# Pitzen v. Woods

> District Court, E.D. Louisiana · May 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10189332

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CALLI PITZEN CIVIL ACTION

VERSUS NO. 23-641

DJUAN WOODS et al. SECTION: “G”(5)

ORDER AND REASONS
In this litigation, Plaintiff Calli Pitzen (“Plaintiff”) alleges that she is entitled to damages
for injuries sustained in two separate motor vehicle collisions.1 Before the Court is Plaintiff’s
Motion to Remand.2 Defendants Djuan Woods (“Woods”), Wright Transportation Inc. (“Wright
Transportation”), and Third Coast Insurance Company (“Third Coast”) (collectively, “Removing
Defendants”) oppose the motion.3 Considering the motion, the memoranda in support and in
opposition, the record, and the applicable law, the Court grants the motion and remands the matter
to the 29th Judicial District Court for the Parish of St. Charles, State of Louisiana, for further
proceedings.
I. Background

Plaintiff originally filed suit against Removing Defendants in the 29th Judicial District
Court for the Parish of St. Charles, State of Louisiana, on October 11, 2022, seeking damages for

1 See Rec. Doc. 1-1.
2 Rec. Doc. 6.
3 Rec. Doc. 8.
injuries sustained in a motor vehicle accident on October 19, 2021.4 Plaintiff alleges that Woods
crashed into Plaintiff’s vehicle with an 18-wheel tractor/trailer owned by Wright Transportation
and insured by Third Coast (the “Woods Incident”).5 On November 15, 2022, Plaintiff filed an
Amended Petition in which she reasserts her allegations against Removing Defendants and further

alleges that, on October 27, 2021, Defendant Cheryl Gambino (“Gambino”) crashed into Plaintiff’s
rental van with a vehicle insured by Defendant State Farm Mutual Automobile Insurance Company
(“State Farm”) (the “Gambino Incident”).6
On February 20, 2023, Removing Defendants removed the case to this Court.7 In the Notice
of Removal, Removing Defendants allege that this Court has diversity jurisdiction pursuant to 28
U.S.C. § 1332 for three reasons.8 First, Removing Defendants argue that Plaintiff’s claims related
to the Woods Incident are well in excess of $75,000 based on a $250,000 demand by Plaintiff on
January 24, 2023.9 Second, Removing Defendants argue that they are completely diverse from
Plaintiff.10 Third, Removing Defendants allege that Gambino and State Farm’s (collectively,
“Additional Defendants”) citizenships should be disregarded because Plaintiff improperly joined
them as defendants in this case “to defeat diversity jurisdiction.”11

Removing Defendants aver that Plaintiff’s claims against Additional Defendants are

4 Rec. Doc. 1-1 at 3–6.
5 Id. at 4.
6 Id. at 17–21.
7 Rec. Doc. 1.
8 Id.
9 Id. at 3–4; see also Rec. Doc. 1-2 at 4.
10 Rec. Doc. 1 at 4–7.
11 Id. at 6–9.
wholly unrelated to the Woods Incident and that Plaintiff named Gambino in the Amended Petition
to destroy diversity jurisdiction because Gambino and Plaintiff are citizens of Louisiana.12 On
March 22, 2023, Plaintiff filed the instant Motion to Remand.13 The motion was set for submission
on April 19, 2023. Pursuant to Local Rule 7.5, any opposition to a motion must be filed eight days

before the noticed submission date. Therefore, any opposition to the instant motion was due on
April 11, 2023. On April 14, 2023, Removing Defendants filed an untimely opposition to
Plaintiff’s Motion to Remand.14 However, the Court exercises its discretion and considers
Removing Defendants’ untimely opposition to the instant motion.
II. Parties’ Arguments

