Miller v. Home Depot, U.S.A., Inc., 2:01 CV 0859.

• Decision Date: 07 December 2001
• Docket Number: No. 2:01 CV 0859.,2:01 CV 0859.
• Citation: 199 F.Supp.2d 502
• Court: U.S. District Court — Western District of Louisiana
• Parties: Albert MILLER, et al. v. HOME DEPOT, U.S.A., INC., et al.

199 F.Supp.2d 502

Albert MILLER, et al. v. HOME DEPOT, U.S.A., INC., et al.

No. 2:01 CV 0859.

United States District Court, W.D. Louisiana, Lake Charles Division.

December 7, 2001.

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Hugh E McNeely, Eulis Simien, Jr, Simien & Simien, Baton Rouge, LA, Jack C Watson, Lake Charles, LA, Luther F Cole, Justice, Baton Rouge, LA, for Albert Miller, plaintiff.

John S Bradford, William B Monk, Stockwell Sievert et al, Lake Charles, LA, John P MacNaughton, Seslee S Smith, Robert P Alpert, Morris Manning & Martin, Atlanta, GA, for Home Depot U.S.A., Inc., defendant.

John S Bradford, William B Monk, Stockwell Sievert et al, Lake Charles, LA, Raymond A Haas, Andrew J Lewis, David W Longley, Haas Lewis, Tampa, FL, for Lowes Home Centers Inc., defendant.

Charles S Weems, III, Raymond L Brown, Jr, Lottie L Bash, Gold Weems et al, Alexandria, LA, for Roy O. Martin Lumber Co., Inc., defendant.

Gary A Bezet, Gregory M Anding, Kean Miller et al, Baton Rouge, LA, Henri Wolbrette, III, Ann E Levine, McGlinchey Stafford, New Orleans, LA, Lawrence S Ebner, Louis H Kozloff, McKenna & Cuneo, Washington, DC, Yul D Lorio, Kean Miller et al, Lake Charles, LA, for American Wood Preservers Institute, defendant.

Phillip A Wittmann, Barry W Ashe, Stone Pigman et al, New Orleans, LA, Richard I Werder, Jones Day et al, Cleveland, OH, Terence M Murphy, Jones Day et al, Dallas, TX, for International Paper Co., defendant.

Scott E Delacroix, Jeffrey E Richardson, Adams & Reese, New Orleans, LA, Thomas M Bergstedt, Bergstedt & Mount, Lake Charles, LA, Robert L Shuftan, David A Kanter, Brent R Austin, Wildman Harrold et al, Chicago, IL, for Osmose, Inc., Hickson Corp U S A, Hickson Corp, Arch Chemicals Inc., defendants.

Gary A. Bezet, Gregory M. Anding, Kean Miller, Baton Rouge, LA, Yul D. Lorio, Kean Miller, et al., Lake Charles, LA, Dennis P Waggoner, Robert B Gough III, J Michael Hayes, Hill Ward, Tampa, FL, for Robbins Mfg. Co., defendant.

Dominic Joseph Gianna, Middleberg Riddle et al, New Orleans, LA, Walter Marshall Sanchez, Lorenzi Sanchez et al, Lake Charles, LA, Patrick J Perrone, Whitney Anne Klein, McCarter & English, Newark, NJ, for Hoover Treated Wood Products, Inc., defendant.

Gregg L Spyridon, James M Matherne, Spyridon Koch et al, Metairie, LA, for Wood Treaters, Inc., defendant.

Gary A. Bezet, Gregory M. Anding, Kean Miller, Baton Rouge, LA, Yul D. Lorio, Kean Miller, et al., Lake Charles, LA, for Vulcan Chemicals, defendant.

Ben R Hanchey, Charles W Herold, III, Hudson Potts et al, Monroe, LA, Jim Warren, III, Terence L High, David Zachary Scruggs, Mitchell McNutt & Sams, Jackson, MS, for Follen Wood Preserving Co. Inc., defendant.

JUDGMENT

TRIMBLE, District Judge.

For the reasons stated in the Report and Recommendation of the Magistrate Judge previously filed herein and after an independent review of the record, and a de novo determination of the issues, and consideration of the objections filed herein, and having determined that the findings are correct under applicable law; it is

ORDERED that the motion to remand (Doc. 42) and the motion for leave to amend (Doc. 92) are DENIED. It is further,

ORDERED that there is judgment in favor of Roy O. Martin Lumber Company, L.P., Roy O. Martin Lumber Company, L.L.C. and Roy O Martin Lumber Company, Inc. and against plaintiffs dismissing, with prejudice all plaintiffs claims against these defendants. It is further,

ORDERED that there is judgment in favor of all defendants and against David Dunnaway dismissing, without prejudice all claims of David Dunnaway.

REPORT AND RECOMMENDATION

Presently before the court is plaintiffs' motion to remand (Doc. 42) and plaintiffs' motion for leave to amend (Doc. 92). These matters have been referred to the undersigned magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636.

