Tillman v. John Deere Construction and Forestry Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

PARISH TILLMAN CIVIL ACTION

VERSUS NO. 21-2331

JOHN DEERE CONSTRUCTION AND SECTION “B”(3)

FORESTRY COMPANY, ET AL.

ORDER AND REASONS

Before the Court are defendant’s notice of removal (Rec. Doc.

1), plaintiff’s motion to remand (Rec. Doc. 12) and defendant Deere

& Company, Inc.’s opposition (Rec. Doc. 13). For the following

reasons,

IT IS ORDERED that the motion to remand (Rec. Doc. 12) is

DENIED.

I. FACTS AND PROCEDURAL HISTORY

On June 6, 2020, plaintiff Parish Tillman and defendant Matt

Marin were operating a Gator Utility Task Vehicle (“Gator”) on

Francis Guidry, Jr.’s property with Guidry’s permission. See Rec.

Doc. 1-5 at 2-4. The Gator was owned by Guidry and manufactured by

Deere & Company, Inc. (“Deere”). See id. at 2-3. Plaintiff was

sitting in the front passenger seat while defendant Marin was

driving the Gator. Id. at 4. According to plaintiff and defendant

Marin, while Marin was driving the Gator, he lost control of the

vehicle without warning.1 Marin attempted to apply the brakes, but

1 Defendant Marin admitted to plaintiff’s allegations in Rec. Doc. 1-5, however

qualified his admission by stating that “Mr. Marin was driving the Gator UTV .

. . when suddenly, without warning, and while under power, the Gator UTV steering

this did not slow the Gator, and the vehicle then violently crashed

into a tree off a trail on the Guidry property.2 See Rec. Doc. 1-

5 at 4; Rec. Doc. 1-6 at 3. Plaintiff suffered severe injuries,

including injuries to his leg requiring multiple surgeries. See

Rec. Doc. 1-5 at 5.

Plaintiff filed suit on May 17, 2021 in the 21st District

Court for the Parish of Tangipahoa against John Deere Construction

and Forestry Company, individually and as a successor in interest

to John Deere Industrial Equipment Company f/k/a John Deere

Construction Equipment Company, and Matt Marin. Rec. Doc. 1-2 at

1. However, plaintiff incorrectly named defendant Deere, which was

corrected in the First Amended Petition for Damages to be Deere

and Company, Inc. See Rec. Doc. 1-2 at 1; Rec. Doc. 1-3 at 1; Rec.

Doc. 1-5 at 1.

At present and at the time of filing, plaintiff is domiciled

in Orleans Parish, Louisiana. Rec. Doc. 1-2 at 1. Defendant Marin

is domiciled in Jefferson Parish, Louisiana. Id. at 2; Rec. Doc.

1-6 at 2. Deere “is a corporation organized under the laws of

Delaware with its [principal] place of business located in the

state of Illinois.” Rec. Doc. 6 at 2.

system and wheel became locked in a fixed position and the braking system failed

causing the Gator UTV to violently collide with a tree.” Rec. Doc. 1-6 at 3.

2 These set of facts are denied by defendant Deere “for lack of sufficient

information to justify a belief therein,” but attested to by plaintiff and

defendant Marin. See Rec. Doc. 6 at 4-5.

In his petition, plaintiff made a claim against Deere under

the Louisiana Products Liability Act for failure to warn (Count I)

and design defect (Count II), and a claim for negligence (Count

III) against Matt Marin. See Rec. Doc. 1-2 at 5-14. Defendant Deere

answered the petition on August 9, 2021, correcting the plaintiff’s

incorrect naming of Deere and Company, Inc. as John Deere

Construction and Forestry Company. Rec. Doc. 1-3 at 1. Then on

December 7, 2021, plaintiff amended the petition to correctly name

defendant Deere. See Rec. Doc. 1-5 at 1. Defendant Marin answered

the original and first amended petition on December 8, 2021,

claiming an affirmative defense of “exoneration from and/or

limitation of liability under Louisiana R.S. § 9:2795.4, et seq.”

See Rec. Doc. 1-6 at 10. Louisiana Revised Statute Title 9, Section

2795.4 provides for limitation of liability for motorized off-road

vehicle activity sponsors, professionals, and other persons. See

LA. REV. STAT. § 9:2795.4.

After defendant Marin answered the amended petition asserting

immunity, defendant Deere filed a Notice of Removal on December

17, 2021. See Rec. Doc. 1 at 1. Then on January 13, 2022, plaintiff

filed a motion to remand. See Rec. Doc. 12 at 1. Defendant Deere

opposed plaintiff’s motion to remand on January 24, 2022. See Rec.

Doc. 13 at 1.

