440 F. App'x 240
5th Cir.2011Background
- Wrongful death action arising from exposure to toxic fumes in a CTL Delta garage.
- Initial Louisiana state-court complaint named CTL, McLelland, and John Doe; Trinity later substituted for John Doe.
- CTL removed to federal court claiming McLelland was improperly joined and John Doe was disregarded for diversity.
- State court later allowed a Second Amended Petition naming CTL and McLelland; CTL again removed to federal court.
- District court held McLelland improperly joined and denied remand, applying equitable tolling to the one-year removal limit; interlocutory appeal granted.
- Court holds improper joinder established and the one-year removal limit inapplicable because case was removable on the initial pleading; remand denied and removal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Improper joinder of McLelland | Young plaintiffs claim McLelland had a personal duty under Canter. | McLelland had no personal duty to Young; claims insufficient. | McLelland improperly joined; no possibility of recovery against him. |
| Tedford tolling applicability | Tedford tolling should apply to extend removal. | Tedford tolling not applicable in this case. | Not addressed on the merits because § 1446(b) one-year limit inapplicable. |
| Timeliness of removal under § 1446(b) | Removal improper as it occurred after time barred by one-year limit. | Case removable on initial pleading; one-year limit does not apply. | Removal timely; one-year limit inapplicable because initial pleading was removable. |
Key Cases Cited
- Smallwood v. Ill. Cent. R. Co., 385 F.3d 568 (5th Cir. 2004) (test for improper joinder (no possibility of recovery against in-state defendant))
- Ford v. Elsbury, 32 F.3d 931 (5th Cir. 1994) (personal duty under Canter; supervisor knowledge potential liability)
- New York Life Insurance Co. v. Deshotel, 142 F.3d 873 (5th Cir. 1998) (one-year removal limit applies only to noninitially removable cases)
- Johnson v. Heublein Inc., 227 F.3d 236 (5th Cir. 2000) (removal when initially removable not governed by second paragraph)
- Castellanos-Contreras v. Decatur Hotels, LLC, 622 F.3d 393 (5th Cir. 2010) (scope of interloctory appeal under §1292(b) and materiality of the order)