The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANGEL CLINE
CIVIL ACTION
VERSUS NO: 23-856
BP PRODUCTS NORTH AMERICA, SECTION: T (1)
INC., et al.
ORDER
Before the Court is the Motion to Remand filed by plaintiff, Angel Cline.1 Defendants BP
Products North America, Inc., BP American Production Company (collectively, “BP”), and
Atlantic Richfield Company (“Atlantic Richfield”) (BP and Atlantic Richfield are referred to
herein as “Defendants”) oppose the motion.2 Plaintiff has filed a Reply Memorandum,3 and the
Motion has been submitted to the Court. For the following reasons, the Motion is GRANTED.
BACKGROUND
During the scope of his employment with Tuboscope from approximately 1997 through
2011, William Cline worked at multiple pipe yards, including Tuboscope’s First Avenue yard in
Harvey, Tuboscope’s yard in Houma, the Brown & Root yard in Belle Chasse, and the OFS, Inc.
(“OFS”) yard in Harvey.4 In the oil production process, mineral deposits, or scale, build up in oil
well pipes, causing obstruction and decreased production.5 As a result, pipes with significant scale
must be removed and replaced.6 The removed pipes are separated and sent to pipe yards “to be
1 R. Doc. 22.
2 R. Doc. 23.
3 R. Doc. 30.
4 R. Doc. 22-1 at 4.
5 Id. at 2-3.
6 Id.
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cleaned to remove the scale and inspected to see if they are fit to return to service in another well.”7
The structure of chemicals in pipe scale facilitates the binding of radium radionuclides, a
type of naturally occurring radioactive material (“NORM”).8 The binding of this material “causes
the pipe scale to become highly, dangerously radioactive.”9 The pipe cleaning process, which
includes the grinding of scale out of and off of the joints of the pipe, creates “a tremendous amount
of dust,” which may contaminate the yard and expose workers who inhale and ingest the dust to
unsafe levels of radiation.10 Though radiation levels are normally measured using a Geiger counter,
the device only detects gamma rays and is not appropriate to detect the alpha and beta particles
emitted by the radium in oil pipe scale.11 The only accurate method of determining the presence
and level of radium in this situation is to send a sample to a lab for chemical testing.12
Angel Cline (“Plaintiff”) filed a wrongful death and survival action against numerous
defendants for her deceased husband, William Cline’s, alleged exposure to oil field radiation while
working at various pipe yards.13 Plaintiff alleges that this exposure led to Mr. Cline’s cancer
diagnosis and subsequent death.14 Plaintiff’s state court petition, initially filed in the 24th Judicial
District Court of Jefferson Parish, named several noncitizen oil companies as defendants, as well
as OFS, a Louisiana pipe inspection and cleaning corporation.15 Subsequently, noncitizen
Defendants, BP and Atlantic Richfield, removed the case to this court,16 asserting that OFS was
7 Id. at 3.
8 Id.
9 Id.
10 Id. at 4.
11 Id. at 3.
12 Id.
13 See R. Doc. 1-1.
14 Id. at 5, 9.
15 Id. at 3-5.
16 R. Doc. 1 at 1.
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improperly joined because OFS cannot be held liable for Plaintiff’s damages.17 Defendants argue
that a 2014 affidavit of Douglass LaNasa, Jr., the president of OFS, as well as the decision in
Coleman v. H.C. Price Co., a case also involving OFS, demonstrate that OFS did not clean any
used pipe after 1987, and therefore, Mr. Cline could not have been exposed to NORM while
working at OFS’s yard after 1997.18
Plaintiff filed the instant Motion to Remand,19 arguing in support that the bases for removal
were flawed for the following reasons: (1) the question of OFS cleaning used pipe after 1987 was
not a seriously contested issue in Coleman;20 (2) Mr. LaNasa’s affidavit states that OFS did not
clean used pipe at “its facilities after 1987,” not that OFS did not clean used pipe at other locations
where Mr. Cline had worked;21 and (3) the LaNasa affidavit states that any cleaning of used pipe
after 1987 was preceded by testing for NORM, so the assertion that OFS did not clean any NORM
pipe after this date can only be true if the “the NORM testing done on this pipe was 100% effective
at detecting and preventing the cleaning of all ‘NORM pipe.’”22 Plaintiff asserts that this testing is
unlikely to have been 100% accurate and introduced the affidavit of Hodges Thierry, the NORM
Radiation Safety Officer at Tuboscope’s First Avenue yard from 1979 to 2002.23 The Thierry
affidavit states that OFS cleaned used pipe at the First Avenue yard until around 2003, that Mr.
Cline worked at the same locations where OFS cleaned used pipe, and that Mr. Thierry had tested
for and found NORM contamination at these locations from the early 1990s to 2002.24
17 Id. at 4.
18 Id. at 11-12.
19 R. Doc. 22.
20 R. Doc. 22-1 at 5.
21 Id.
22 Id. at 6.
23 Id. at 4-7.
24 Id. at 4-5.
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Accordingly, Plaintiff argues, OFS’s liability for causing Mr. Cline’s NORM exposure and
subsequent illness “is certainly an open question and it cannot be said that there is no chance of
recovery from OFS on these claims,” thereby “rais[ing] a serious question as to whether the
removal was ‘objectively reasonable’ because from the start defendants had ‘no plausible
argument that diversity jurisdiction was satisfied.’”25
In opposition to Plaintiff’s motion, Defendants note that, for purposes of removal and
remand, subject-matter jurisdiction must be “evaluated on the basis of the claims set forth in the
state court complaint as it existed at the time of removal.”26 Defendants allege (1) that Plaintiff’s
petition does not state a viable claim against OFS and (2) that “Mr. LaNasa’s affidavit clearly and
unequivocally demonstrates that there can be no viable claim against OFS related to the cleaning
of used pipe during the time frame of Mr. Cline’s alleged exposures at Tuboscope.”27
Consequently, Defendants argue, OFS is an improperly joined defendant, and its citizenship should
not be considered for purposes of diversity subject-matter jurisdiction.28 Therefore, Defendants
assert complete diversity exists, thereby granting this Court subject-matter jurisdiction and making
removal proper.29
LAW AND ANALYSIS
I. Remand and Removal
“The right to remove a case from state to federal court derives solely from the statutory
grant of jurisdiction in 28 U.S.C. § 1441.”30 To determine whether subject-matter jurisdiction
25 Id. at 7-8 (citing Abrams v. Olin Corp., 248 F.R.D. 283, 292 (S.D. Ala. 2007)).
26 R. Doc. 23 at 2 (citing Cordova v. Louisiana State Univ. Health Sci. Ctr., 2021 WL 972738, at *2 (W.D. La. Mar.
1, 2021)).
27 Id.
28 Id.
29 Id.
30 Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988).
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exists for purposes of removal, courts “consider the claims in the state court petition as they existed
at the time of removal.”31 Subsequent filings and proceedings generally do not deprive the district
court of its subject-matter jurisdiction.32 Nevertheless, “[a]ny ambiguities are construed against
removal because the removal statute should be strictly construed in favor of remand.”33
Diversity jurisdiction exists in a civil action where the amount in controversy exceeds
$75,000 and the parties are citizens of different states.34 There must be complete diversity between
the parties, meaning that none of the plaintiffs may be citizens of the same state as any of the
defendants.35 Removal based solely on diversity jurisdiction is prohibited “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.”36
II. Improper Joinder
Improper joinder, also referred to as fraudulent joinder, occurs when a plaintiff joins a non-
diverse party as a defendant “solely for the purpose of blocking jurisdiction based on diversity.”37
If a court determines that the plaintiff has improperly joined a non-diverse defendant, “then the
court may disregard the citizenship of that defendant, dismiss the non-diverse defendant from the
case, and exercise subject matter jurisdiction over the remaining diverse defendant.”38
On a motion to remand, the defendant claiming improper joinder bears the burden of
31 Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Cavallini v. State Farm
Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)).
32 Cordova, 2021 WL 972738, at *2.
33 Id. (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
34 23 U.S.C. § 1332.
35 Williams v. Homeland Ins. Co. of New York, 18 F.4th 806, 812 (5th Cir. 2021) (citing Flagg v. Stryker Corp., 819
F.3d 132, 136 (5th Cir. 2016) (en banc)).
36 28 U.S.C. § 1441.
37 Cumpian v. Alcoa World Alumina, L.L.C., 910 F.3d 216, 219 (5th Cir. 2018).
38 Flagg, 819 F.3d at 136 (citing Wecker v. Nat’l Enameling & Stamping Co., 204 U.S. 176, 185-186 (1907);
Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572-73 (5th Cir. 2004) (en banc)).
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persuading the court that improper joinder has occurred.39 Improper joinder may be demonstrated
“by showing (1) actual fraud in the pleadings or (2) the inability of the plaintiff to establish a cause
of action against the nondiverse party in state court.”40 The Fifth Circuit has clarified the inquiry
in the second situation to be “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
To determine whether a reasonable basis of recovery exists, courts “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.”42 “[I]f the complaint
is sufficient to state a claim, there is no improper joinder.”43 The allegations in the complaint
should be reviewed in the light most favorable to the plaintiff, with any contested issues of fact or
ambiguities of state law resolved in the plaintiff’s favor.44 Accordingly, “[t]he burden of
persuasion on those who claim fraudulent joinder is a heavy one.”45
Nonetheless, if the plaintiff’s complaint “misstated or omitted discrete facts that would
determine the propriety of joinder,” then the district court may elect to “pierce the pleadings and
conduct a summary inquiry.”46 The Fifth Circuit has cautioned that “a summary inquiry is
appropriate only to identify the presence of discrete and undisputed facts that would preclude
39 Cumpian, 910 F.3d at 219-20.
40 Id. at 219 (quoting Davidson v. Georgia-Pacific, L.L.C., 819 F.3d 758, 765 (5th Cir. 2016)) (internal quotation
marks omitted).
41 Smallwood, 385 F.3d at 573.
42 Id.
43 Cumpian, 910 F.3d at 220.
44 See, e.g., Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003); Cumpian, 91 F.3d at 220.
45 Travis, 326 F.3d at 649.
46 Smallwood, 385 F.3d at 573.
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plaintiff’s recovery against the in-state defendant.”47 Examples of such discrete and undisputed
facts are situations where “the in-state doctor defendant did not treat the plaintiff patient, the in-
state pharmacist defendant did not fill a prescription for the plaintiff patient, . . . or any other fact
that easily can be disproved if not true.”48 Furthermore, “the motive or purpose of the joinder of
in-state defendants is not relevant,” and “the inability to make the requisite decision in a summary
manner itself points to an inability of the removing party to carry its burden.”49
ANALYSIS
The two issues presented by Plaintiff’s motion and Defendants’ opposition are whether
OFS is a properly joined defendant and whether Plaintiff’s proposed supplemental complaint
would destroy complete diversity and make remand appropriate. As correctly noted by Defendants,
subject-matter jurisdiction must be “evaluated on the basis of the claims set forth in the state court
complaint as it existed at the time of removal.”50 Accordingly, for purposes of determining whether
this court has subject-matter jurisdiction, this Court must look to Plaintiff’s state court complaint
at the time of removal, and Plaintiff is unable to destroy diversity through the addition of another
non-diverse defendant after removal. Therefore, the central issue before the Court is whether OFS,
the sole Louisiana defendant, is properly joined. Defendants argue that Mr. LaNasa’s affidavit and
the Coleman decision demonstrate that OFS has not cleaned any NORM pipe since 1987 and,
therefore, Plaintiff has no viable negligence action against OFS.51 On the other hand, Plaintiff
47 Id. at 574 (emphasis added).
48 Id. at 574 n.12.
49 Id. at 574.
50 R. Doc. 23 at 2; e.g., Cordova, 2021 WL 972738, at *2.
51 R. Doc. 23 at 5.
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asserts that OFS is properly joined because OFS’s liability “is certainly an open question and it
cannot be said that there is no chance of recovery from OFS on these claims.”52
In Cumpian v. Alcoa World Alumina, L.L.C., the Fifth Circuit reviewed a Texas district
court’s denial of a plaintiff’s motion to remand under similar facts.53 There, the plaintiff suffered
chemical burns while working at a plant owned by noncitizen Alcoa World Alumina, L.L.C.
(“Alcoa”).54 The plaintiff filed a negligence action in Texas state court, naming noncitizen Alcoa
and Texas citizens Stephen Alvarado and Palacios Marine & Industrial Coatings (“PMIC”) as
defendants.55 Alcoa removed the case to federal court, claiming that the plaintiff had improperly
joined the Texas defendants.56 According to the plaintiff, PMIC “was assigned the task of ensuring
the tank [he opened] was cleared of Caustic Liquor,”57 but Alcoa argued that plaintiff lacked
evidence of PMIC’s involvement in tagging the tank to indicate it was clear of Caustic Liquor and
therefore had not established any duty owed by PMIC.58 The district court denied the plaintiff’s
motion to remand, “finding that PMIC was not a proper party because the court could not
‘reasonably predict that [plaintiff] will recover’ from it.”59 On appeal, the plaintiff assigned error
to the district court’s refusal to remand.60 In its de novo review, the Fifth Circuit vacated the
judgment and remanded to the district court with instructions to remand to Texas state court.61
The court noted that the district court’s decision appeared to rely in part on Alcoa’s
52 R. Doc 22-1 at 7.
53 Cumpian, 910 F.3d at 218.
54 Id. at 218-19.
55 Id.
56 Id. at 219.
57 Id. at 218.
58 Id. at 220.
59 Id. at 219.
60 Id.
61 Id. at 219, 221.
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affidavit, which stated that PMIC was not permitted to perform the examination of pipes for
Caustic Liquor.62 The Fifth Circuit wrote of the district court’s error:
“On a question of improper joinder at the early stage of a case, it is
error to use the no-evidence summary judgment standard because
the determination is being made before discovery has been allowed.
Instead, the evidence that is dispositive on the Smallwood inquiry
are the facts that could be easily disproved if not true.”63
The court highlighted that rather than providing dispositive evidence demonstrating that PMIC did
not examine the tank in question, Alcoa merely presented evidence that it does not allow
contractors to do so.64 The court stressed the non-dispositive nature of Alcoa’s affidavit, writing,
“[s]uch prohibitions at this point in the case, though, simply indicate the standard rules of the
workplace. Policies, guidelines, or any number of restrictions might be ignored, particularly in
emergency situations.”65 Accordingly, the court concluded that PMIC was not improperly joined.66
Here, Defendants allege Plaintiff has failed to state a claim against OFS. Reviewing the
allegations in the light most favorable to Plaintiff, the Court finds that Plaintiff has stated a valid
claim upon which relief may be granted. Plaintiff’s complaint lists two classes of defendants: Oil
Company Defendants and Pipe Cleaning Contractor Defendants.67 OFS is the sole Pipe Cleaning
Contractor Defendant.68 Plaintiff lists multiple grounds for liability against this class of defendants,
including, but not limited to, failure to conduct safe operations, failure to contain or dispose of
NORM, failure to test pipe or monitor emissions properly, and failure to warn Mr. Cline of the
62 Id.
63 Id. at 220-21 (citing Davidson, 819 F.3d at 765).
64 Id. at 221.
65 Id.
66 Id.
67 R. Doc. 1-1 at 3.
68 Id. at 5.
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dangerous materials.69 Plaintiff further states this class of defendants breached its duty to conduct
their operations in a safe manner that would not cause harm to Mr. Cline.70 Clearly, these claims
are directed against OFS, the only defendant listed under the class of Pipe Cleaning Contractor
Defendants. Accordingly, Plaintiff’s state court complaint is sufficient to state a claim under
Louisiana law against OFS, an in-state defendant.
Next, Defendants allege the presence of discrete and undisputed facts that would preclude
Plaintiff’s recovery against OFS.71 Defendants assert that Mr. LaNasa’s affidavit and the decision
in Coleman yield the unquestionable conclusion that OFS cannot be held liable for Mr. Cline’s
exposure, disease, and death.72 Accordingly, this Court must analyze the evidence to determine if
Plaintiff truly has no possibility of recovery against OFS. First, Mr. LaNasa’s affidavit, much like
the affidavit in Cumpian, speaks only to OFS’s general policies and guidelines and does not
definitively rule out the possibility that OFS cleaned NORM pipe at the Tuboscope yard.73
Second, while this affidavit did lead the Coleman court to dismiss similar charges against
OFS, a review of the opinion in Coleman highlights a key difference between the cases.74 In
Coleman, several pipe yard workers and the surviving spouses and children of deceased pipe yard
workers brought personal injury, wrongful death, and survival claims against various defendants,
including OFS, based on their alleged workplace exposure to radioactive oil field waste
materials.75 The district court reviewed 23 motions filed by the defendants, including OFS’s
69 Id. at 8-9.
70 Id. at 9.
71 R. Doc. 23 at 5.
72 Id.
73 See R. Doc. 1-3 (“After 1987 OFS would not and did not clean used pipe anywhere unless it had first been tested
for the presence of NORM.”)
74 Coleman v. H.C. Price Co., No. 11-2937, 2014 WL 4354443 at *9 (E.D. La. Sept. 2, 2014).
75 Id. at *1.
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Motion to Dismiss for Failure to State a Claim and/or Summary Judgment.76 There, OFS presented
Mr. LaNasa’s affidavit,77 arguing that the company could not be held liable for the plaintiffs’
alleged exposure after it stopped cleaning used pipe after 1987.78 The court concluded this affidavit
was “competent summary judgment evidence” and noted that “the burden shifts to the Plaintiffs
to come forward with evidence to create a genuine fact issue.”79 Because the plaintiffs did not
come forward with any evidence, the court dismissed the claims against OFS.80
Here, Defendants have presented the same affidavit in support of its assertion that OFS is
improperly joined.81 Accordingly, the burden shifts to Plaintiff to present evidence that would
create a genuine fact issue. Unlike the Coleman plaintiffs, Plaintiff in the instant case has presented
such evidence. Mr. Thierry’s affidavit, which summarizes his findings of NORM contamination
at locations where both OFS had cleaned used pipe and Mr. Cline had worked after OFS allegedly
stopped cleaning NORM pipe, raises a genuine question as to whether OFS may be held liable.
The existence of a genuine question of material fact, which precludes the court from making a
decision in a summary manner, points to an inability of the removing parties to carry their burden.82
Because Defendants cannot prove the absence of a reasonable basis for Plaintiff to recover against
OFS, OFS has not been improperly joined in this matter and remand is appropriate.
76 Id.
77 R. Doc. 23 at 6.
78 Coleman, 2014 WL 4354443 at *9.
79 Id.
80 Id.
81 R. Doc. 23 at 6.
82 See Smallwood, 385 F.3d at 574.
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CONCLUSION
Accordingly,
IT IS ORDERED that the Motion to Remand filed by Plaintiff, Angel Cline is
GRANTED.
New Orleans, Louisiana, this 17th day of July 2023.
GREG GERARD GUIDRY
UNITED STATES DISTRICT JUDGE
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