II. LAW AND ANALYSIS

A. Standard for Removal and Remand

A defendant may remove a civil action if the federal district

court would have had original jurisdiction over the case unless a

federal statute provides otherwise. 28 U.S.C. § 1441(a). However,

“[a] civil action otherwise removable solely on the basis of the

jurisdiction under section 1332(a) of this title may not be removed

if any of the parties in interest properly joined and served as

defendants is a citizen of the State in which such action is

brought.” 28 U.S.C. § 1441(b)(2). Pursuant to 28 U.S.C.

§ 1332(a)(1), federal district courts 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.” 28 U.S.C. § 1332(a)(1).

Diversity jurisdiction “requires complete diversity—if any

plaintiff is a citizen of the same State as any defendant, then

diversity jurisdiction does not exist.” Flagg v. Stryker Corp.,

819 F.3d 132, 136 (5th Cir. 2016).

28 U.S.C. § 1446(b) establishes the requirements for removal

of civil actions and states:

(1) The notice of removal of a civil action or proceeding

shall be filed within 30 days after the receipt by the

defendant, through service or otherwise, of a copy of

the initial pleading setting forth the claim for relief

upon which such action or proceeding is based, or within

30 days after the service of summons upon the defendant

if such initial pleading has then been filed in court

and is not required to be served on the defendant,

whichever period is shorter. . . .

(3) [I]f the case stated by the initial pleading is not

removable, a notice of removal may be filed within 30

days after receipt by the defendant, through service or

otherwise, of a copy of an amended pleading, motion,

order or other paper from which it may first be

ascertained that the case is one which is or has become

removable.

28 U.S.C. § 1446(b)(1), (b)(3).

The removing party bears the burden of showing that federal

jurisdiction exists and that removal was proper. Mumfrey v. CVS

Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013). In reviewing

motions to remand, the Court is guided by the fact that federal

courts are courts of limited jurisdiction and should strictly

construe a removal statute in favor of remand. Manguno v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.

2002). Any ambiguities should be construed against removal, and in

favor of remand. Id.

B. Improper Joinder

As stated, removal under § 1441 requires proper joinder, which

when jurisdiction is based on diversity of citizenship, includes

meeting all the requirements of § 1332. See 28 U.S.C. § 1441(b)(2);

Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir.

2004); see also Cumpian v. Alcoa World Alumina, L.L.C., 910 F.3d

216, 219-21 (5th Cir. 2018) (discussing and applying Smallwood).

An improper joinder inquiry “must be on the joinder, not the merits

of the plaintiff’s case.” Smallwood, 385 F.3d at 573. The Fifth

Circuit has established two ways to show 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. (internal quotations

omitted) (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir.

2003)). Under the second method of demonstrating improper joinder,

first “all disputed questions of fact and all ambiguities in the

controlling state law are resolved in favor of the nonremoving

party,” and second, the court must address “whether the defendant

has demonstrated that there is no possibility of recovery by the

plaintiff against an in-state defendant,” meaning “there is no

reasonable basis for the district court to predict that the

plaintiff might be able to recover against an in-state defendant.”

See Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir.

1990) (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 551

(5th Cir. 1981)); Smallwood, 385 F.3d at 573 (noting that the Fifth

Circuit is dispensing with all other phrasing of the required proof

and officially adopting the “no reasonable basis” standard).

To assess whether there is a reasonable basis for recovery

under state law, “[t]he 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. Or

where “a plaintiff has stated a claim, but has misstated or omitted

discrete facts that would determine the propriety of

joinder[,] . . . the district court may, in its discretion, pierce

the pleadings and conduct a summary inquiry.” Id. (citations

omitted).

Here, plaintiff has stated a claim against defendants, but

has omitted an essential fact as to the Gator UTV, which pertains

to whether immunity under LA. REV. STAT. § 9:2795.4 applies to

defendant Marin. LA. REV. STAT. § 9:2795.4(A)(3) establishes that a

motorized off-road vehicle within the statute means “any two- or

four-wheeled vehicle powered by a combustible engine or electric

motor and weighing eleven thousand five hundred pounds or less.”

LA. REV. STAT. § 9:2795.4(A)(3). Plaintiff failed to include the

weight of the Gator UTV in any of his pleadings; thus, this Court

pierces the pleadings to include the Declaration of Robert Loehr,

a Staff Engineer for Product Safety & Compliance, Utility Vehicles

at Deere & Company, Inc. See Rec. Doc. 1-9 at 1. The declaration

establishes the gross weight of the UTV involved in the dispute to

be 3,120 pounds. Id. at 2. Because plaintiff omitted an essential

fact in determining whether statutory immunity would apply to

defendant Marin, a summary inquiry is appropriate. See Smallwood,

385 F.3d at 573.

After piercing the pleadings and conducting a summary

inquiry, there is no reasonable basis for this Court to predict

that plaintiff might recover against defendant Marin. In his Answer

to Original and First Amended Petition for Damages and Affirmative

Defenses, defendant Marin raises the affirmative defense under LA.

