CARL J. BARBIER, United States District Judge
Before the Court is Plaintiff's Motion to Remand (Rec. Doc. 7), which was set for a November 20, 2002 hearing on the briefs. Defendants, John E. Bauer and MGA Insurance Company, have filed a memorandum in opposition (Rec. Doc. 8). Having considered the memoranda submitted by counsel, the state court petition, and the applicable law, the Court concludes that Plaintiffs' motion should be DENIED.
BACKGROUND
According to the petition, Plaintiffs, Dianne and Joshua Edmond, were injured when their vehicle was struck by a tractor-trailer truck owned by Bennett Trucking Incorporated ("Bennett Trucking") and operated by John E. Bauer ("Bauer"). Both vehicles were traveling on the Louis Armstrong International Airport access road in Jefferson Parish, Louisiana, when Bauer allegedly made an illegal turn, ran a red light, and struck Plaintiffs' vehicle. Bauer was allegedly operating the truck in the course and scope of his employment with Bennett Trucking. Plaintiffs filed suit in Civil District Court for the Parish of Orleans, State of Louisiana naming the following as Defendants: Bauer; Bennett Trucking; MGA Insurance Company ("MGA Insurance"), the liability insurer of the tractor-trailer truck; and the City of New Orleans ("the City"), by and through the New Orleans Aviation Board, as owner of the property on which the accident allegedly occurred.
Defendants Bauer and MGA Insurance removed the action to this Court, alleging that Plaintiffs fraudulently joined the City to defeat diversity jurisdiction. Plaintiffs are Louisiana citizens. Bauer, Bennett Trucking, and MGA Insurance are all citizens of diverse states. Plaintiffs then filed the instant Motion to Remand. In their opposition memorandum, Defendants stipulated to their liability in this action and also stipulated that there is no third-party liability in this action.
There is no factual controversy as to whether there is diversity between Plaintiffs and these Defendants. The petition states that Bauer is a Minnesota resident. The notice of removal states that he is a resident of South Dakota. Bennett Trucking is a Minnesota citizen. MGA Insurance is a Texas citizen.
DISCUSSION
The burden of proving fraudulent joinder is a difficult one and lies with the removing party. Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir. 1995). The removing party must establish the alleged fraud by showing that there is no possibility that the plaintiff could establish a cause of action against the removing party in state court. Dodson v. Spiliada Mar. Corp., 951 F.2d 40, 42 (5th Cir. 1992). In evaluating claims of fraudulent joinder, a district court "must initially resolve all disputed questions of fact and all ambiguities in the controlling state law in favor of the non-removing party." Id. Next, the Court must "determine whether the party has any possibility of recovery against the party whose joinder is questioned." Id. If the Court concludes that such a possibility exists, there is no fraudulent joinder and the case is properly remanded. Id. Accordingly, Defendants bear the burden of showing that there is no possibility that Plaintiffs can establish a cause of action against the City in state court.
After reviewing Plaintiffs' petition and their Motion to Remand, the Court concludes that the City was fraudulently joined because there is no possibility that it could be subject to any liability in state court arising out of the underlying accident. Plaintiffs' petition clearly describes a set of facts involving the alleged negligent actions of Bauer. The petition further states that "[t]he sole and proximate cause of the . . . accident was the negligence and fault of . . . Bauer." As a result, Bauer's employer, Bennett Trucking, and MGA Insurance are also allegedly liable for Plaintiffs' damages. Based on the allegations of the petition, it appears that Plaintiffs can establish a cause of action against these Defendants in state court. Furthermore, Bauer and MGA Insurance have already stipulated to their liability.
In contrast, Plaintiffs alleged no facts in their petition which would establish a viable cause of action against the City. The petition merely states three things that the City allegedly failed to do: 1)provide a safe premises for guests; 2)provide proper traffic controls; and 3)maintain and regulate the flow of traffic. However, Plaintiffs do not allege any facts in support of these statements. They make no factual assertions showing how the City's actions, or omissions, were a cause of the accident. Without any factual assertions supporting Plaintiffs' claims, there are no genuine issues of material fact with regard to the City's liability. Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 816 (5th Cir. 1993). Plaintiffs, in seeking to create an issue of material fact, cannot rely on the "mere assertion of `metaphysical doubt as to the material facts'". Id. (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986)).
The petition paints a very confusing and inconsistent theory of causation and liability. Plaintiffs allege a set of facts which clearly show that the negligence of Bauer was the sole cause of the accident. However, they then turn around and assert, without a factual basis, that the City is also liable for the same accident. The Court finds that this confusion and inconsistency is the result of Plaintiffs' attempt to fraudulently join the City in this action. There is no possibility that Plaintiffs could recover against the City in state court because no set of facts exist which would support such a cause of action. Accordingly, for purposes of examining whether complete diversity exists under 28 U.S.C. § 1441 (a) 1332(a)(1), the Court will not consider the citizenship of the City or the New Orleans Aviation Board. Consequently, complete diversity exists between Plaintiffs and Bauer, Bennett Trucking, and MGA Insurance. The action was properly removed to this Court under § 1441(a).
Due to the complete lack of factual support of Plaintiffs' claims against the City, the Court need not address whether the City is immune from liability under LA. R.S. § 9:2798.1(B)
Therefore;
It is HEREBY ORDERED that Plaintiff's Motion to Remand (Rec. Doc. 7) is DENIED.