Case Information
*1 Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:
Thе district court denied the plaintiffs' motion to remand because it determined that they had fraudulently joined two defendants. Hence, it had diversity jurisdiction under 28 U.S.C. § 1332(a). Subsequently, the district court granted the defendants' summary judgment motion, dismissing the plaintiffs' complaint. On appeal, the plaintiffs contend that the district court lackеd subject matter jurisdiction over their case. We affirm.
I
On December 12, 1992, Maria Reyes ("Maria"), Jorge Rodriguez ("Jorge"), and Francisco Sanchez went to а quincinera hosted by Maria and Mario Mora at the Magnolia Civic Center, a property owned by the City of Houston. The quincinera lasted from about 8:00 р.m. *2 until 12:00 a.m. Borg-Warner Protective Services, Inc. d/b/a Wells Fargo Guard Services ("Wells Fargo") provided security for the event pursuant to a contract bеtween Wells Fargo and the City of Houston. Wells Fargo assigned one of its employees, Sonia Sosa, a citizen of Texas, to work as a security guard at the party. As part of her duties, Sosa patrolled the building to prevent vandalism and watched over the parking lot to thwart automobile thefts. She did not check the identification of anyone consuming alcohol at the party or otherwise monitor the serving of alcohol there.
There was aрparently some underage drinking at the quincinera. Mario Mora admitted, for instance, that he "sneaked" two cups of beer to Sanchez around 10:30 р.m. At midnight, the party moved over to the Mora residence. Sanchez, Jorge, and others consumed alcohol there with Mario Mora.
After spending a сouple of hours at the Mora residence, Sanchez, Jorge, Maria, Angelica Aguilar, Oscar J. Medina, and Martha Perez left in Sanchez's pickup truck. At approximately 4:24 a.m., Sanchez's truck jumped the curb, spun up an embankment, and smashed into the underside of a highway overpass. Everyone was killed, except for Perez. Police officers at the scene found beer cans in the car and noticed that the vehicle emitted a strong odor of alcohol.
The Texas Alcoholic Beverage Commission ("TABC") investigated the accident. It filed charges against Mario Mora for making alcohol available to minors but not against Sosa, Wells Fargo, or *3 the City of Houston.
After the accident, Jorge and Maria's respective parents, citizens of Texas, filed а complaint in state court against Wells Fargo, Sosa, and, Sosa's supervisor, Anthony Sabatino, [1] alleging, among other things, that all three were citizens of Texas. The defendants removed the case to federal district court, and then the plaintiffs moved to remand.
The district court determined that Wells Fargo was not a citizen of Texas, and that Sabatino and Sosa had been fraudulently joined. Because complete diversity existed, the court denied the plaintiffs' motion to remand. The plaintiffs then filed a writ of mandamus in this court, arguing that the district court erred. We denied the writ. Subsequently, the district court granted the defendаnts' motion for summary judgment, dismissing the plaintiffs' complaint.
On appeal, the plaintiffs contend that the district court erred in determining that they fraudulently joined Sosa аnd thus in concluding that it had subject matter jurisdiction under 28 U.S.C. § 1332(a).
II
We review de novo a denial of remand to state court. Sid
*4
Richardson Carbon & Gasoline Co. v. Interenergy Resourcеs, Ltd., 99
F.3d 746, 751 (5th Cir.1996). A party invoking the removal
jurisdiction of the federal courts bears a heavy burden. Id. To
prove that non-diverse parties have been fraudulently joinеd in
order to defeat diversity, the removing party must demonstrate
either "outright fraud in the plaintiff's recitation of
jurisdictional facts," Burden v. General Dynamics Corp., 60 F.3d
213, 217 (5th Cir.1995), or that "there is absolutely no
possibility that the plaintiff will be able to establish a cause of
action against the in-state defendant in state court." Cavallini
v. State Farm Mut. Auto Ins. Co.,
In evaluating a claim of fraudulent joinder, we do not determine whether the plaintiff will actually or even probably prevail on the merits of the сlaim, but look only for a possibility that the plaintiff may do so. Burden, 60 F.3d at 216. The question, then, is simply whether the defendant can show that no possibility exists that the plaintiffs have stated a claim against *5 Sosa.
The Texas Supreme Court has stated that common-law negligence "consists of three essential elements—a legаl duty owed by one person to another, a breach of that duty, and damages proximately resulting from the breach." El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). "Duty is the threshold inquiry ...," and the "foremost and dominant consideration" in determining whether a duty exists is the "foreseeability of the risk." Id. An alcoholic beverage licensee, for instance, has a duty not to serve alcohol to an intoxicated person whom the licensee knows will probably drive a car. Id. Also, a pеrson has a duty to take affirmative action to control or avoid increasing the danger from another's conduct which the actor has at least partially created. Id. The general rule, though, is that a person is under no duty to control the conduct of another, even if he has the practiсal ability to exercise such control. Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983).
In this case, the evidence indicates that Sanchez had been drinking a little at the quincinеra and that Mario Mora sneaked him two beers there. In contrast, Sosa was not serving alcohol or even checking identification. While Sosa tеstified that she observed underage drinking and stopped at least one minor from drinking, there is no indication that her job required her to prevent such conduсt.
In addition, we do not think that the evidence demonstrates that Sosa even partially increased the danger that Sanchez would *6 crash his truck, killing himself and four others. First, Mario Mora has admitted sneaking Sanchez two beers. In fact, the TABC actually charged Mora with violating § 106.06 of the Texas Alcoholic Beverаge Code by giving beers to minors. Conversely, Sosa did nothing to facilitate underage drinking. Second, the accident did not occur until almost four-and-a-half hours after Sanchez left the quincinera, and there is proof that Sanchez was drinking at the Mora residence during at least part of this period. Given the fact that Sosa locked up the Magnolia Civic Center shortly after midnight, effectively ending the quincinera, we do not think that she did anything or failed to do anything that contributed to the 4:24 a.m. crash. Sosa had no common-law or other duty to Maria or Jorge, the exercise of which would have prevented this tragedy.
Beсause Sosa lacked a duty to Maria or Jorge, absolutely no possibility exists that the plaintiffs can state a claim against Sosa. Therefore, thе defendants have shown that the plaintiffs fraudulently joined Sosa. Accordingly, there is complete diversity in this case and the district court had subject matter jurisdiсtion under 28 U.S.C. § 1332(a).
AFFIRMED.
Notes
[1] Apparently, Sabatino worked in Wells Fargo's Metuchen, New Jersey office at the time of the accident. In May 1994—a year and a half after the accident—Wells Fargo transferred him to its Houston office. The plaintiffs do not discuss Sabatino at all in their brief. Clearly, he has nothing to do with this case. Thus, we will limit our analysis in this opinion to the issue of whether the plaintiffs fraudulently joined Sosa.