A. Plaintiff’s Arguments in Support of Motion to Remand

In support of the Motion to Remand, Plaintiff offers two arguments.15 First, Plaintiff
alleges that Removing Defendants must establish either that Plaintiff improperly joined Additional
Defendants or that Plaintiff lacks the ability to assert a cause of action against Additional
Defendants in state court.16 Specifically, Plaintiff avers that Removing Defendants bear the burden
of proving that Plaintiff has failed to state a claim against all non-diverse Defendants.17 Plaintiff

12 Id. at 7–9.
13 Rec. Doc. 6.
14 Rec. Doc. 8.
15 See Rec. Doc. 6-1.
16 Id. at 3 (citing Smallwood v. Ill. Cent. R.R. Co., Inc., 385 F.3d 568, 573–74 (5th Cir. 2004)).
17 Id.
asserts that Removing Defendants fail to meet this burden because they do not establish Plaintiff’s
inability to recover against Additional Defendants.18
Second, Plaintiff alleges that the claims asserted against Removing Defendants and
Additional Defendants “reflect the same factual or legal issues,” and therefore are substantially
similar to form a “community of interest.”19 Because of this substantial similarity, Plaintiff argues

that there exists a factual overlap between the cases to justify joinder, and “this Court cannot
conclude there is no reasonable basis for [Plaintiff’s] claims against [Additional Defendants].”20
Therefore, Plaintiff concludes that this lawsuit should be remanded.21
B. Removing Defendants’ Arguments in Opposition to Motion to Remand

In opposition to the instant motion, Removing Defendants argue that Plaintiff cannot
establish a cause of action against the non-diverse party, Gambino, and so Gambino’s citizenship
should be disregarded on the basis of the improper joinder.22 Removing Defendants assert that, as
alleged in the Amended Petition, Plaintiff rear-ended Gambino’s vehicle, “was issued a traffic
citation by the investigating police officer and therefore deemed to be at fault in [the Gambino
Incident].”23 Removing Defendants contend that Plaintiff suffered no injuries “related to” the
Gambino Incident, and even if she did suffer injuries, “under Louisiana law there is no solidary
liability between alleged tortfeasors in two separate accidents.”24 Removing Defendants further

18 Id.
19 Id. at 4.
20 Id.
21 Id.
22 Rec. Doc. 8 at 4.
23 Id. at 6 (citing Rec. Doc. 8-3).
24 Id. (citing Jarreau v. Hirschey, 657 So. 2d 1189, 1194 (La. App. 1 Cir. 1994); Hess v. Sports Publ’g Co.,
contend that, in a written settlement demand sent to them on January 24, 2023, Plaintiff’s counsel
admits that Plaintiff did not sustain any injuries in the Gambino Incident.25 Thus, Removing
Defendants conclude that “Plaintiff has effectively declared she sustained no viable personal injury
damages as a result of the [Gambino Incident] yet filed suit against Gambino and . . . State Farm.”26

Removing Defendants further argue that the Notice of Removal properly establishes
diversity jurisdiction by alleging: (1) an amount in controversy greater than $75,000; (2) the
diversity of citizenship between Plaintiff and Removing Defendants; and (3) “the inability of
Plaintiff to establish a viable cause of action against [Additional Defendants].”27 Removing
Defendants aver that the claims against Additional Defendants “clearly do not involve the same
factual and legal issues, nor are the alleged theories of negligence against each defendant
‘substantially similar.’”28 Thus, Removing Defendants conclude that the Motion to Remand should
be denied.29
III. Legal Standards
A. Removal Based on Diversity Jurisdiction

28 U.S.C. § 1332 provides that federal courts have original subject matter jurisdiction in
cases “where the matter in controversy exceeds the sum or value of $75,000” and the dispute is
“between citizens of different states.”30 To remove a case on diversity grounds, “the diverse