REV. STAT. § 9:2795.4, which states in pertinent part:

(B)[A] motorized off-road vehicle activity sponsor, a

motorized off-road vehicle professional, or any other

person, which shall include individuals and all forms of

business entities, shall not be liable for an injury to

or the death of a participant resulting from the inherent

risks of a motorized off-road vehicle activity and,

except as provided in Subsection C of this Section, no

participant or participant's representative shall make

any claim against, maintain an action against, or

recover from, a motorized off-road vehicle activity

sponsor, a motorized off-road vehicle professional, or

any other person for injury, loss, damage, or death of

the participant resulting from any of the inherent risks

of motorized off-road vehicle activities.

See Rec. Doc. 1-6 at 10; LA. REV. STAT. § 9:2795.4.

The statute also provides several definitions beneficial to

this Court’s analysis. First, a sponsor is “an individual, group,

club, partnership, or corporation, whether or not the sponsor is

operating for profit or nonprofit, which sponsors, organizes, or

provides the facilities for a motorized off-road vehicle

activity . . . .” LA. REV. STAT. § 9:2795.4(A)(5). A professional

is someone engaged for compensation for instructing or renting a

motorized off-road vehicle, or “[r]enting equipment to a

participant in a motorized off-road vehicle activity.” See LA. REV.

STAT. § 9:2795.4(A)(7). A “[p]articipant means any person, whether

amateur or professional, who engages in a motorized off-road

vehicle activity, whether or not a fee is paid to participate in

the motorized off-road vehicle activity.” LA. REV. STAT.

§ 9:2795.4(A)(8). Finally, a motorized off-road vehicle activity

may include “[t]raining, teaching, or demonstrating activities

involving motorized off-road vehicles[,]” or, “[d]riving,

inspecting, or evaluating a motorized off-road vehicle belonging

to another[.]” LA. REV. STAT. § 9:2795.4(A)(4).

Plaintiff recognizes the limitation of liability provided by

LA. REV. STAT. § 9:2795.4(A), but argues the limitation does not

apply here because plaintiff never received any signage, written

warning, contract, or any sort of warning, as required by LA. REV.

STAT. § 9:2795.4(G). However, this argument is unavailing. See Rec.

Doc. 12-1 at 2. Subsection E of the statute states that, “Every

motorized off-road vehicle professional and every motorized off-

road vehicle activity sponsor shall post and maintain a sign

conspicuously located or provide a written warning which contains

the warning notice specified in Subsection F of this Section,” and

Subsection F contains the specific signage requirements. LA. REV.

STAT. § 9:2795.4(E)-(F) (emphasis added). Subsection G further

states, “Failure to comply with the requirements concerning

warning notices provided in this Section shall prevent a motorized

off-road vehicle activity sponsor or motorized off-road vehicle

professional from invoking the privilege of immunity provided by

this Section.” LA. REV. STAT. § 9:2795.4(G) (emphasis added).

Here, neither plaintiff nor defendant contends that defendant

Marin is a motorized off-road vehicle professional or activity

sponsor; therefore, defendant Marin would qualify as an “other

person” under the statute. Whereas LA. REV. STAT. § 9:2795.4(B)

provides for activity sponsors, professionals, and other persons,

Subsection (E) is silent on “other persons” and only directs the

signage requirement to “Every motorized off-road vehicle

professional and every motorized off-road vehicle activity

sponsor.” See LA. REV. STAT. § 9:2795.4; see also Gautreau v.

Washington, 95-1731, p. 4-5 (La. App. 1 Cir. 4/4/96); 672 So. 2d

262, 265-66 (finding that LA. REV. STAT. § 9:2795.3, a statute

concerning equine activity that is almost identical to LA. REV.

STAT. § 9:2795.4, only required professionals and sponsors to

provide warning signs to invoke the privilege of immunity and was

“silent as to placing this same requirement on any other person”).3

Therefore, as an “other person,” the signage and warning

requirements in section 9:2795.4(E) do not apply to defendant

Marin. See Gautreau, 672 So. 2d at 265-66. Because the warning

3 The limitation of liability of motorized off-road vehicle activities was

constructed from the limitation of liability of equine activity, which was first

enacted in 1999 under LA. REV. STAT. § 9:2795.1 (1999). The current limitation

of liability of equine activity is found under LA. REV. STAT. § 9:2795.3. With

almost identical language to limitation of liability of equine activity,

limitation of liability of motorized off-road vehicle activities was first

enacted in 2003 as LA. REV. STAT. § 9:2795.3 (2003), but moved to LA. REV. STAT.

