JAY C. ZAINEY, Senior District Judge
Before the Court is a Motion to Remand (Rec. Doc. 66) filed by plaintiffs Joseph Garon, et al. Defendant Illinois Central Railroad Company d/b/a Canadian National/Illinois Central Railroad Company ("CN/IC") opposes the motion. The motion, set for hearing on December 17, 2003, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is DENIED.
Background
Plaintiffs, Joeseph Garon, Roger Dunlap, Mary Garon, and A B Motors, Inc., seek damages in conjunction with the October 12, 2002, train derailment which occurred in Amite, Louisiana. Plaintiffs allege that their property is located adjacent to where the train derailed, and that sections of the train struck and damaged their property. Pet. ¶ 6. Plaintiffs further allege that the derailment also caused emissions and leaks of toxic chemicals which were deposited onto their property. Id. They allege damage to their immovable property and movable property (structures and diminution of value), damage to inventory (including transmissions and automotive parts), as well as loss of business revenue for an "extended period of time," and compensatory damages for their inconvenience. Id. ¶¶ 9-11. Plaintiffs filed suit against CN/IC, CNR, Larry Polk, D.C. Hoyt, and Virgil Jenkins. CN/IC removed the suit to this Court.
Plaintiffs now move to remand the case to state court.
The Parties' Contentions
Plaintiffs argue that this Court lacks subject matter jurisdiction over the case because the parties are not completely diverse. Plaintiffs assert that they are residents of Louisiana as are defendants Polk, Hoyt, and Jenkins. Moreover, Plaintiffs assert that the removal was procedurally defective because Polk did not join in or consent to the removal.
In opposition, CN/IC asserts that Polk, Hoyt, and Jenkins have been fraudulently joined for the purpose of defeating diversity jurisdiction. CN/IC also argues that at least one of the Plaintiffs' claims likely exceeds $75,003 so the Court has supplemental jurisdiction over the claims of the other plaintiffs. Finally, CN/IC argues that Folk's consent to the removal was not necessary because fraudulently joined parties need not join in a removal notice.
Discussion
It is well-established that the party invoking the jurisdiction of a federal court has the burden of proving that the exercise of such jurisdiction is proper. In re North American Philips Corp., 1991 WL 40259, at *2 (5th Cir. 1991). In a removal case, the removing party bears that burden, a burden unaffected by the status of discovery, the number of plaintiffs, or any problems created by state law. Id. Any doubt regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction and in favor of remand. Acuna v. Brown Root, Inc., 20C F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1983)).
If the removing party alleges jurisdiction on the basis that parties of non-diverse citizenship have been fraudulently joined, then the removing party must prove the 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) (citing Griggs v. State Farm Lloyds, 181 F.3d 694 (5th Cir. 1999)). The court must determine based upon the record before it whether the plaintiff has any possibility of recovery against the party whose joinder is questioned. Id. (citing Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305 (5th Cir. 2002)). In a fraudulent joinder analysis, the district court may "pierce the pleadings" and any ambiguities of state law or contested issues of fact must be resolved in plaintiff's favor. Id. (citingCarriere v. Sears, Roebuck Co., 893 F.2d 98 (5th Cir. 1990); Griggs, 181 F.3d at 699-702). The burden of persuasion on those who claim fraudulent joinder is a heavy one. Id. (citingB. Inc. v. Miller Brewing Co., 633 F.2d 545, 549 (5th Cir. 1981)).
Polk is alleged to be the track supervisor overseeing inspections of that section of track where the derailment occurred. Pet. ¶ 4. Plaintiffs allege that Polk had garde of the track where the derailment occurred. Id. ¶ 13. On July 18, 2003, this Court held that the Zanders plaintiffs had fraudulently joined Larry Polk in order to defeat diversity jurisdiction. In re Train Derailment Near Amite Louisiana, on October 12, 2002, No. MDL 1531, 2003 WL 21715000 (E.D. La. July 18, 2003). Specifically, the Court concluded that the Zanders plaintiffs had no claim against Polk for supervisory liability underCanter v. Koehring Co., 283 So.2d 716 (La. 1973). The Garon plaintiffs point to no new evidence which would call into doubt that prior ruling. Thus, Folk's presence in the lawsuit does not destroy diversity. Because Polk was fraudulently joined, CM/IC was not required to have him join in the removal. Johnson v. Scimed, Inc., 92 F. Supp. 22 587, 589 n. 2 (W.D. La. 2000). Therefore, the removal is not defective.
