEF Insurance Company as defendants. (Rec. Doc. 1-1).

Defendants Family Dollar Trucking, Inc., U.S. Xpress, Inc., and Ozaki Robinson removed this matter pursuant to 28 U.S.C. § 1332 and § 1441. Despite Plaintiffs and Defendant Parker both being Louisiana citizens, Removing Defendants allege that Parker was improperly joined. Plaintiffs and Parker both disagree and Plaintiffs move to remand the case back to state court contending that Removing Defendants have not met their burden as to complete diversity, and that the proper procedural requirements of removal were not met.

II. Legal Standard
Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending,” unless Congress provides otherwise. To respect a plaintiff’s initial choice of a state judicial forum and the federalism principles implicated by removal, courts strictly construe the removal statute. Riley v. Wal-Mart, La., No. 15-5729, 2015 WL 9268160, at *1 (E.D. La. Dec. 21, 2015) (Africk, J.); Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008); see also Robin Pipeline Co. v. New Medico Head Clinic Facility, No. 94-1450, 1995 WL 479719, at *1 (E.D. La. Aug. 14, 1995) (Clement, J.) (quoting York v. Horizon Fed. Sav. & Loan Ass’n, 712 F. Supp. 85, 87 (E.D. La. 1989) (Feldman, J.)).

*2 It is well-established that the party invoking the jurisdiction of a federal court has the burden of proving that the exercise of such jurisdiction is proper. St. Paul Reins. Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (citing Gaitor v. Peninsular & Occid. S.S. Co., 287 F.2d 252, 253–54 (5th Cir. 1961)). Any doubt regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction and in favor of remand. Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988)).

III. Law and Analysis
The Court agrees with Plaintiffs on both of their arguments in support of remand. Plaintiffs argue that Removing Defendants were untimely in filing their Notice of Removal and such a defect calls for remand. Second, Plaintiffs argue that remand is required as Defendant Parker was not improperly joined, and therefore, complete diversity does not exist.

Section 1332(a)(1) provides that “[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between … citizens of different States.” Since the early days of our Republic, § 1332 has been understood to demand complete diversity. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). Complete diversity “requires that all persons on one side of the controversy be citizens of different states than all persons on the other side.” McLaughlin v. Mississippi Power Co., 376 F.3d 344, 353 (5th Cir. 2004).

To remove a case based on diversity, the removing party must demonstrate that all of the prerequisites of diversity jurisdiction contained in 28 U.S.C. § 1332 are satisfied. Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 572 (5th Cir. 2004). Moreover, district courts are prohibited by statute from exercising jurisdiction over a suit in which a party, by assignment or otherwise, has been improperly or collusively joined to manufacture federal diversity jurisdiction. The Smallwood holding provides that “[s]ince the purpose of the improper joinder inquiry is to determine whether or not the in-state defendant was properly joined, the focus of the inquiry must be on the joinder, not the merits of the plaintiff’s case.” Id. at 573.

The Fifth Circuit has identified 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.” Id. (citing Travis v. Irby, 326 F.3d 644, 646–47 (5th Cir. 2003)). Only the second option applies to the instant matter, and the test for improper joinder is “whether the defendant has demonstrated 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.” Id.

Removing Defendants have failed to meet their burden showing that Defendant Parker, a non-diverse defendant, was improperly joined. Removing Defendants argue that Plaintiffs do not intend to recover damages from Parker, but added Parker only to defeat complete diversity. In support of their argument, Removing Defendants cite deposition testimony from Plaintiff Darnell Harris providing:
*3 Q: From sitting in the passenger seat, is there anything that Mr. Parker could have done differently to avoid the accident?
[Harris]: No
(Rec. Doc. 1-6, p. 3). Removing Defendants also cite the deposition testimony of Selita Harris wherein she states, “I didn’t see what happened with the accident because I was laying back with my eyes closed.” (Rec. Doc. 1-7, p. 3).1 Removing Defendants contend that this testimony provided by both Plaintiffs makes it “clear that Plaintiffs are not making a claim against Parker and have no reasonable possibility of recovering damages from Parker in state court.” (Rec. Doc. 1, p. 7, ¶ XXIV).

