Pate v. Adell Compounding, Inc.
| Decision Date | 14 July 1997 |
| Docket Number | Civil Action No. 97-132-B-M1. |
| Citation | 970 F.Supp. 542 |
| Parties | Ulysses PATE and Kathy Pate v. ADELL COMPOUNDING, INC., DSM Copolymer, Inc., Aristech Chemical, Inc., and John Doe Manufacturing Company. |
| Court | U.S. District Court — Middle District of Louisiana |
Kirby J. Guidry, Baton Rouge, LA, Joseph Jerry McKernan, McKernan Law Firm, Baton Rouge, LA, for Ulysses Pate, Kathy Pate.
Charles W. Borde, Jr., Charles W. Borde, Jr., Attorney Judge, Ward II City Court, Denham Springs, LA, Sherry Powell Crain, Associate of Charles W. Borde, Denham Springs, LA, for Adell Compounding, Inc.
Vance A. Gibbs, Barrye Panepinto Miyagi, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Baton Rouge, LA, for DSM Copolymer, Inc.
John R. Tharp, David Mark Bienvenu, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, LA, for Aristech Chemical, Inc.
RULING ON PLAINTIFFS' MOTION TO REMAND
This matter is before the Court on the plaintiffs' motion to remand. Defendants timely removed this suit from the Twenty First Judicial District, Parish of Livingston, State of Louisiana.1 For the reasons which follow, the plaintiffs' motion to remand is denied.
On September 20, 1996, plaintiffs, Ulysses and Kathy Pate, filed this suit in state court against Adell Compounding, Inc. ("Adell"), DSM Copolymer, Inc. ("Copolymer"), Aristech Chemical, Inc. ("Aristech"), and John Doe Manufacturing Company.2 The plaintiffs seek damages from the defendants arising from an accident in which Ulysses' arm was severed at the elbow when his sleeve got caught in a roller of a strand puller at the Adell facility where he worked as an assistant operator.3 Adell was Ulysses Pate's employer at the time of the incident. Copolymer the previous owner of the facility, was sued as the manufacturer and/or designer of the strand puller Ulysses Pate was operating on the day of his injury. The plaintiffs charged that Copolymer was negligent in failing to warn of the dangerous characteristics of the strand puller. In addition, the plaintiffs allege Aristech was negligent. The plaintiffs contend that Adell was manufacturing Aristech's product at the time of Ulysses Pate's injury. The plaintiffs claim Aristech was negligent after making a safety inspection of the equipment because Aristech failed to follow up and require the installation of safety features which would have prevented Ulysses Pate's accident.4
On February 19, 1997, Aristech and Copolymer removed the case to federal court pursuant to 28 U.S.C. §§ 1441 and 1446. The basis for subject matter jurisdiction is diversity pursuant to 28 U.S.C. § 1332. There is no dispute the jurisdictional amount required by 28 U.S.C. § 1332 has been met. However, the controversy in this matter centers around the question of complete diversity of citizenship of the parties.
In the initial notice of removal, the defendants claimed complete diversity existed in this case since the plaintiffs were Louisiana citizens and the defendants, Aristech and Copolymer, were not Louisiana corporations for purposes of diversity. The defendants claimed Aristech was incorporated in Delaware with its principal place of business in Pennsylvania, and Copolymer was incorporated in Delaware with its principal place of business in Delaware.5 Despite the fact the third named defendant, Adell, was a citizen of Louisiana, Aristech and Copolymer insisted complete diversity was still present because Adell was fraudulently joined. On March 3, 1997, Aristech, with leave of court, filed an amended notice of removal. In this amended notice of removal, Aristech corrected an error which was made in the first removal regarding the Copolymer's principal place of business. Aristech admitted in the amended notice of removal that Copolymer's principal place of business was in Baton Rouge, instead of Delaware, at the time of the accident.6 Thus, Copolymer must be considered a Louisiana defendant for determining diversity jurisdiction.7 Nevertheless, Aristech urged that complete diversity was present in this case because both non-diverse defendants, Adell and Copolymer, were fraudulently joined. The Pates filed this motion to remand insisting Adell and Copolymer were not fraudulently joined, and therefore, this Court lacks subject matter jurisdiction because the parties were not completely diverse as required by 28 U.S.C. § 1332.
The removing party bears the heavy burden of demonstrating that the desired joinder is fraudulent and that the district court has subject matter jurisdiction to hear the claim.8 Although it is not within the Court's province to attempt to resolve factual disputes regarding matters of substance,9 the Court is empowered to "pierce the pleadings" to determine whether the non-removing party has a legitimate claim against tie non-diverse party under the governing state law.10 In addition, because claims of fraudulent joinder in the Fifth Circuit are disposed of in a summary judgment-like procedure, the Court is authorized to consider evidence outside the pleadings, such as affidavits and depositions accompanying the notice of removal or the motion to remand.11 The standard is clear: "After all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the non-removing party, the court determines whether that party has any possibility of recovery against the party whose joinder is questioned."12
The Court now turns to the issue of whether Adell and Copolymer were fraudulently joined in this case.13
In order to prove fraudulent joinder, Aristech must prove there is no possibility the Pates can recover against Adell in this tort action. The defendants claim Adell, as the plaintiff's employer, is immune from Ulysses Pate's tort suit pursuant to the Louisiana Workers' Compensation Act.14 Louisiana Revised Statutes 23:1032 provides that workers' compensation benefits are the exclusive remedy of an employee against an employer for injuries arising out of and in the course and scope of his employment. This immunity from tort actions, however, does not apply when the employee's injuries are the result of an intentional act.15
It is undisputed that Ulysses Pate was an employee in the course and scope of his employment at the Adell facility when he was injured. Yet, the Pates contend that the Louisiana Workers' Compensation Act does not bar this suit against Ulysses Pate's employer because Ulysses Pate's injury was caused by an intentional tort committed by Adell.16
Thus, this Court must determine whether there is any possibility that the Pates can recover from Adell for an intentional tort. In Guillory v. Domtar Industries Inc.,17 the Fifth Circuit noted "[c]ourts narrowly interpret the intentional act loophole to the workers' compensation system."18 In that case, an employee was injured after being struck on the head by a fork that fell from a forklift. On a motion for summary judgment, the Court found the employer did not intend to injure the employee and, therefore, the employee was prevented by the exclusivity provisions of workers' compensation law from recovering against the employer in tort. The Guillory court remarked, even if the falling forks created a "`high probability' of injury, this would not establish `intent' sufficient to bypass the workers' compensation system."19 The Fifth Circuit held an employer's knowledge of falling forks by itself cannot establish intent on the part of the employer.20
Any discussion of intentional tort in Louisiana must include the Louisiana Supreme Court's decision in Bazley v. Tortorich.21 In Bazley, the Court declared an act is considered intentional whenever it is shown that the defendant either "consciously desired" the physical result of his conduct or was "substantially certain" that those physical results would follow from his actions.22 The Fifth Circuit in Guillory further noted "the substantially certain test is satisfied when an employer consciously subjects an employee to a hazardous or defective work environment where injury to the employee is nearly inevitable — that is, injury is `almost certain' or `virtually sure' to occur or is incapable of being avoided."23
This Court discussed the precepts of Bazley in Charkhian v. National Environmental Testing, Inc.,24 a case with facts very similar to the instant case. On a motion to remand in Charkhian, the plaintiff argued the intentional act exception to the Workers' Compensation Act allowed tort recovery against three co-employees who were allegedly fraudulently joined. This Court found the co-employees were fraudulently joined, reasoning there was no possibility that the plaintiff could recover against the three co-employees for intentional acts. This Court observed that the plaintiffs in that case did nothing more than allege that the plaintiff's co-employees "committed intentional torts" and failed to introduce any evidence in support of their motion to remand which indicated the co-employees were at least substantially certain the plaintiff would be injured.25 This Court noted that it is well-established under Louisiana law that the use of the word "intentional" is "not a talisman which automatically raises allegations of negligence to the level of intentional tort."26
In an earlier opinion, Carriere v. Sears, Roebuck and Co.,27 the Fifth Circuit, on a motion to remand, also found a co-employee was fraudulently joined to defeat federal jurisdiction. The plaintiffs in that case were the survivors of a security guard who was killed while investigating suspicious activity on the employer's loading dock. The plaintiffs argued the non-diverse employee defendant committed an intentional act by failing to accompany the security supervisor to the loading dock. The plaintiffs produced an affidavit of the non-diverse employee defendant in support...
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...Moreno argues that as a nondiverse defendant, Marathon has no standing to remove this case on diversity. Pate v. Adell Compounding, Inc., 970 F.Supp. 542, 548 (M.D.La.1997) (a non-diverse defendant has no standing to remove a case to federal court),8citing Jewell v. Dudley L. Moore Ins., In......
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...that Turner acted intentionally to harm Plaintiff. Plaintiff's allegations are similar to the ones considered and rejected by this Court in Pate v. Adell Compounding, Inc.61 In that case, the plaintiff employee was injured when his sleeve got caught in a roller of a strand puller and, like ......
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Moreno Energy, Inc. v. Marathon Oil Co.
...the claims against it be dismissed, while the Court has no jurisdiction to entertain Marathon's request. See Pate v. Adell Compounding, Inc. , 970 F. Supp. 542, 548 (M.D. La. 1997)(stating that a non-diverse defendant has no standing to remove a case to federal court)4 ; Jewell v. Dudley L.......
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Charles v. Hill, CIVIL ACTION NO.: 14-425-JJB-RLB
...sound in negligence, those claims are precluded by Louisiana's Workers' Compensation statute. See, e.g., Pate v. Adell Compounding, Inc., 970 F. Supp. 542, 545 (M.D. La. 1997) (Louisiana Workers' Compensation statute precludes an employee's claim of negligence against his employer or co-emp......