Hoyt and Jenkins are alleged to be track inspectors of the section of track where the derailment occurred. Pet. ¶ 4. However, it is undisputed that another track inspector, Gerald McKenzie, inspected the track the day before the accident. In re Train Derailment, 2003 WL 2171500, at *1. Although the Garon plaintiffs recently filed suit, discovery has been proceeding in this Court for many months. Plaintiffs have been unable thus far to discover any evidence tending to show that a viable cause of action exists against the track inspectors, much less against Hoyt and Jenkins who did not inspect the track immediately prior to the accident. The Court is convinced that Hoyt and Jenkins, like Polk, were fraudulently joined to defeat diversity jurisdiction. Thus, their citizenship need not be considered for diversity purposes. Plaintiffs are citizens of Louisiana and CNR and CN/IC are citizens of Quebec and Illinois, respectively. Thus, the parties are completely diverse.
Mr. McKenzie is a Mississippi resident.
Having determined that the parties are completely diverse, the Court must now ascertain whether the jurisdictional amount in controversy is satisfied. Louisiana's pleading rules prohibit plaintiffs from claiming a specific dollar amount of damages. La. Code Civ. P. art. 893(A)(1). When a plaintiff's complaint does not prove by a preponderance of the evidence that the amount in controversy requirement is met.Felton v. Greyhound Lines. Inc., 324 F.3d 771, 773 (5th Cir. 20C3) (citing De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993)). Defendant may meet that burden by either establishing that it is "facially apparent" that the claims probably exceed $75,000 or by establishing the facts in controversy in the removal petition to show that the amount in controversy is met. Id. (citing Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999)).
Plaintiffs do not assert that the amount in controversy does not exceed $75,000. And while they correctly note that CN/IC, as the party invoking the federal court's jurisdiction, bears the burden of demonstrating that the amount in controversy requirement is met, they do not assert that CN/IC cannot meet that burden. Nevertheless, the Court is duty-bound to ascertain that jurisdiction is present.
The Garons' auto business is located adjacent to the derailment cite. In addition to their own damage claims, the Garons have brought suit on behalf of the business, A B Motors, Inc. Together they allege damage to their immovable property and movable property (structures and diminution of value), damage to inventory (including transmissions and automotive parts), as well as loss of business revenue for an "extended period of time," and compensatory damages for their inconvenience. Pet. ¶¶ 9-11. The Garons also allege fear that the release of chemicals exposed them to immediate and lasting dangers of illness and disease. Id. ¶ 17.
Plaintiffs' petition is not pled with such specificity so as to allow the Court to ascertain whether all of the Plaintiffs' claims exceed $75,000 but the Court is convinced that at least: one of the Plaintiffs' claims meets the jurisdictional threshold. A B Motors has claimed lost business revenue for an "extended period of time," as well as damage to movable property and inventory. It is facially apparent that the amount in controversy for the business's claims likely exceeds $75,000. Moreover, the petition alleges damage to the business's immovable property, and while it is unclear whether A B Motors or the Garons own the immovable property, when this claim is added to either party's other claims the jurisdictional amount is surely met. The Court need only have original jurisdiction over one of the Plaintiffs' claims in order for the entire matter to be removable.
When the district court has original jurisdiction over one plaintiff's claim, 28 U.S.C. § 1367 gives the district court supplemental jurisdiction over a co-plaintiff's claim even when the amount in controversy requirement is not met on the second plaintiff's claim. See 28 U.S.C. § 1367(a)-(b) (supplemental jurisdiction not precluded over claims by plaintiffs joined under Rule 20); Stromberg Metal Works, Inc. v. Press Mechanical. Inc., 77 F.3d 928 (7th Cir. 1996); Fairchild v. State Farm Mut. Ins. Co., 907 F. Supp. 969 (M.D. La. 1995); Sunpoint Securities, Inc. v. Porta, 192 F.R.D. 716 (M.D. Fla. 2000); see also In re Abbott Labs., 51 F.3d 524 (5th Cir.), reh'g denied. 65 F.3d 33 (5th Cir. 1995).
In sum, the properly joined parties are completely diverse and the amount in controversy of at least one of the Plaintiffs' claims likely exceeds $75,000. Therefore, the entire case was properly removed.
Accordingly;
IT IS ORDERED that the Motion to Remand (Rec. Doc. 66) should be and is hereby DENIED.