520 So. 2d 472, 474 (La. App. 4 Cir. 1988)).
25 Id. (citing Rec. Doc. 8-4).
26 Id. at 6–7.
27 Id. at 7
28 Id. 7–8.
29 Id. at 8.
30 28 U.S.C. § 1332(a)(1).
defendant must demonstrate that all of the prerequisites of diversity jurisdiction contained in 28
U.S.C. § 1332 are satisfied.”31 Normally, removal based upon diversity of citizenship is proper
only “if there is complete diversity between all named plaintiffs and all named defendants, and no
defendant is a citizen of the forum State.”32 A defendant may remove a state civil court action to
federal court if the federal court has original jurisdiction over the action.33 Remand to state court

is appropriate if the federal court lacks subject matter jurisdiction.34 A federal court has subject
matter jurisdiction over an action pursuant to 28 U.S.C. § 1332 “where the matter in controversy
exceeds the sum or value of $75,000” and the action “is between citizens of different states.”35
Any “doubts regarding whether removal jurisdiction is proper should be resolved against federal
jurisdiction.”36
B. Improper or “Fraudulent” 37 Joinder
In this case, the parties do not dispute that Gambino is a citizen of Louisiana, and that her
presence in this suit destroys diversity. Despite the presence of non-diverse defendants in this
lawsuit, Removing Defendants argue that removal is proper because Plaintiff improperly joined

Gambino in order to avoid federal jurisdiction.

31 Smallwood., 385 F.3d at 572.
32 Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84, 126 S. Ct. 606, 163 L. Ed. 2d 415 (2005).
33 28 U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002).
34 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)).
35 28 U.S.C. § 1332(a)(1).
36 Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir. 2014) (internal citation omitted).
37 Smallwood, 385 F.3d at 571 n.1 (“We adopt the term ‘improper joinder’ as being more consistent with the
statutory language than the term ‘fraudulent joinder,’ which has been used in the past. Although there is no substantive
difference between the two terms, ‘improper joinder’ is preferred.”)
“The fraudulent joinder doctrine ensures that the presence of an improperly joined, non-
diverse defendant does not defeat federal removal jurisdiction premised on diversity.”38 The party
asserting improper joinder “bears a heavy burden of proving that joinder of the in-state party was
improper.”39 The Fifth Circuit has long recognized two methods of improper joinder: (1) actual

fraud in the pleading of jurisdictional facts, and (2) the inability of the plaintiffs to plead a cause
of action against the non-diverse defendants in state court.40 In this case, Removing Defendants
allege that Gambino was improperly joined because Plaintiff cannot plead a cause of action against
her.
In Smallwood v. Illinois Central Railroad Company, the Fifth Circuit stated that “the test
for fraudulent 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.”41 District courts may assess whether a plaintiff has “a reasonable
basis of recovery under state law” in either of two ways.42 First, “[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.”43 Second, in rare cases,
if “a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine

38 Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009) (internal citations omitted).
39 Smallwood., 385 F.3d at 574.
40 Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006) (internal citations omitted).
41 Smallwood, 385 F.3d at 573.
42 Id.
43 Id.
the propriety of joinder” the district court “may, in its discretion, pierce the pleadings and conduct
a summary inquiry.”44
If a court decides to “pierce the pleadings” when assessing a claim of improper joinder, it
may “consider summary-judgment-type evidence in the record, but must also take into account all

unchallenged factual allegations, including those alleged in the complaint, in the light most
favorable to the plaintiff,” and resolve “[a]ny contested issues of fact and any ambiguities of state
law” in the plaintiff’s favor.45 However, a court does not assess “whether the plaintiff will actually
or even probably prevail on the merits of the claim,” but only determines whether there is “a
possibility that the plaintiff might do so.”46 In other words, where courts choose to pierce the
pleadings, the party asserting improper joinder must provide evidence that “negate[s] the
possibility” that the non-diverse party may be held liable.47
The Fifth Circuit has stated that district courts should look at summary-judgment-type
evidence at this stage of the proceedings only in those cases, “hopefully few in number, in which
a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the
propriety of joinder.”48 Even in such cases, the district court’s decision to pierce the pleadings and