The Court disagrees. These statements do not equal total absolution for Parker from all fault for the accident. Moreover, the Court is hesitant to make a summary inquiry into questions of fault, as Removing Defendants argue is proper. The Fifth Circuit in Smallwood cautioned district courts against making summary inquiries. 385 F.3d at 573–75. Conducting a summary inquiry is appropriate only to identify the presence of discrete and undisputed facts that would preclude a plaintiff’s recovery against the non-diverse defendant. Id. Moreover, the Court must not tread too far beyond the limits of its jurisdiction. The Fifth Circuit warns:
Attempting to proceed beyond this summary process carries a heavy risk of moving the court beyond jurisdiction and into a resolution of the merits, as distinguished from an analysis of the court’s diversity jurisdiction by a simple and quick exposure of the chances of the claim against the in-state defendant alleged to be improperly joined. Indeed, the inability to make the requisite decision in a summary manner itself points to an inability of the removing party to carry its burden.
Id. at 574 (emphasis added).

Depending on Plaintiffs’ deposition testimony to argue that Parker is unequivocally zero percent at fault is a stretch. Removing Defendants are far from meeting their burden of showing that there is no reasonable basis for the Court to predict that Plaintiffs might be able to recover against Parker. As Louisiana is a comparative fault jurisdiction, even a verdict finding Parker one-percent at fault would result in recovery against a non-diverse defendant.

Like in Richoux v. CSR Ltd., the Court finds that Plaintiffs’ “deposition testimony … is scant evidence from which to predict that there is no reasonable basis that [plaintiffs] might be able to recover against the non-diverse defendants.” No. 08-931, 2008 WL 576242, *4 (E.D. La. Feb. 29, 2008). In that case, the plaintiff stated during deposition that he had no personal knowledge or information that the non-diverse defendants used asbestos-containing products that might have evidenced those defendants were at fault. Judge Berrigan found the deposition testimony insufficient to support an argument that there was no reasonable possibility that plaintiff could recover from the non-diverse defendants. She further reasoned that the deposition testimony was far from the only type of evidence showing fault that the plaintiff might be able to produce at trial. Id.

*4 The same is true here. The Court must resolve all ambiguities in favor of the Plaintiffs. Evidence at trial will not be limited to a few lines of Plaintiffs’ deposition testimony. Rather, evidence at trial will come from a variety of sources. The evidence put forth by Removing Defendants does not negate a possibility of liability on the part of Parker. Accordingly, Removing Defendants have failed to meet their heavy burden of showing that Parker was improperly joined.

Although the Court will not delve deeply into the procedural requirements, the Court notes that removal was untimely. Removing Defendants removed exactly one year from the date Plaintiffs filed their state court Petition. If a case is not removable based off of the initial pleading, a defendant may remove the case within 30 days of an amended pleading, motion, order, or other paper from when it may first be ascertained that the case is one which is removable. 28 U.S.C. § 1446(b)(3). Removing Defendants argue that their removal was timely because they removed within 30 days of discovering a “pattern of filing against various parties for avoiding diversity jurisdiction with regard to side swipe automobile accidents involving 18-wheel tractor-trailers where one or more claimant is represented by The King Firm.” (Rec. Doc. 4, p. 4). Discovery of an alleged pattern of avoiding complete diversity by Plaintiffs’ law firm is not the type of “other paper” that would trigger a 30-day window to remove as provided by § 1446(b)(3). Accordingly, Removing Defendants failed to timely meet the procedural requirements of removal. Thus, the Court grants Plaintiffs’ motion.

Accordingly;

IT IS ORDERED that Plaintiffs’ Motion to Remand (Rec. Doc. 3) is GRANTED and the above-captioned matter be and is hereby remanded to the Civil District Court for the Parish of Orleans, State of Louisiana.

All Citations
Slip Copy, 2018 WL 1737575

Footnotes

1
In further support of their argument that joinder was improper, Removing Defendants note that “based on information received, Plaintiffs have not sought discovery directly from Parker or taken steps to prosecute a claim against Parker.” (Rec. Doc. 4, p. 2). Removing Defendants also point out that Plaintiffs failed to file an opposition to a motion for summary judgment filed by Parker’s insurer seeking to dismiss Parker from the lawsuit. Id. The Court finds these additional arguments to be speculative and these arguments do not sufficiently aid Removing Defendants in meeting their burden of proof.

2018 WL 1856195

United States District Court, N.D. Alabama, Southern Division.
DONATHAN JACKS, Plaintiff,
v.
CEDRIC DEJANERO CHANCE, Defendant.
Case No.: 2:18-cv-00188-UJB-RDP
|
04/18/2018
R. DAVID PROCTOR, UNITED STATES DISTRICT JUDGE

MEMORANDUM OPINION
*1 This case is before the court on Defendant’s Motion to Dismiss, or in the Alternative, Stay. (Doc. # 5). In this motion, Defendant requests that the court dismiss this action without prejudice or stay it pending resolution of a parallel state-court action, pursuant to the Colorado River Doctrine. The parties have fully briefed the motion (Docs. # 7, 8), and it is under submission. After careful review, Defendant’s motion is due to be denied.

I. Background
This motion relates to two parallel lawsuits filed, one here and the other in state court. In September 2016, Plaintiff’s vehicle was struck by a tractor trailer operated by Defendant. (Doc. # 1 at ¶¶ 9-12). James Benz was a passenger in Plaintiff’s vehicle. (Doc. # 7-1 at 3). In November 2017, Benz filed suit against Defendant in the Circuit Court for Shelby County, Alabama. (Id. at 1-6). Benz raised claims of negligence, wantonness, underinsured/uninsured motorist coverage, and negligent entrustment, hiring, training, and supervision in his state-court complaint. (Id. at 3-5).

In February 2018, Plaintiff filed this action against Defendant in this court. (Doc. # 1). Plaintiff has brought his action in this court asserting that the court has diversity jurisdiction because (1) he is a resident of Alabama, and Defendant is a resident of Georgia, and (2) the amount in dispute exceeds $75,000. (Id. at ¶¶ 1-2, 7). In his Complaint, Plaintiff raises claims of negligence and wantonness. (Id. at ¶¶ 15-20).

II. The Colorado River Doctrine
Under the Colorado River Doctrine of “exceptional circumstances,” a federal district court may “dismiss or stay an action when there is an ongoing parallel action in state court.” Moorer v. Demopolis Waterworks & Sewer Bd., 374 F.3d 994, 997 (11th Cir. 2004) (quoting LaDuke v. Burlington N. R.R. Co., 879 F.2d 1556, 1558 (7th Cir. 1989)). The principles of that Doctrine “rest on considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Ambrosia Coal & Constr. Co. v. Pages Morales, 368 F.3d 1320, 1328 (11th Cir. 2004) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).

“Generally, as between state and federal courts, the rule is that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Colorado River, 424 U.S. at 817 (internal quotation omitted). “Federal courts have a ‘virtually unflagging obligation…to exercise the jurisdiction given them.’ ” Ambrosia Coal, 368 F.3d at 1328 (quoting Colorado River, 424 U.S. at 817). However, a federal court may defer to a parallel state proceeding under “limited” and “exceptional” circumstances. Moorer, 374 F.3d at 997 (citing Colorado River, 424 U.S. at 817-18).

There is no bright-line test for determining when an existing, concurrent state case warrants federal court abstention in a parallel federal case. Ambrosia Coal, 368 F.3d at 1328. Nonetheless, the Eleventh Circuit has indicated that a district court may consider the following factors in determining whether exceptional circumstances exist:
*2 (1) the order in which the courts assumed jurisdiction over property; (2) the relative inconvenience of the fora; (3) the order in which jurisdiction was obtained and the relative progress of the two actions; (4) the desire to avoid piecemeal litigation; (5) whether federal law provides the rule of decision; and (6) whether the state court will adequately protect the rights of all parties.
Moorer 374 F.3d at 997 (quoting TranSouth Fin. Corp. v. Bell, 149 F.3d 1292, 1294-95 (11th Cir. 1998)). Of course, “[t]he decision whether to dismiss [or stay] ‘does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.’ ” Id. (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Co., 460 U.S. 1, 16 (1983)). The weight attributed to each factor varies on a case-by-case basis, and depends on the particularities of that case. Id. A single factor alone can be the sole reason for abstention. Id. After performing the analysis, if a federal court determines the Colorado River Doctrine applies and that it should defer to a parallel state-court proceeding, the court must stay, and not dismiss, the federal case. Moorer, 374 F.3d at 998 (citations omitted). Thus, here, the court asks two questions: (1) whether there is a state-court proceeding that is sufficiently parallel to this action; and (2) if so, applying the factors discussed above, do exceptional circumstances exist that counsel toward staying this action.

III. Analysis
In order for the Colorado River Doctrine to apply, there must be a state case parallel to the federal one. Jackson-Platts v. Gen. Elec. Capital Corp., 727 F.3d 1127, 1140 (11th Cir. 2013) (citation omitted). The federal and state proceedings do not have to contain the same parties, issues, and requests for relief to be identical. Ambrosia Coal, 368 F.3d at 1329-30. “The crucial question is whether the ‘similarity between the two cases is sufficient to justify the conclusion that the state court litigation will be an adequate vehicle for the complete and prompt resolution of the issue between the parties.’ ” Sini v. Citibank, N.A., 990 F. Supp. 2d 1370, 1376 (S.D. Fla. 2014) (quoting Brown v. Blue Cross & Blue Shield of Fla., Inc., No. 11-80390-CIV, 2011 WL 11532078, at *8 (S.D. Fla. Aug. 8, 2011)). A district court may appropriately undertake the Colorado River analysis when the “federal and state proceedings involve substantially the same parties and substantially the same issues.” Ambrosia Coal, 368 F.3d at 1330. Here, Plaintiff’s action and Benz’s action arise from the same accident, the actions have been brought against the same defendant, and the actions both raise negligence and wantonness claims. Thus, the court readily concludes that the two actions involve substantially the same parties and issues, making them parallel actions under the Colorado River Doctrine.

Having said that, the court finds that none of the Colorado River factors compel abstention. Defendant concedes that the first, second, fifth, and sixth factors discussed in Moorer do not weigh in favor of abstention. (Doc. # 5 at 5, 8-9). The only factors relied upon by Defendant to justify abstention are (1) the state court’s prior acquisition of jurisdiction and (2) the prejudice Defendant would face from piecemeal litigation. (Id. at 6-8). In response, Plaintiff argues that the sixth factor (i.e., the state court’s ability to protect the rights of all parties) weighs against abstention because he likely will need to obtain discovery materials from Georgia and this court may have subpoena power over federal agencies that the state court lacks. (Doc. # 7 at 6). The court reviews the three disputed Colorado River factors below, in turn.

A. The Order of Jurisdiction and the Progress of the State Case Do Not JustifyAbstention
*3 In applying the third factor, the court considers which forum acquired jurisdiction first. “The Supreme Court [has] clarified that, despite somewhat misleading phrasing in Colorado River, this factors ‘should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions.’ ” Ambrosia Coal, 368 F.3d at 1333 (quoting Moses H. Cone, 460 U.S. at 21). “This factor, as with the other Colorado River factors, is to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand.” Moses H. Cone, 460 U.S. at 21. In Nobel Insurance Group v. First National Bank of Brundidge, 50 F. Supp. 2d 1215 (M.D. Ala. 1999), the Middle District of Alabama found that this factor favored abstention “to a small degree” where discovery had commenced in the earlier-filed state-court action, but was still in its initial stages. Id. at 1218.

Here, as in Nobel Insurance Group, this factor weighs slightly, but not significantly, in Defendant’s favor. The parties’ submissions to the court show that Benz has submitted interrogatories and requests for production to Defendant in the state-court action, Defendant has responded to those interrogatories and requests for production, and Defendant has submitted interrogatories and requests for production to Benz. (Docs. # 7-1 at 7-15; 7-2 at 4-12; 8 at 8-25). These discovery steps are initial steps, and the court finds from the record before it that discovery has not progressed so far as to warrant abstention. See Nobel Ins. Grp., 50 F. Supp. 2d at 1218.

B. The Potential for Piecemeal Litigation Does Not Justify Abstention
The fourth factor calls for the court to examine the potential for piecemeal litigation. But the question is not simply whether denial of a stay could lead to piecemeal litigation. “Run of the mill piecemeal litigation will not do: this factor ‘does not favor abstention unless the circumstances enveloping those cases will likely lead to piecemeal litigation that is abnormally excessive or deleterious.’ ” Jackson-Platts, 727 F.3d at 1142 (quoting Ambrosia Coal, 368 F.3d at 1333). Nor does this factor favor abstention when litigation is “inevitably piecemeal.” Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Edward D. Stone, Jr. & Assocs., 743 F.2d 1519, 1525 (11th Cir. 1984)). “Concern with piecemeal litigation should focus on the implications and practical effects of litigating suits deriving from the same transaction in two separate fora, not on the mere possibility of duplication.” Gonzalez v. Cruz, 926 F.2d 1, 4 (1st Cir. 1991). While the court agrees with Defendant that there will inevitably be some overlap between Plaintiff’s action and Benz’s action, the court does not think that the overlap will be “abnormally excessive or deleterious.” Jackson-Platts, 727 F.3d at 1142.

At their core, both Plaintiff’s action and Benz’s action present straightforward issues of state law. As such, there is a small likelihood of harsh, contradictory, or unfair consequences. Burns v. Watler, 931 F.2d 140, 146-47 (1st Cir. 1991) (vacating a district court’s Colorado River stay of an action arising from an automobile accident where the district court solely relied on the piecemeal litigation factor to justify abstention). Moreover, at least one other court has concluded that concerns about piecemeal litigation do not justify abstention in automobile accident cases such as this one. See Morris v. SWDI, LLC, 872 F. Supp. 2d 499, 509 (E.D. La. 2012) (concluding that the piecemeal litigation factor did not weigh in favor of abstention because no res or property was at issue in the case, and the defendant failed to show that the duplicative litigation constituted piecemeal litigation). For these reasons, the court finds that this Colorado River factor is neutral.

C. The Court Perceives No Adequacy Issues with Either Fora
*4 This final factor requires the court to consider the adequacy of the respective fora to protect the parties’ rights. Plaintiff has offered no legal authority to support his concerns about the adequacy of the state forum proposed by Defendant. (See Doc. # 7 at 6-7). After reviewing Plaintiff’s argument, the court agrees with Defendant that this factor is neutral.

IV. Conclusion
For the reasons explained above, while one Colorado River factor weighs slightly in favor of abstention, Defendant’s motion fails to present any exceptional circumstances which would justify abstention. Therefore, Defendant’s motion to dismiss or stay this action (Doc. # 5) is due to be denied. An Order consistent with this Memorandum Opinion will be entered.

DONE and ORDERED this April 18, 2018.

R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
7
All Citations
Slip Copy, 2018 WL 1856195