Bourque v. Nan Ya Plastics Corp., America

• Decision Date: 28 November 1995
• Docket Number: No. 95-715-A.,95-715-A.
• Citation: 906 F. Supp. 348
• Parties: John Chad BOURQUE v. NAN YA PLASTICS CORPORATION, AMERICA, et al.
• Court: U.S. District Court — Middle District of Louisiana

906 F. Supp. 348

John Chad BOURQUE v. NAN YA PLASTICS CORPORATION, AMERICA, et al.

No. 95-715-A.

United States District Court, M.D. Louisiana.

November 28, 1995.

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Craig Sterling Watson, Cave & McKay, Jack J. Whitehead, Jr., Baton Rouge, LA, for Plaintiff.

William H. Parker, III, Charles M. Kreamer, Allen & Gooch, Lafayette, LA, for Defendants.

RULING ON MOTION FOR REMAND

JOHN V. PARKER, Chief Judge.

This matter is before the court on plaintiff's motion to remand to state court. Oral argument is not necessary. Removal jurisdiction is allegedly based on 28 U.S.C. § 1332.

BACKGROUND

This action was originally filed in the Eighteenth Judicial District Court for the Parish of Pointe Coupee. Plaintiff is a citizen of Louisiana. Defendants Nan Ya Plastics Corporation, America and Formosa Plastics Corporation, Louisiana are corporations incorporated in the state of Delaware with their principal place of business in Livingston, New Jersey. Defendant Zurich-American Insurance Company is an insurance company domiciled in the state of Illinois with its principal place of business in Schaumberg, Illinois. Bobby Higginbotham and Robert Austin who are named as defendants in the state court petition are Louisiana citizens, as is plaintiff. If Higginbotham and Austin are properly joined as defendants, then there is no federal subject matter jurisdiction because the plaintiff and all defendants are not diverse in citizenship.

Plaintiff is employed by Nan Ya Plastics Corporation, America as a machine operator, and was injured when his hand was caught in a plastic press and burned by molten poly vinyl chloride (PVC). Plaintiff claims that defendants, Austin and Higginbotham, his foreman and supervisor respectively, taught him to clean excess PVC plastic from the machine by scraping it with a knife, without turning the machine off, and that as a result of following this practice, his hand was caught in the calendar rollers on the press, and burned by the PVC.

Defendants Nan Ya Plastics Corporation, America, Formosa Plastics Corporation, Louisiana, and Zurich-American Insurance Company removed the case to this court. They claim that the nondiverse defendants, Higginbotham and Austin, were fraudulently joined, and that the plaintiff has no intention of seeking judgment against them.

Plaintiff moves to remand the case to state court. Although plaintiff had not served defendants Higginbotham and Austin when the case was removed, he has served them now, after removal, and argues that they were not fraudulently joined. Under the Louisiana Workers' Compensation Act, employers and fellow workers are exempt from tort claims by employees. Plaintiff argues that Higginbotham and Austin are not shielded by the exclusivity provisions of the workers' compensation statute, La.R.S. 23:1032, because they are individually liable to him for exemplary damages under La.Civil Code art. 2315.3¹ as construed by the Supreme Court of Louisiana in Billiot v. B.P. Oil Co., 645 So.2d 604, 606 (La.1994). Plaintiff also alleges that Higginbotham and Austin are not shielded by the exclusivity provisions of La.R.S. 23:1032 because his injury resulted from their intentional acts.

The jurisdictional amount is not in dispute. The only issues before this court are whether the plaintiff fraudulently joined Higginbotham and Austin, and whether he has voluntarily abandoned his claims against them.

DISCUSSION

The burden of establishing federal jurisdiction is on the party seeking removal. Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921). Because removal raises serious concerns with regard to concepts of federalism and comity, removal jurisdiction is strictly construed. Willy v. Coastal Corp., 855 F.2d 1160 (5th Cir.1988). The right to remove a case to federal court is derived from Article III, Section 2 of the Constitution ("The Judicial Power shall extend to all ... controversies ... between citizens of different States ...") and vested in district courts by 28 U.S.C. § 1441; removal in this case is allegedly based on diversity of citizenship.

VOLUNTARY DISMISSAL

Defendants assert that plaintiff does not intend to pursue his claims against Higginbotham or Austin and has thus "abandoned" his claims against those defendants. The defendants can avoid remand of the case if they can show that plaintiff has voluntarily abandoned his claims against the non diverse defendants by clear and unambiguous acts. Erdey v. American Honda Co., Inc., 96 F.R.D. 593 (M.D.La., 1983). To establish this argument, the defendant must show that the plaintiff, by a voluntary act, has clearly and definitively demonstrated an intention to discontinue the action as to the non diverse defendants. The fact that a non diverse defendant has not been served, without more, does not entitle a diverse defendant to remove. Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1939). In Aydell v. Sterns, 677 F.Supp. 877, 881 (M.D.La. 1988), this court found that a direction by the plaintiff to "withhold service" on the defendants was not, by itself, a sufficiently clear and definitive declaration by the plaintiff of an intention to abandon his claim against the non diverse defendant to constitute a voluntary dismissal.

The last page of the state court petition instructs that "all defendants be served in accordance with paragraph two of this petition." As to each of the nondiverse defendants, paragraph two provides "named defendant is an individual of the full age of majority who resides in ... Louisiana and may be served at: HOLD SERVICE."

Defendants argue that the instruction "HOLD SERVICE" is sufficient to demonstrate abandonment of the action against those two defendants.

The removing defendants have not offered any additional facts to support their claim that the plaintiff does not intend to pursue his claims against these defendants. Plaintiff has now served those defendants.

Because federal jurisdiction is determined at the time of removal, Cavallini v. State Farm Mut. Auto. Ins. Co., 44 F.3d 256 (5th Cir.1995), post removal service will not have any bearing on this issue, although it does indicate an intent to prosecute, not abandon, the claims against the nondiverse defendants. This court finds that the plaintiff's failure to serve the petition on Higginbotham and Austin does not amount to a clear and unambiguous act sufficient to constitute a voluntary dismissal or abandonment of his claims against these defendants.

FRAUDULENT JOINDER

In order to establish that a non diverse defendant has been fraudulently joined, the moving party must show that there is no possibility that the plaintiff could establish a cause of action against the non diverse defendant in state court. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981). A federal district court may employ a summary judgment type process in resolving removal questions in diversity cases. Mitchell v. Exxon Corp., 860 F.Supp. 332 (M.D.La.1994). The court may consider the affidavits submitted in connection with the motion to remand, or with the defendants' opposition to the motion, but the court must evaluate all of the factual allegations in the light most favorable to plaintiff, and resolve all contested issues of substantive fact in favor of plaintiff. B., Inc. v. Miller Brewing Co., 663 F.2d at 549; Carriere v. Sears, Roebuck and Co., 893 F.2d 98 (5th Cir.), cert. den., 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990). Since this is a diversity case, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and its progeny require the court to look to the law of Louisiana to decide the substantive issues. Mitchell, 860 F.Supp. at 334.

Workers' Compensation

The remedies provided to an injured employee by the Louisiana Workers' Compensation statute, La.R.S. 23:1032 displace all other rights and remedies against the injured employee's employer or co-employees. Section 1032 A.(1)(a) says:

The rights and remedies herein granted to an employee ... on account of injury ... for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee ... against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury ...

However, an employee's claim against his employer or co-workers is not barred by the Workers' Compensation statute if the claim is based on an intentional act. Section 1032 B. says:

Nothing in this chapter shall affect the liability of the employer ... or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

Article 2315.3 of the Louisiana Civil Code authorizes exemplary damages in addition to general and special damages where, "... plaintiff's injuries were caused by the defendant's wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances."

In Billiot v. B.P. Oil Co., 645 So.2d 604 (La.1994), the Supreme Court of Louisiana found that an employee's claims for exemplary damages against his employer under article 2315.3 fit within the limitation in sec. 1032 B of the exclusivity provisions of the Workers' compensation statute. Thus the plaintiff's claims for exemplary damage were not barred. Accordingly, the workers' compensation statute will preclude plaintiff's claims against the non diverse defendants, since they are co-employees, unless his claims are based on injuries resulting from their intentional acts, or conduct for which exemplary damages may be awarded under La.Civil Code art. 2315.3.

We now turn to each of these issues in the determination of whether the non diverse defendants have been properly joined and ultimately whether this court has subject matter jurisdiction.

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