conduct a summary inquiry is within in its discretion.49

44 Id.
45 Travis v. Irby, 326 F.3d 644, 648–49 (5th Cir. 2003).
46 Guillory v. PPG Indus., Inc., 434 F.3d 303, 308–09 (5th Cir. 2005).
47 Travis, 326 F.3d at 650.
48 Smallwood, 385 F.3d at 573.
49 Id.
IV. Analysis
Plaintiff argues that remand is appropriate because Removing Defendants cannot meet their
heavy burden of establishing that Additional Defendants were improperly joined. Removing
Defendants do not contest that the parties in this case lack complete diversity given that Plaintiff

and Gambino are Louisiana citizens. However, Removing Defendants assert that the Court has
diversity jurisdiction over this matter because Plaintiff cannot state a claim against Gambino.
Therefore, Removing Defendants assert that Gambino’s citizenship must be disregarded for
diversity purposes as an improperly joined party. The Fifth Circuit has long recognized two
methods of improper joinder: (1) actual fraud in the pleading of jurisdictional facts, and (2) the
inability of the plaintiffs to plead a cause of action against the non-diverse defendants in state
court.50 In this case, Removing Defendants explicitly allege improper joinder under only the
second method by arguing that Plaintiff fails to plead a cause of action against Gambino.
Accordingly, the Court shall “conduct a Rule 12(b)(6)-type analysis” by looking initially
at the allegations in the Amended Petition to determine whether Plaintiff states a claim against
Gambino under Louisiana law.51 In the Amended Petition, Plaintiff alleges that she was “on

Ormond Boulevard in St. Charles Parish” when Gambino’s vehicle “suddenly and without warning
slammed on her brakes and stopped suddenly, causing [Plaintiff], who was driving a rental van
she was not used to, to strike her vehicle.”52 Plaintiff further alleges that the collision “was the sole
fault of [] Gambino” and that, as result, Plaintiff “suffered significant bodily injuries, including
but not limited to head, neck, and back injuries requiring medical treatment and therapy, as well

50 Crockett, 436 F.3d at 532 (internal citations omitted).
51 Id.
52 Rec. Doc. 1-1 at 18.
as mental pain and anguish.”53 Finally, Plaintiff alleges that Gambino “slamm[ed] on her breaks
and stopp[ed] short when there was no emergency situation in front of her.”54
The burden on Removing Defendants to establish improper joinder is high—they must
show 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.”55 Taking the allegations above as true, the Court

cannot say that there is no reasonable basis for Plaintiff to recover against Gambino in a negligence
cause of action under Louisiana law.56
However, although Plaintiff has stated a claim against Gambino, Removing Defendants
ask the Court to pierce the pleadings and consider Plaintiff’s January 24, 2023 settlement demand
letter and a police report regarding the Gambino Incident. The Court “may, in its discretion, pierce
the pleadings and conduct a summary inquiry” if Plaintiff has “misstated or omitted discrete facts
necessary to determine the propriety of joinder.”57
Even if the Court were to exercise its discretion to pierce the pleadings, the summary-
judgment-type evidence cited by Removing Defendants fails to establish that there is no possibility

Plaintiff could recover against Gambino. As to the police report of the Gambino Incident,
Removing Defendants argue that the investigating officer issued Plaintiff a citation, thus deeming
Plaintiff to be at fault.58 However, courts have consistently held that “a traffic citation is only

53 Id. at 18–19.
54 Id. at 19.
55 Smallwood, 385 F.3d at 573.
56 “To establish a cause of action for tort in Louisiana, a plaintiff must show (1) a duty; (2) breach of that
duty; (3) cause in fact; and (4) actual damages.” Warren v. Geller, 924 F.Supp.2d 713, 725 (E.D. La. 2013) (Brown,
J.). The Court finds that the allegations against Gambino in the Amended Petition plausibly state these elements.
57 Smallwood, 385 F.3d at 573.
58 Rec. Doc. 8 at 6 (citing Rec. Doc. 8-3).
admissible if the defendant pled guilty to the citation.”59 Removing Defendants provide no
evidence that Plaintiff pled guilty to the citation. Regardless, the mere payment of a traffic citation
does not constitute an admission of fault.60 Accordingly, the police report does not establish that
Plaintiff has no possibility of recovery against Gambino.