This matter was originally filed as a putative nationwide class action in the 14th Judicial District Court for Calcasieu Parish, Louisiana. The petition asserts claims against various defendants as sellers, manufacturers, distributors, and promoters of chromated copper arsenic treated wood (CCA wood). It was removed to this court based on diversity jurisdiction. At the time of removal there were three plaintiffs, two citizens of Louisiana and one citizen of Georgia. Defendants included citizens of both Louisiana and Georgia. Plaintiffs contend that the presence of the Louisiana defendants constitutes both a defect in jurisdiction and a defect in removal procedure.¹ They also contend that the fact that there are Georgia defendants and a Georgia plaintiff is fatal to this court's jurisdiction. Finally, plaintiffs contend that the requisite jurisdictional amount is not in controversy. Plaintiffs also seek leave to amend their complaint to add a non-diverse party.

Motion to Remand

A prerequisite to removal under 28 U.S.C. § 1441(a) is that the district court of the United States must have original jurisdiction. The defendants assert that this court has original jurisdiction over this case pursuant to 28 U.S.C. § 1332(a)(1) in that the action is "between citizens of different states" and the amount in controversy exceeds $75,000. "Complete diversity" is required. Strawbridge v. Curtiss, 3 Cranch (7 U.S. 267), 2 L.Ed. 435 (1806); Caterpillar Inc. v. Lewis, 519 U.S. 61, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996).² Accordingly, "where more than one plaintiff sues more than one defendant and the jurisdiction rests on diversity of citizenship, each plaintiff must be capable of suing each defendant." Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3605. In this case complete diversity, on the face of the pleadings, appears to be lacking. Defendants, as the removing party, bear the burden of proving that the court has jurisdiction to hear this claim. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir.1992)

Louisiana Defendants — Complete Diversity

Defendants contend that the Louisiana defendants were fraudulently joined and that, therefore, their citizenship can be ignored for the purpose of determining the jurisdiction of this court. If the removing party alleges jurisdiction on the basis that non-diverse or forum state parties have been fraudulently joined, then the removing party must prove the existence of fraud. Carriere v. Sears, Roebuck and Co., 893 F.2d 98 (5th Cir.) cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990). "The burden of persuasion placed upon those who cry `fraudulent joinder' is indeed a heavy one." Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir.1994) (quoting B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981)). Here the Defendants must show that there is no possibility that the plaintiff would be able to establish a cause of action against any Louisiana defendant in state court. Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th Cir.1995); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256 (5th Cir.1995); Ford v. Elsbury, 32 F.3d 931 (5th Cir. 1994); Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir.1993).³

In determining whether the joinder of parties was fraudulent, the district court "must evaluate all of the factual allegations in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff." Burden v. General Dynamics Corp., supra at 216; Cavallini v. State Farm Mut. Auto Ins. Co., supra at 259; Ford v. Elsbury, supra at 935; The court must also resolve all ambiguities in the controlling state law in the plaintiff's favor. Id. "If there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved, then there is no fraudulent joinder." Jernigan v. Ashland Oil, Inc., 989 F.2d 812 (5th Cir.1993) (internal quotes omitted). The court is not required to determine whether the plaintiff will actually or even probably prevail on the merits of the claim, but looks only for a possibility that the plaintiff might do so. Burden v. General Dynamics Corp., supra.

In evaluating a claim of fraudulent joinder the court is allowed to pierce the pleadings and consider summary judgment type evidence such as affidavits and deposition testimony. Burden v. General Dynamics Corp., supra at 217. However, such evidence cannot be relied upon to determine whether a claim has been stated against a defendant under a legal theory not alleged in the state court complaint. Cavallini, supra at 263.

The evidence before the court indicates that none of the named plaintiffs purchased or possess CCA wood sold, distributed or manufactured by the Louisiana defendants. Plaintiffs do not contest this fact⁴, but argue that, since they are class representatives, the court should consider potential claims of unnamed putative class members in deciding whether there is any possibility of recovery. However, this court concludes that the proper focus in the fraudulent joinder analysis is, as it is in determining diversity, on the claims of the named plaintiffs and the named defendants. Oxford v. Williams Companies, Inc., 137 F.Supp.2d 756, 762-63(E.D.Tex.2001).

Nevertheless, plaintiffs contend that the Louisiana defendants may be solidarily or jointly liable pursuant to La.C.C. art 2324. However, article 2324 does not establish an independent cause of action. It merely establishes whether liability for an underlying tort is in solido or joint. Jefferson v. Lead Industries Ass'n, Inc. 106 F.3d 1245, 1253-54 (5th Cir.1997); Junior Money Bags, Ltd. v. Segal, 798 F.Supp. 375, 379 (E.D.La.1990). Because the Louisiana defendants did not sell or manufacture any CCA wood acquired by any of the named plaintiffs an underlying tort is lacking. Id; Rowell v. Carter Mobile Homes, Inc., 500 So.2d 748 (La.1987).

This court concludes that there is no possibility of plaintiffs establishing a cause of action against the Louisiana defendants....