Tarver v. Walmart Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

JOHNNY TARVER CASE NO. 3:24-CV-00561

VERSUS JUDGE TERRY A. DOUGHTY

WALMART INC. MAG. JUDGE KAYLA D. MCCLUSKY

REPORT AND RECOMMENDATION

Pending before the undersigned Magistrate Judge, on reference from the District Court, is

a motion to remand [doc. #9], filed by Plaintiff Johnny Tarver. The motion is opposed. [doc.

#13].

For reasons set forth below, IT IS RECOMMENDED that the motion to remand [doc. #9]

be DENIED and claims against Defendant Glenn Gilmore be DISMISSED WITHOUT

PREJUDICE.

Background

Johnny Tarver (“Plaintiff”) filed a Petition against Walmart, Inc. (“Walmart”) and Glenn

Gilmore (“Gilmore”), (collectively “Defendants”), on March 22, 2024, in the Fourth Judicial

District Court, Ouachita Parish, Louisiana. Petition for Damages [doc. #1-2, pp. 1-4]. Plaintiff

seeks damages resulting from his termination of employment from Sam’s Club in Monroe,

Louisiana, on April 6, 2024. Id.

Plaintiff was employed by Walmart at their Sam’s Club store located in Monroe,

Louisiana. Petition for Damages [doc. #1-2, p. 1, ¶3]; Answer [doc. #11, p. 1, ¶3]. Allegedly,

Plaintiff was injured while at Sam’s Club on April 1, 2023. Petition for Damages [doc. #1-2, p. 1,

¶4]. After the injury, Plaintiff followed the policies and procedures applicable when an employee

is injured at Walmart. Id. at p. 1, ¶5. Plaintiff requested leave from work for Monday, April 3,

2023, to be assessed by a doctor. Id. at p. 2, ¶12. When Plaintiff returned to work on Thursday,

April 6, 2023, he was terminated and was told it was due to attendance violations. Id. at p. 2, ¶14;

Answer [doc. #11, p. 3, ¶14].

Defendants removed the action to this court on April 26, 2024. Notice of Removal [doc.

#1]. Defendants’ basis for removal is diversity jurisdiction. Notice of Removal [doc. #1, p. 1, ¶2].

Plaintiff is domiciled in Louisiana. Id. at p. 2, ¶1; Petition for Damages [doc. #1-2, p. 1].

Defendant Walmart is a Delaware corporation with its principal place of business in the state of

Arkansas. Notice of Removal [doc. #1, p. 2, ¶2]. Defendant Gilmore is domiciled in Louisiana.

Id. at p. 2, ¶3; Petition for Damages [doc. #1-2. p. 1, ¶1]. Defendants assert that Gilmore is not a

properly joined defendant, and his domicile should not be considered for purposes of diversity

jurisdiction. Notice of Removal [doc. #1, p. 2, ¶3]. Further, Defendants claim that the amount in

controversy exceeds $75,000. Id. at pp. 4-5, ¶¶1-5.

Plaintiff contends that Defendants have failed to carry their burden of showing that the

amount in controversy exceeds $75,000. M/Remand [doc. #9, p. 3, ¶10]. Additionally, Plaintiff

argues that Gilmore is a properly joined Defendant. Memo in Support of M/Remand [doc. #9-1,

pp. 3-5].

Plaintiff filed the instant motion to remand on May 15, 2024. M/Remand [doc. #9].

Walmart and Gilmore filed their opposition to the motion on June 5, 2024. Opposition to

M/Remand [doc. #13].

Plaintiff did not file a reply. Accordingly, the matter is ripe.

Analysis

I. Legal Standard

A defendant may remove an action from state to federal court, provided the action is one in

which the federal court may exercise original jurisdiction. Manguno v. Prudential Property and

Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing 28 U.S.C. § 1441(a)). The removing

defendant bears the burden of establishing federal subject matter jurisdiction and ensuring

compliance with the procedural requirements of removal. Id. at 723. Federal courts are courts of

limited jurisdiction. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). Accordingly,

the removal statute is to be construed “strictly against removal and for remand.” Hicks v. Martinrea

Automotive Structures (USA), Inc., 12 F.4th 511, 515 (5th Cir. 2021).

One path to secure federal jurisdiction on removal is through diversity, which requires (a)

complete diversity of citizenship between plaintiffs and defendants, and (b) an amount in

controversy greater than $75,000. 28 U.S.C. § 1332(a).

II. Discussion

According to Defendants, this Court has diversity jurisdiction over the instant action.

Notice of Removal [doc. #1, p. 1, ¶2]. While Defendants admit that Gilmore is domiciled in

Louisiana, Defendants argue that he has not been properly joined, thus, his domicile should not be

considered for diversity jurisdiction purposes. Id. at p. 2, ¶3. Plaintiff counters that Gilmore was

properly joined. Memo in Support of M/Remand [doc. #9-1, pp. 4-5]. Additionally, Defendants

purport that the amount in controversy does exceed $75,000. Notice of Removal [doc. #1, pp. 4-

5, ¶¶1-5]. Plaintiff contends that Defendants have failed to carry their burden of showing that the

amount in controversy exceeds $75,000. M/Remand [doc. #9, p. 3, ¶10]. The propriety of remand

thus turns on if Gilmore is a properly joined defendant and if the amount in controversy is met.

Accordingly, the undersigned determines whether Gilmore has been properly joined before

analyzing if the amount in controversy is met.

a. Improper Joinder of Gilmore

It has been long established that an improperly joined or nominal defendant will not defeat

subject matter or removal jurisdiction. See Farias v. Bexar Cnty. Bd. of Trustees for Mental Health

Mental Retardation Servs, 925 F.2d 866, 871 (5th Cir. 1991); Campbell v. Stone Ins., Inc., 509 F.3d

665, 669 (5th Cir. 2007) (citing McDonal v. Abbott Labs, 408 F.3d 177, 183 (5th Cir. 2005)). A

defendant that would defeat diversity is improperly joined if “a plaintiff is unable ‘to establish a

cause of action against the non-diverse party in state court.’” Hicks, 12 F.4th at 515 (citing

Smallwood v. Illinois Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir. 2004)). “[Improper] joinder can

be established in two ways: (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.” Travis v.

Irby, 326 F.3d 644, 647 (5th Cir. 2003). There are no allegations of actual fraud in the instant case,

so the undersigned limits analysis to the second test. When considering a plaintiff’s ability to

establish a cause of action against non-diverse parties, the Court must determine “whether there is

arguably a reasonable basis for predicting that state law might impose liability.” Ross v.

Citifinancial, Inc., 344 F.3d 458, 462 (5th Cir. 2003). “This means there must be a reasonable

possibility of recovery, not merely a theoretical one.” Id. (citing Great Plains Trust Co. v. Morgan

Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)). “Nonetheless, the burden of

persuasion on those claiming [improper] joinder remains a heavy one.” Id.

There are two ways to predict the imposition of liability: (1) the court can look at the allegations

of the complaint to determine whether a claim is stated against the diversity-destroying defendants

under state law; or (2) in the few cases where the plaintiffs have stated a claim but have misstated

or omitted discrete facts that would determine the propriety of joinder, the court may, in its

discretion, “pierce the pleadings” and conduct a summary inquiry. Smallwood, 385 F.3d at 573.

The first test (“the Claim Inquiry”) has been likened to the analysis used in Rule 12(b)(6)

challenges. Id. (“Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no

improper joinder.”); see also Fed. R. Civ. P. 12(b)(6). To survive the Claim Inquiry, a complaint

“must [contain] ‘enough facts to state a claim to relief that is plausible on its face.’” Hicks, 12

F.4th at 515 (citing Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193,

200 (5th Cir. 2016)). The second test (“the 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.” Smallwood, 385 F.3d at 573-74. If the plaintiff (a) cannot state a claim against

the non-diverse defendant, or (b) successfully states a claim but fails to rebut evidence sufficient

to preclude recovery, then improper joinder has occurred, and the district court properly has

jurisdiction over the case. In such a case, it is appropriate to dismiss without prejudice all claims

against any improperly joined defendants. Int’l Energy Ventures, 818 F.3d at 210. The United

States Court of Appeals for the Fifth Circuit has recognized that the decision for which test to apply

lies within the discretion of the trial court, but the summary inquiry is only appropriate in a small

number of cases. See Smallwood, 385 F.3d at 573-74. Thus, the undersigned proceeds with the

Claim Inquiry.

As the Claim Inquiry is being utilized, the undersigned now analyzes whether the

controlling pleadings state a plausible claim against Gilmore. See City of Clinton, Ark. v. Pilgrim’s

Pride Corp., 632 F.3d 148, 152-53 (5th Cir. 2010) (To survive a Rule 12(b)(6) motion, “plaintiffs

must allege facts that support the elements of the cause of action in order to make out a valid

claim.”); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.”).1 In Plaintiff’s Motion

to Remand, Plaintiff asserts that three causes of actions have been alleged against Gilmore in the

petition: (1) intentional tort; (2) religious discrimination; and (3) wrongful, retaliatory discharge.

Memo in Support of M/Remand [doc. #9-1, p. 1]. The Court will assess the merit of each claim

in turn.

(1) Retaliatory Discharge Claim

Under Louisiana law, employers may not discharge employees from employment for asserting

a workers’ compensation claim. La. R.S. § 23:1361. To recover, an employee must “establish by

a preponderance of the evidence that she was discharged because she asserted a workers’

compensation claim.” Moreau v. Caddo Par. Dist. Att’y Off., 2020 WL 1494142, at *7 (W.D. La.

Mar. 26, 2020) (citing Kendrick v. Hercules Concrete Pumping Serv. Of Miss., Inc., 51,190 (La.

App. 2 Cir. 2/17/17), 216 So. 3d 261, 265 (citations omitted)). A cause of action under Louisiana

Revised Statute § 23:1316 can be brought solely against the employer by an employee. See Bynog

v. Aecom Gov’t Servs. Inc., 2008 WL 205444, at *2 (W.D. La. Jan. 23, 2008); see also Robin v.

Galan, 545 So. 2d 1129, 1132 (La. Ct. App. 1989).

Considering the pleadings, Plaintiff asserts that he was “discharged retaliatorily by his

employer Walmart, Inc.” Petition for Damages [doc. #1-2, p. 1, ¶5]. The petition, however, fails

to state any facts connecting Gilmore to the claim for retaliatory discharge. Instead, the claims

against Gilmore include that he “acted hostile” towards the Plaintiff and that Gilmore failed to

“remove the point from Mr. Tarver’s employee file.” Id. at pp. 1-2. ¶¶6, 9. These facts fail to

1 The federal pleading standard, not a state pleading standard, applies when conducting a Rule

12(b)(6)-type analysis to determine whether plaintiff has failed to state a claim against a nondiverse

defendant under state law. See Int’l Energy Ventures, 818 F.3d at 200.

support that Plaintiff was retaliatorily discharged by Gilmore due to his workers’ compensation

claim against Walmart. Moreover, Louisiana Revised Statute § 23:1361 provides a remedy against

an employer, not a fellow employee. Gilmore “was an employee with Walmart, Inc. that had been

delegated to the responsibility of keeping track of the employee’s point system.” Id. at p. 2, ¶7.

Given that Walmart is the Plaintiff’s employer, the claim under Louisiana law can only be brought

against Walmart, not Gilmore. See id. at p. 1, ¶3. Accordingly, Plaintiff has failed to state a claim

against Gilmore for retaliatory discharge under Louisiana Revised Statute § 23:1361.

(2) Religious Discrimination Claim

Regarding the claim of religious discrimination, Louisiana Revised Statute 23:332 governs

intentional discrimination in employment and states in pertinent part: “A. It shall be unlawful

discrimination in employment for an employer to engage in any of the following practices: (1)

Intentionally . . . discriminate against any individual with respect to . . . religion.”

Upon review of the Plaintiff’s Petition, there is a singular claim involving Gilmore and

religious discrimination, which reads: “Glenn Gilmore . . . acted hostile to Johnny Tarver due to

him being a practicing Christian.” Petition for Damages [doc. #1-2, p. 1. ¶6]. The Plaintiff,

however, fails to allege any specific facts that demonstrate how Gilmore discriminated against the

Plaintiff. Rather than providing factual support, the claim is conclusory in nature. The United

States Supreme Court has made clear that “unadorned, the-defendant-unlawfully-harmed-me

accusation[s]” are insufficient. Iqbal, 556 U.S. at 678. “[P]laintiffs must allege facts that support

the elements of the cause of action in order to make out a valid claim.” City of Clinton, 632 F.3d

at 152-53. Without the necessary factual support, the religious discrimination assertion cannot

form the basis of a viable claim.

Moreover, “employer” is defined under Louisiana Revised Statute § 23:302(2) as “a

person, association, legal or commercial entity, the state, or any state agency, board, commission,

or political subdivision of the state receiving services from an employee and, in return, giving

compensation of any kind to an employee.” In the petition, Gilmore is described as “an employee

with Walmart, Inc. that had been delegated to the responsibility of keeping track of the employee’s

point system.” [doc. #1-2, p. 2, ¶7]. The petition does not indicate that Gilmore provided

compensation to any employee; instead, it identifies him as an employee of Walmart. A religious

discrimination claim can only be brought against an “employer” as defined by the statute. Since

Gilmore does not meet the statutory definition of the Plaintiff’s employer, this claim cannot be

maintained against him. Accordingly, the Plaintiff has failed to state a claim against Gilmore for

religious discrimination.

(3) Intentional Tort Claim

In Louisiana, a person is liable for “[e]very act whatever of man that causes damage to

another obliges him by whose fault it happened to repair it.” La. Civ. Code Ann. art. 2315. A tort

is deemed intentional when the actor either “entertained a desire to bring about the consequences

that followed or where the actor believed that the result was substantially certain to follow.” Bazley

v. Tortorich, 397 So. 2d 475, 481 (La. 1981). Plaintiff asserts that Gilmore “intentionally failed

to take points off his employee record and intentionally gave him points he didn’t deserve, knowing

Plaintiff would be terminated for having too many points.” Memo in Support of M/Remand [doc.

#9-1, p. 4]. However, Plaintiff has failed to identify the intentional tort allegedly committed. The

defense, as well as this Court, finds that the only conceivable intentional torts Plaintiff could be

alleging against Gilmore are intentional interference with contract, intentional infliction of

emotional distress, and the intentional tort of wrongful discharge.

To establish a claim for intentional interference with contract against a corporate officer,

the following elements must be met: (1) the existence of a contract or a legally protected interest

between the plaintiff and the corporation; (2) the corporate officer’s knowledge of the contract; (3)

the officer’s intentional inducement or causation of the corporation to breach the contract or his

intentional rendition of its performance impossible or more burdensome; (4) absence of

justification on the part of the officer; and (5) causation of damages to the plaintiff by the breach

of contract or difficulty of its performance brought about by the officer. 9 to 5 Fashions, Inc. v.

Spurney, 538 So. 2d 228, 234 (La. 1989). The petition identifies Gilmore as “an employee with

Walmart, Inc.” [doc. #1-2, p. 2, ¶7]. As a supervisor and employee of Walmart, Gilmore does not

qualify as a corporate officer.

Moreover, in Louisiana, the Plaintiff would be considered an at-will employee. “’Absent

a specific contract or agreement establishing a fixed term of employment, an employer is at liberty

to dismiss an employee at any time for any reason without incurring liability for the discharge.’”

Stewart v. Courtyard Mgmt. Corp., 155 F. App’x. 756, 758 (5th Cir. 2005) (quoting Robinson v.

Healthworks Int’l, L.L.C., 36,802 (La. App. 2 Cir. 1/29/03), 837 So. 2d 714, 721). Plaintiff has

not asserted that he was employed under a contract. Without a contract, there can be no claim for

intentional interference with contract under Louisiana law. Furthermore, as an at-will employee,

Plaintiff could be dismissed at any time for any reason or for no reason, and Plaintiff has not cited

any statutory or jurisprudential authority to suggest otherwise. In Louisiana, in the absence of

constitutional or statutory protection, an at-will employee has no cause of action for wrongful

termination. See Stewart, 155 Fed. App’x. at 758-59. Consequently, Plaintiff has failed to state a

claim against Gilmore for intentional interference with contract and intentional wrongful

discharge.

As to the claim for intentional infliction of emotional distress, a plaintiff must establish

“(1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress

suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional

distress or knew that severe emotional distress would be certain or substantially certain to result

from his conduct.” White v. Monsanto Co., 585 So. 2d 1205, 1209 (La. 1991). The Supreme Court

of Louisiana emphasized that the conduct must be “so outrageous in character, and so extreme in

danger, as to go beyond all possible bounds of human decency.” Id. (emphasis added). This Court

finds that the failure to remove a point from an employee’s file does not constitute behavior that

surpasses all bounds of decency. Additionally, Plaintiff has failed to allege any supporting facts

that he has suffered severe emotional distress as a result of his termination. Accordingly, Plaintiff

has failed to state a claim against Gilmore for intentional infliction of emotional distress. Thus,

Plaintiff has failed to state a claim against Gilmore for any intentional tort.

In summation, based on the aforementioned reasons, this Courts finds that Plaintiff has

failed to establish that Gilmore committed an intentional tort, religiously discriminated against

him, or that Gilmore retaliatory discharged him. Plaintiff is thus unable to state a claim against

Gilmore.

b. Amount in Controversy

Defendants assert that the amount in controversy in this case exceeds $75,000. Notice

of Removal [doc. #1, p. 2]. Plaintiff contends that Defendants have failed to carry their burden of

showing that the amount in controversy exceeds $75,000. M/Remand [doc. #9, p. 3, ¶10].

Pursuant to the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (“JVCA”), the

removal statute now specifies that

[i]f removal of a civil action is sought on the basis of the jurisdiction conferred by

section 1332(a), the sum demanded in good faith in the initial pleading shall be

deemed to be the amount in controversy, except that—

(A) the notice of removal may assert the amount in controversy if the initial

pleading seeks—

(ii) a money judgment, but the State practice either does not permit demand for a

specific sum or permits recovery of damages in excess of the amount demanded.

28 U.S.C. §1446(c)(2)(A)(ii).

In Louisiana state court cases, plaintiffs are prohibited from alleging a monetary

amount of damages in the petition. LA. CODE CIV. PROC. ANN. art. 893. Thus, the

removing defendant must assert the amount in controversy in the notice of removal, which

“should be accepted when not contested by the plaintiff or questioned by the court.” Dart

Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014). Here, Plaintiff

challenged the amount in controversy allegation made by Defendants. M/Remand [doc.

#9, p. 3, ¶10]. In Dart Cherokee, the Supreme Court explained that “[i]n such a case, both

sides submit proof and the court decides, by a preponderance of the evidence, whether the

amount-in-controversy requirement has been satisfied.” 574 U.S. at 88. Plaintiff did not

submit any proof regarding the amount in controversy. Nonetheless, because “there is a

presumption against subject matter jurisdiction that must be rebutted by the party bringing

an action to federal court,” the burden rests with the removing defendant to establish the

requisite amount in controversy. Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996) (citation

omitted); see also Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851 (5th Cir. 1999) (even

a plaintiff’s failure to object to jurisdiction and her attorney’s personal belief that the case

was worth much more than $75,000 does not relieve defendant of its burden to support

federal jurisdiction at the time of removal).

To satisfy the preponderance standard, the removing defendant may support federal

jurisdiction “in either of two ways: (1) by demonstrating that it is facially apparent from

the petition that the claim likely exceeds $75,000 or (2) by setting forth the facts in

controversy—preferably in the removal petition, but sometimes by affidavit—that support

a finding of the requisite amount.” Grant v. Chevron Phillips Chem. Co., 309 F.3d 864,

868 (5th Cir. 2002) (citations and internal quotation marks omitted). In the aftermath of

Dart Cherokee, it is not entirely clear whether a removing defendant may rely on the

“facially apparent” method of proof to establish the amount in controversy when contested

by the plaintiff. See Statin v. Deutsche Bank Nat. Tr. Co., 599 Fed. App’x. 545, 546 n. 1

(5th Cir. 2014).

However, to the extent that the “facially apparent” method of proof survives Dart

Cherokee, the Court is convinced that it is satisfied in this case and that the amount in

controversy requirement is met. In Plaintiff’s Petition, he alleged that he was wrongfully

terminated from his employment at Sam’s Club on the basis of retaliation for the claims he

filed against Walmart for the injury he sustained on April 1, 2023. Petition for Damages

[doc. #1-2, p. 1, ¶¶4-5]. Plaintiff also asserts that he was discriminated against due to his

religious beliefs. Id. at p.1, ¶6. As a result of his termination, Plaintiff incurred the

following categories of damages:

1. Lost income (past, present, & future);

2. Inconvenience (past, present, & future);

3. Mental anguish and worry;

4. Other damages as they continue to accrue through trial and will be supplemented

in due course.

Id. at p. 3, ¶19.

Defendants cite Louisiana Revised Statute § 23:1361(C) in determining the amount

in controversy for this matter. Notice of Removal [doc. #1, pp. 3-4, ¶4]. The statute

provides in pertinent part:

C. Any person who has been denied employment or discharged from employment

in violation of the provisions of this Section shall be entitled to recover from the

employer or prospective employer who has violated the provisions of this Section

a civil penalty which shall be the equivalent of the amount the employee would

have earned but for the discrimination based upon the starting salary of the position

sought or the earnings of the employee at the time of the discharge, as the case may

be, but not more than one year's earnings, together with reasonable attorney's fees

and court costs.

La. R.S. § 23:1361(C).

The statute provides for a civil penalty equivalent to the amount the employee

would have earned based on the earnings of the employee at the time of discharge. Id. The

civil penalty cannot exceed more than one year’s earnings. Id. Defendants have stated that

Plaintiff’s annualized earnings, without overtime and benefits, was approximately $32,000.

Memo in Opposition to M/Remand [doc. #13, p. 22]; Notice of Removal [doc. #1, p. 5,

¶4]. Defendants have also provided statements of earnings and deductions to support this

assertion. Memo in Opposition to M/Remand [doc. #13-3, pp. 1-4]. The statute also

provides for the recovery of reasonable attorney’s fees and court costs. La. R.S. §

23:1361(C). Defendants have asserted that courts have awarded attorney’s fees ranging

from $36,000 and $68,000 per plaintiff in retaliatory and discrimination cases. Memo in

Opposition to M/Remand [doc. #13, p. 23]. Upon review, the Court finds this range to be

reasonable and consistent with prevailing awards in similar cases. See Brown v. Catalyst

Recovery of Louisiana, 01-1370 (La. App. 3 Cir. 4/3/02), 813 So. 2d 1156, 1170 (awarding

$35,402.10 and $124,602.41 in attorney fees in a wrongful termination suit where the

plaintiff is alleging wrongful termination in retaliation for reporting OSHA violations). In

fact, some cases have awarded amounts exceeding the range suggested by defendants. See

Sonnier v. Diversified Healthcare-Lake Charles, LLC, 2022-420 (La. App. 3 Cir. 4/26/23),

364 So. 3d 1213, 1239 (awarding $104,177.50 in attorney fees where plaintiff was

terminated in retaliation for whistleblowing); Motton v. Lockheed Martin Corp., 2003-0962

(La. App. 4 Cir. 3/2/05), 900 So. 2d 901, 908 (awarding $115,198.75 in attorney fees for

plaintiff who succeeded in her sexual discrimination claim against her employer).

Additionally, Plaintiff seeks damages for the mental anguish he suffered as a result

of his termination. Petition for Damages [doc. #1-2, p. 3, ¶19]. The Court finds that juries

in Louisiana commonly award mental anguish awards in the range of $20,000 to $30,000

in job retaliation and discrimination cases. See Goldsby v. State, Dep’t of Corr., 2003-0343

(La. App. 1 Cir. 11/7/03), 861 So. 2d 236, 238 (awarding mental anguish damages of

$20,000 for retaliatory action taken against plaintiff for his whistleblowing activities);

Smith v. Ouachita Par. Sch. Bd., 29,873 (La. App. 2 Cir. 9/24/97), 702 So. 2d 727, 730

(awarding mental anguish damages of $25,000 in a case where plaintiff was a tenured

teacher of business courses and a high school guidance counselor and was then demoted to

other non-teaching positions); Brown, 813 So. 2d at 1163 (awarding mental anguish

damages of $30,000 in a wrongful termination suit where plaintiff is alleging wrongful

termination in retaliation for reporting OSHA violations); Overton v. Shell Oil Co., 2005-

1001 (La. App. 4 Cir. 7/19/06), 937 So. 2d 404, 410 (awarding mental anguish damages of

$25,000 in an action where employee claims his termination was retaliation based on his

status as a whistleblower); Oden v. Baroid Drilling Fluids, Inc., 95-0827 (La. App. 4 Cir.

12/14/95), 665 So. 2d 1300, 1303 (awarding $20,000 in mental anguish damages where

plaintiff claims he was terminated from his job due to racial discrimination). Some

Louisiana courts have even awarded beyond the typical range mentioned before. See

Sonnier, 364 So. 3d at 1241 (awarding $214,000 in mental anguish damages where plaintiff

was terminated in retaliation for whistleblowing); Kling v. Louisiana Dep’t of Revenue,

2018-1480 (La. App. 1 Cir. 7/18/19), 281 So. 3d 696, 702 (awarding $75,000 in mental

anguish damages where plaintiff was terminated as a result of free speech retaliation).

In summation, the Court concludes that the value of the relief sought by Plaintiff

exceeds the jurisdictional threshold for the exercise of diversity jurisdiction. The

undersigned finds that Defendants have established by a preponderance of evidence that

the amount in controversy exceeded $75,000 at the time of removal. Further, the

undersigned finds that Gilmore was improperly joined, and his domicile should not be

considered for diversity jurisdiction purposes. Therefore, the court enjoys subject matter

jurisdiction, via diversity. 28 U.S.C. § 1332.

Accordingly, it is RECOMMENDED that the motion to remand be denied and all

claims against Gilmore be dismissed without prejudice.

Conclusion

For the foregoing reasons,

IT IS RECOMMENDED that the Plaintiff Johnny Tarver’s motion to remand [doc. #9]

be DENIED and all claims against Defendant Glenn Gilmore be DISMISSED WITHOUT

PREJUDICE.

Under the provisions of 28 U.S.C. § 636(b)(1)(C) and FED. R. CIV. P. 72(b), the parties

have fourteen (14) days from service of this Report and Recommendation to file specific, written

objections with the Clerk of Court. A party may respond to another party’s objections within

fourteen (14) days after being served with a copy thereof. A courtesy copy of any objection or

response or request for extension of time shall be furnished to the District Judge at the time of

filing. Timely objections will be considered by the District Judge before he makes a final ruling.

A PARTY’S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS

REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS SERVICE SHALL

BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR, FROM

ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS

AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.

In Chambers, at Monroe, Louisiana, on this 18th day of September, 2024.

Polka A

KAYLA DYE M¢ChuskyY

UNITED STATES MAGISTRATE JUDGE

16