§ 9:2795.4 in 2004. Due to the similarity of the language, and because there

seem to be no reported state or federal cases applying LA. REV. STAT. § 9:2795.4,

this Court looks to the limitation of liability of equine activity as stated in

LA. REV. STAT. § 9:2795.3 to interpret the terminology found in LA. REV. STAT.

§ 9:2795.4.

requirements do not apply, defendant Marin would qualify for

immunity under LA. REV. STAT. § 9:2795.4, and there is no reasonable

basis for this Court to predict that plaintiff might be able to

recover against defendant Marin. Therefore, joinder of defendant

Marin was improper.

C. Timeliness

Plaintiff argues that even if joinder was improper, defendant

did not timely remove the case to federal court. See Rec. Doc. 12-

1 at 3. Under 28 U.S.C. § 1446(b), a defendant must file notice of

removal within thirty days of receipt of the initial pleadings;

however, if the case was not removable in the initial pleading,

but later becomes removable through an amended pleading, motion,

or other paper, the notice of removable must be filed within thirty

days of receipt of the amended pleading, motion, or other paper.

See 28 U.S.C. § 1446(b); see also Jernigan v. Ashland Oil Inc.,

989 F.2d 812, 815 (5th Cir. 1993) (“Thirty days is measured from

receipt of whatever writing . . . constitutes first notice,”

including a co-defendant’s answer).

Removal to federal court based on diversity jurisdiction is

premature where the non-diverse defendant has not yet raised an

immunity defense in his answer where one may apply. See Byers v.

J.P. Morgan Chase Bank, No. 3:12-CV-770-O-BK, 2012 WL 5494927, at

*1-2 (N.D. Tex. May 15, 2012), report and recommendation adopted,

3:12-CV-770-O, 2012 WL 5499924 (N.D. Tex. Nov. 13, 2012); see also

Riojas v. Nationwide Gen. Ins. Co., No. 1:18-CV-1127-RP, 2019 WL

1615413, at *1 (W.D. Tex. Apr. 16, 2019) (citing Byers, 2012 WL

5494927, at *3) (reasoning that “courts in this circuit have

remanded actions when the diverse defendant based its improper-

joinder argument on a limitations defense that the nondiverse

defendant had not yet pleaded”). That is because “there is the

possibility that [defendant] may waive the defense and that

Plaintiff may prevail in her state claims against [defendant].”

Byers, 2012 WL 5494927, at *3; see also Soin v. JPMorgan Chase

Bank, No. H-12-2766, 2012 WL 6018746, at *2 (S.D. Tex. Nov. 29,

2012) (holding that where the non-diverse defendant has not

answered and raised the affirmative defense of the statute of

limitations, “there remains the possibility that [the defendant]

may waive the defense—intentionally or inadvertently—and thereby

allow Plaintiffs to prevail on their state law claims against the

non-diverse defendant”).

Here, plaintiff argues that defendant received first notice

on July 7, 2021, the date defendant acknowledged notice of the

lawsuit following service of the original petition on June 29,

2021. See Rec. Doc. 12-1 at 3. Plaintiff claims that the amended

petition alleged no new or different facts, and that “[a]ny facts

that Marin was allegedly protected by an immunity statute were

apparent in the original petition for damages,” and therefore,

defendant only had thirty days from July 7, 2021 to remove the

case. Id. However, while plaintiff is correct in saying that the

facts did not change between the original and amended petitions,

plaintiff fails to consider that defendant Marin did not raise the

affirmative defense of immunity under LA. REV. STAT. § 9:2795.4

until December 8, 2021. See Rec. Doc. 1-6 at 1.

If defendant Deere removed the case before defendant Marin

had the chance to raise affirmative defenses, removal would have

been premature, and the case could have been remanded. See Byers,

2012 WL 5494927, at *1-2. Until defendant Marin answered the

original and first amended petition, there remained the

possibility that defendant Marin may waive the defense, either

intentionally or inadvertently, which would allow plaintiff to

prevail in their state law claims against defendant Marin, the

non-diverse defendant. See Soin, 2012 WL 6018746, at *2. Thus,

defendant Marin’s answer on December 8, 2021, which raised the

§ 9:2795.4 defense, qualifies as first notice, defendant Deere’s

notice of removal on December 17, 2021 was within thirty days, and

defendant Deere’s removal was therefore timely. See Ashland Oil

Inc., 989 F.2d at 815 (finding removal proper when first notice

was based on a co-defendant’s answer rather than a complaint or

amended complaint).

New Orleans, Louisiana this 3rd day of May, 2022

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE