3:14-cv-00690
M.D. La.Feb 13, 2015Background
- Plaintiffs Renetta and Rolon Glover sued Dollar General and landlord K & L in Louisiana state court for injuries from a slip-and-fall at a Dollar General store.
- Dollar General first removed the case to federal court on diversity grounds, claiming K & L was improperly joined; the court remanded, finding a reasonable possibility of liability against K & L.
- K & L moved for summary judgment in state court; the state court granted summary judgment and dismissed K & L.
- Dollar General filed a second notice of removal asserting diversity jurisdiction because K & L had been dismissed and alternatively arguing depositions showed K & L was improperly joined under La. R.S. 9:3221.
- Plaintiffs moved to remand, invoking the voluntary-involuntary rule and arguing removal was untimely; defendants countered with the fraudulent/improper joinder exception and timeliness arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case is removable after state-court dismissal of in-state defendant | Remand: dismissal resulted from opposed summary judgment (not voluntary) so voluntary-involuntary rule bars removal | Removal: dismissal creates diversity so federal court jurisdiction exists | Remand granted — dismissal was not a voluntary act by plaintiff; removal barred by voluntary-involuntary rule |
| Whether defendants may rely on deposition “other paper” under §1446(b)(3) to remove | Depositions do not change the fact that diversity is lacking; dismissal is not plaintiff-voluntary | Depositions show K & L had no responsibility/knowledge, so K & L was improperly joined and removal timely | Court assumed depositions could be “other paper” but found factual disputes remain; cannot show improper joinder |
| Applicability of the fraudulent/improper joinder exception | Plaintiffs: prior ruling that K & L may be liable stands; disputed facts must be resolved for plaintiffs | Defendants: evidence shows no possibility of recovery against K & L under state law (La. R.S. 9:3221) | Exception not applicable — defendants failed to meet heavy burden to show no possibility of recovery against K & L |
| Timeliness under 28 U.S.C. §1447(c) | Motion to remand is timely because it challenges subject-matter jurisdiction; §1447(c) 30-day rule inapplicable | Motion untimely under §1447(c) because removal based on procedural defect (voluntary-involuntary) | Motion to remand is not time-barred; §1447(c) does not apply to challenge to subject-matter jurisdiction |
Key Cases Cited
- Allen v. R & H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995) (removing party bears burden to show federal jurisdiction)
- Crockett v. R. J. Reynolds Tobacco Co., 436 F.3d 529 (5th Cir. 2006) (discussing voluntary-involuntary rule and improper joinder exception)
- Weems v. Louis Dreyfus Corp., 380 F.2d 545 (5th Cir. 1967) (articulating policy behind voluntary-involuntary rule)
- Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305 (5th Cir. 2002) (removal based on improper joinder requires heavy burden)
- Smallwood v. Illinois Cent. R. Co., 385 F.3d 568 (5th Cir. 2004) (test for improper joinder; focus on joinder not merits)
- McDonal v. Abbott Laboratories, 408 F.3d 177 (5th Cir. 2005) (clarifying prediction-of-recovery standard for improper joinder)
- Carriere v. Sears, Roebuck & Co., 893 F.2d 98 (5th Cir. 1990) (resolve factual disputes in favor of non-removing party)
- Addo v. Globe Life & Acc. Ins. Co., 230 F.3d 759 (5th Cir. 2000) (§1446(b)(3) 30-day rule for removal based on “other paper”)
- Travis v. Irby, 326 F.3d 644 (5th Cir. 2003) (improper joinder recognized where plaintiff cannot establish cause of action against in-state defendant)