United States District Court, N.D. Mississippi, Oxford Division
L.L.D., LLC; et al. PLAINTIFFS
ENPRO INDUSTRIES, INC; SAMUEL G. WILLIAMSON; et al. DEFENDANTS
MEMORANDUM OPINION DENYING PLAINTIFFS MOTION TO
before the Court is the Plaintiffs' motion to remand this
matter to state court. Upon due consideration, the Court
finds that the motion should be denied.
Factual and Procedural Background
January 31, 2019, the Plaintiffs filed a complaint in the
Circuit Court of Yalobusha County, Mississippi, alleging that
the Defendants polluted the environment in Water Valley,
Mississippi, with trichloroethylene ("TCE"), and
then have failed to remediate the pollution. The Plaintiffs
assert claims for negligence, nuisance, trespass, fraud, and
intentional or negligent infliction of emotional distress
against the Defendants.
Plaintiffs allege that from 1973 through 1987, the Defendants
polluted the environment in Water Valley with TCE from an
industrial facility, and that the pollution resulted in a
TCE-contaminated groundwater plume that impacts over 150
acres of land owned by the Plaintiffs as well as
Plaintiff-owned residences and commercial buildings. The
Plaintiffs further aver that the Defendants have breached
their duty to remediate the contamination.
March 1, 2019, the Defendants timely removed this case to
this Court on the basis of diversity jurisdiction and filed
an answer and affirmative defenses; in addition, Defendant
Williamson filed a motion to dismiss, seeking to have the
court dismiss the claims pending against him pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. On April 1,
2019, Plaintiffs filed the present motion to remand the case
to state court. The matter is now fully-briefed and ripe for
Standard of Review
courts are courts of limited jurisdiction. Epps v.
Bexar-Medina-Atascosa Cnties. Water Improvement Dist. No.
1, 665 F.2d 594, 595 (5th Cir. 1982). Federal diversity
jurisdiction, which is the basis upon which the Defendants
removed the case sub judice, requires complete
diversity between all plaintiffs and all defendants and an
amount in controversy that exceeds $75, 000. See 28
U.S.C. § 1332(a). The statute that governs removal of
actions pending in state court provides in pertinent part
that "any civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending." 28 U.S.C. § 1441(a).
will find that a plaintiff has improperly joined an in-state
defendant in order to negate or prevent complete diversity
when "there is no reasonable basis for the district
court to predict that the plaintiff might be able to recover
against an in-state defendant." Smallwood v. III.
Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en
banc). To determine whether a defendant is improperly joined,
the district "court may conduct a Rule 12(b)(6)-type
analysis, looking initially at the allegations of the
complaint to determine whether the complaint states a claim
under state law against the in-state defendant."
Id. If "a court determines that a nondiverse
party has been improperly joined to defeat diversity, that
party must be dismissed without prejudice."
Int'l Energy Ventures Mgmt., LLC v. United
Energy Grp, Ltd., 818 F.3d 193, 209 (5th Cir. 2016);
Probasco v. Wal-Mart Stores Texas, L.L.C., No.
18-50187, 2019 WL 1323986, at *1 (5th Cir. Mar. 22, 2019).
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." Davidson v.
Georgia-Pac, L.L.C., 819 F.3d 758, 765 (5th Cir. 2016)
(citing Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392,
401 (5th Cir. 2013) (internal quotations and alteration
omitted)). Only the second situation is an issue in this
case. The applicable 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."
Davidson, 819 F.3d at 765 (citing
Smallwood, 385 F.3d at 573). The burden to show
improper joinder rests on the removing party and "[t]he
burden of persuasion on those who claim [improper] joinder is
a heavy one." Davidson, 819 F.3d at 765 (citing
Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003)).
that in mind, the Court views "all unchallenged factual
allegations, including those alleged in the complaint, in the
light most favorable to the plaintiff' and resolves
"[a]ny contested issues of fact and any ambiguities of
state law" in the plaintiffs favor. Davidson,
819 F.3d at 765. It "is insufficient that there be a
mere theoretical possibility of recovery; to the contrary,
there must at least be arguably a reasonable basis for
predicting that state law would allow recovery in order to
preclude a finding of fraudulent joinder." Walton v.
Tower Loan of Miss., 338 F.Supp.2d 691, 692-93 (N.D.
Miss. 2004) (citing Travis, 326 F.3d at 648;
Badon v. RJR Nabisco Inc., 224 F.3d 382, 386 (5th
Cir. 2000) (internal quotations omitted)).
Analysis and Discussion
Plaintiffs contend that removal of this action is not
appropriate because there is lack of complete diversity of
citizenship between the parties. It is undisputed that
complete diversity exists between the Plaintiffs and all
Defendants other than Williamson. The Plaintiffs contend that
Williamson's presence as a Defendant destroys complete
diversity, as both the Plaintiffs and Williamson are citizens
of Mississippi. Plaintiffs maintain that Williamson is a
proper party to this case against whom they have alleged
cognizable causes of action and that removal is thus
argue that Williamson was improperly joined in order to
destroy diversity jurisdiction and that Williamson's
citizenship should be disregarded in the diversity
jurisdiction determination. Defendants further argue that the
Plaintiffs are attempting to impose liability upon Williamson
merely because he was, at one point, the Environmental/Safety
Director for the subject facility, and that liability cannot
be imposed upon him solely for this reason. Therefore,
Defendants argue that removal is proper.
Court now turns to the specific allegations in the
Plaintiffs' complaint against Williamson. Plaintiffs
allege that Williamson, as the Environmental/Safety Director
of the Defendants' predecessor corporation(s) between
1995 and 2002, "was responsible for managing,
supervising, and overseeing [the company's] environmental
performance and compliance" and that he "was vested
with the obligation and duty to ensure that [the company],
directly or through its retained environmental contractors,
exercised diligence and due care with regard to all remedial
actions needed or undertaken." Compl. [Doc. No. 2] at
¶ 37. Plaintiffs further aver that Williamson had the
"authority and responsibility ... to enforce and ensure
the environmental performance and compliance of the