“Any establish improper joinder: ‘(1) actual fraud in the pleading of jurisdictional facts, or (2
How later courts described this case
- “Any establish improper joinder: ‘(1) actual fraud in the pleading of jurisdictional facts, or (2
- “A mere theoretical possibility of recovery in state court will not preclude a finding of improper joinder. The federal court’s inquiry into the reasonable basis for the plaintiff’s state court recovery is a ‘Rule 12(b)(6
Written by the judges who cited it.
The opinion
MIDDLE DISTRICT OF LOUISIANA
MARVEN GARDNER CIVIL ACTION NO.
VERSUS 20-15-SDD-EWD
BIANCA TYREE LATIN, ET AL
NOTICE AND ORDER FOR TELEPHONE CONFERENCE
Marven Gardner (“Plaintiff”) filed suit against Bianca Tyree Latin (“Latin”), Lyndon
Southern Insurance Company (“Lyndon Southern”), and Kia Motors America, Inc. (“Kia”) in state
court on or about November 20, 2019.1 Per his Petition, Plaintiff alleges that he is the surviving spouse
of Joyce Gardner (“Gardner”), who died as a result of a motor vehicle collision that occurred on or
about November 20, 2018.2 He asserts a “wrongful death and survival action” against Defendants
“to recover all damages for the injuries sustained by the decedent, Joyce Gardner.”3 Specifically,
Plaintiff alleges that, at the time of the collision, Gardner was a passenger in a 2007 Kia Spectra being
driven by Latin.4 He alleges that Latin “failed to timely bring her vehicle to a stop, thereby causing
the vehicle to suddenly and without warning strike a 2015, Toyota Sienna, driven by Janet Faye
Lawler.”5 Plaintiff alleges that Gardner was “violently ejected forward, which caused her to strike
her head on the windshield of 2007 Kia Spectra.”6 He also alleges that the passenger side airbag of
the 2007 Kia Spectra, “which was designed, made and/or manufactured by [KIA],” failed to deploy
during the collision.7 Plaintiff contends that the “direct cause and/or proximate cause of the collision
and decedent’s ultimate death, were a result of the specific actions of Defendants,” and he sets forth
1 R. Doc. 1-1. Latin, Lyndon Southern, and Kia are collectively referred to herein as “Defendants.”
2 R. Doc. 1-1, at Preamble and ¶¶ 2-5.
3 Id. at ¶ 8.
4 Id. at ¶ 2.
5 Id.
6
Southern insured the 2007 Kia Spectra at the time of the collision.9
On January 8, 2020, Kia removed the suit to this Court, asserting federal subject matter
jurisdiction pursuant to 28 U.S.C. § 1332.10 With respect to the citizenship of the parties, Kia alleges
that Plaintiff is a citizen of Louisiana, that Lyndon Southern is a “foreign insurance company,
domiciled in Delaware,” and that Kia is a California corporation with its principal place of business
in California.11 Kia further asserts that while Latin is a “Louisiana citizen and thus deemed a ‘forum
defendant,’” her citizenship should not be considered for diversity jurisdiction purposes because she
“is not a proper party to the litigation and was improperly joined.”12 Specifically, Kia argues that
“Latin, daughter of the decedant [sic], was not and cannot be considered as causing any alleged airbag
defect in the subject vehicle.”13
On January 10, 2020, Plaintiff filed a Motion to Remand, arguing that this suit should be
remanded to state court because Latin is properly joined and complete diversity does not exist.14
Specifically, Plaintiff alleges that both he and Latin, the driver of the vehicle in which Gardner was
riding at the time of the collision, are Louisiana citizens.15
The party seeking removal bears a heavy burden of proving that the joinder of the in-state
party was improper.”16 “‘[A]ny contested issues of fact and any ambiguities of state law must be
resolved’ in favor of remand,”17 and “[a]ny doubts regarding whether removal jurisdiction is proper
8 Id. at ¶¶ 5-7.
9 Id. at ¶ 9.
10 R. Doc. 1, at ¶ XIII.
11 Id. at ¶ V.
12 Id. at ¶¶ VIII-X.
13 Id. at ¶ XI. In its Notice of Removal, Kia summarizes Plaintiff’s suit as follows: “Plaintiff filed this action against
defendant, Bianca Tyree Latin, Lyndon Southern Insurance Company and Kia alleging that the airbags in the subject 2007
Kia Spectra, did not work as designed during an accident that took place on November 20, 2018.” Id. at ¶ IV.
14 R. Doc. 3.
15 R. Doc. 3-1, at p. 2.
16 Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 574 (5th Cir. 2004).
17 African Methodist Episcopal Church v. Lucien, 756 F.3d 788, 793 (5th Cir. 2014) (quoting Cuevas v. BAC Home Loans
Servicing, LP, 648 F.3d 242. 249 (5th Cir. 2011)). See also, Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003) (“Any
establish 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.’”19 As to the
second method, the test “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.”20
Kia appears to rely on the second method of establishing improper joinder. A court may
resolve this issue in one of two ways. “The court may conduct a Rule 12(b)(6) analysis, looking at
the allegations of the complaint to determine whether the complaint states a claim under state law
against the in-state defendant. Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is
no improper joinder. That said, there are 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. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a
summary inquiry.”21 The Fifth Circuit has cautioned that such summary inquiry “is appropriate only
to identify the presence of discrete and undisputed facts that would preclude plaintiff’s recovery
against the in-state defendant.”22
“Federal courts are duty bound to determine their own jurisdiction and may do so sua sponte
if necessary.”23 This Court cannot ensure the existence of federal subject matter jurisdiction until the
18 Bartel v. Alcoa Steamship Co., 64 F.Supp.3d 843, 847 (M.D. La. 2014) (citing Acuna v. Brown & Root, Inc., 200 F.3d
335, 339 (5th Cir. 2000)).
19 Smallwood v. Central Railroad Co., 385 F.3d 568, 573 (5th Cir. 2004) (quoting Travis v. Irby, 326 F.3d 644, 646-47
(5th Cir. 2003)).
20 Id.
21 Smallwood, 385 F.3d at 573.
22 Id. at 573-74. See also, id. at n. 12 (“For example, 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, a party’s residence was not as alleged, or any
other fact that easily can be disproved if not true.”). See also, African Methodist, 756 F.3d at 793 (“A mere theoretical
possibility of recovery in state court will not preclude a finding of improper joinder. The federal court’s inquiry into the
reasonable basis for the plaintiff’s state court recovery is a ‘Rule 12(b)(6)-type analysis,’ although the court retains
raised in Plaintiff’s Motion to Remand is warranted. The parties should be prepared to discuss
improper joinder in light of Jasmine v. National Casualty Co.,24 Wilson v. Ace American Insurance
Co.,25 and similar cases.26
Accordingly,
IT IS HEREBY ORDERED that a telephone conference is set for Monday, January 27,
2020, at 1:30 PM before Magistrate Judge Erin Wilder-Doomes to discuss the [3] Motion to Remand
filed by Plaintiff, Marven Gardner. The purpose of the conference is to discuss the pending Motion
to Remand prior to the deadline to file an opposition memorandum, therefore, it is not necessary to
provide an opposition memorandum before the telephone conference. If the conference does not
resolve the issues raised in the Motion, an opposition memorandum may still be filed within the
deadlines imposed by Local Civil Rules. Counsel participating in the telephone conference shall call
877-336-1839 using access code 9565780 five minutes prior to conference.
Signed in Baton Rouge, Louisiana, on January 23, 2020.
S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
24 No. 17-14595, 2018 WL 1705576 (E.D. La. April 7, 2018) (granting plaintiffs’ motion to remand after finding that non-
diverse defendant, with whom plaintiffs were riding at the time of the accident, was properly joined, despite plaintiffs’
deposition testimony that “they did not think [driver] was negligent”).
25 No. 17-427, 2017 WL 3159033 (W.D. La. June 30, 2017) (granting plaintiff’s motion to remand after finding that the
allegations in plaintiff’s complaint “set forth a reasonable basis for recovery” against non-diverse defendant, with whom
plaintiff was riding at the time of the accident, and his insurer because “a host driver has a duty to operate[] his vehicle
with reasonable care under the prevailing circumstances for the benefit of his guest passengers who might be injured if
he fails to do so” under Louisiana law (citations omitted)).
26 See, e.g., Francis v. Greenwich Insurance Co., No. 16-15901, 2017 WL 894654 (E.D. La. Mar. 7, 2017) (granting
plaintiffs/passengers’ motion to remand and refusing defendant’s request to realign parties to create complete diversity
on removal); Gurley v. White No. 16-6274, 2016 WL 228867 (E.D. La. Dec. 14, 2016) (granting plaintiff and