Removing Defendants also argue that Plaintiff’s statement in the demand letter that she
sustained no physical injuries in the Gambino Incident constitutes an admission that Plaintiff
sustained no cognizable damage from the collision.61 In the demand letter, Plaintiff’s counsel
admits that Plaintiff did not suffer any physical injuries from the Gambino Incident, but alleges
that she suffered mental anguish, leading to suicidal thoughts and a brief hospitalization.62
Pursuant to Louisiana Civil Code article 2315, a tortfeasor is liable to the tort victim for all
damages he or she has caused, including mental pain, suffering, and loss of enjoyment of life.63
Accordingly, the demand letter does not foreclose the possibility that Plaintiff can recover damages
against Gambino for her mental anguish. Therefore, Removing Defendants have failed to meet
their burden to show improper joinder based on Plaintiff’s failure to state a claim against Gambino.

Finally, to the extent Removing Defendants argue that Gambino’s citizenship should be
disregarded because the Woods Incident and Gambino Incident were separate and unrelated
accidents, the Fifth Circuit has foreclosed this line of reasoning. Although some courts allow

59 Meyer v. Jencks, 513 F.Supp.3d 706, 708 (E.D. La. 2021) (quoting Robert v. Maurice, No. 18-11632, 2020
WL 4043097, at *6 (E.D. La. July 17, 2020); Bergeron v. Great W. Cas. Co., No. 14-13, 2015 WL 3505091, at *4
(E.D. La. June 3, 2015)).
60 See id. (quoting Bergeron, No. 14-13. 2015 WL 3505091, at *4).
61 Rec. Doc. 8 at 6–7.
62 Rec. Doc. 8-4 at 1–2.
63 See La. Civ. Code art. 2315 (“Every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it”); McGee v. A C And S, Inc., 2005-1036 (La. 7/10/06), 933 So. 2d 770, 773.
removal under such circumstances based on the doctrine of fraudulent misjoinder, in Williams v.
Homeland Insurance Company of New York, the Fifth Circuit declined to adopt fraudulent
misjoinder as a basis for ignoring the citizenship of a non-diverse party for diversity jurisdiction
purposes.64 As the Fifth Circuit explained, a defendant must “move to sever [] claims on misjoinder

grounds before removal, and either the state court grants the motion and the case becomes
removable or it denies the motion and the case remains non-removable.”65 Accordingly, Removing
Defendants fail to establish any basis for disregarding Gambino’s citizenship. Therefore, the
parties to this matter are not completely diverse and the Court must remand this matter to the 29th
Judicial District Court for the Parish of St. Charles, State of Louisiana for further proceedings.
V. Conclusion

Considering the foregoing reasons, Removing Defendants have failed to establish that
Plaintiff’s naming of Gambino in the Amended Petition constitutes improper joinder such that the
Court must disregard Gambino’s citizenship for diversity purposes. Therefore, because the parties
are not completely diverse, and Removing Defendants assert diversity as the sole basis for subject
matter jurisdiction, the Court must grant the instant motion.
Accordingly,

64 18 F.4th 806, 816–17 (5th Cir. 2021) (“[W]e will not usurp a state court’s ability decide whether parties
have been misjoined under a state court’s own procedural rules.”).
65 Id. at 817.
IT IS HEREBY ORDERED that Plaintiff Calli Pitzen’s Motion to Remand® is
GRANTED.
IT IS FURTHER ORDERED that the case is hereby remanded to the 29th Judicial
District Court for the Parish of St. Charles, State of Louisiana for further proceedings.
NEW ORLEANS, LOUISIANA, this 3rd day of May, 2023.

NANNETTE J Chet BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

6 Rec. Doc. 6.

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10189332. Public record. Not legal advice.