United States District Court, N.D. Oklahoma
KESHIA PORTER RICHARDSON, individually, as representative of the Estate of Delandis Richardson, deceased, and as next friend of M.R., MA.R., and MY.R., minor children, JACQUELINE RICHARDSON, and DARYL SLATE, Plaintiffs,
CUDD PRESSURE CONTROL, INC. d/b/a Cudd Energy Services, FORD MOTOR COMPANY, and BALLARD'S OF CLINTON d/b/a McKinsey Motor Company d/ba/ AMC Jeep Renault, McKinsey-Ballard Motors and/or McKinsey Ford, Defendants.
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiffs' Motion to Remand to
Oklahoma State District Court (Dkt. # 12). Plaintiffs argue
that this case was improperly removed to federal court, and
they ask the Court to remand the case to Tulsa County
District Court. Defendant Ford Motor Company (Ford) responds
that plaintiffs are engaging in blatant forum shopping and
that plaintiffs have fraudulently joined two non-diverse
defendants in an attempt to defeat federal subject matter
Richardson was employed by Cudd Pressure Control, Inc.
(Cudd), and Richardson was and his wife is a citizen of Texas
for the purpose of diversity jurisdiction. Dkt. # 1-1, at 2,
4. On November 25, 2014, Richardson was a passenger in a
company-owned vehicle, which had been purchased from
Ballard's of Clinton d/b/a McKinsey Motor Company
(McKinsey). Id. at 4. Cudd employee Randy Roddy was
driving the vehicle, and plaintiffs claim that the vehicle
rolled over and the occupant restraint system failed during
the accident. Id. at 4. Richardson was killed as a
result of the accident, and plaintiffs claim that Roddy and
Richardson were acting within the scope of their employment
at the time of the accident. Id. at 4-5. Plaintiffs
allege that the accident occurred in Campbell County,
Wyoming. Id. at 4.
has submitted evidence suggesting that Richardson's
estate has filed a claim for workers' compensation
benefits in North Dakota. Dkt. # 21-1. However, plaintiffs deny
that the estate has filed a workers' compensation claim
in North Dakota or that the estate has received workers'
compensation benefits in any state. Dkt. # 26, at 3. In
addition, plaintiffs have filed a lawsuit in Texas state
court alleging claims of negligence and gross negligence
against Cudd, and claims of manufacturer's products
liability, negligence, and gross negligence against Ford.
Dkt. # 21-2, at 7-11. The Texas lawsuit was filed in 2015. On
November 17, 2016, plaintiffs filed a second lawsuit in Tulsa
County District Court alleging claims of negligence and gross
negligence against Cudd, claims of manufacturer's
products liability, negligence, and gross negligence against
Ford, and a manufacturer's products liability claim
against McKinsey. The petition does not specify whether
Oklahoma law or the law of some other state applies to
plaintiffs' claims, and the state court has not made a
choice of law determination.
the case filed in Tulsa County District Court, Ford removed
the case to this Court on the basis of diversity
jurisdiction. Ford is incorporated in the state of Delaware
and has its principal place of business in Michigan.
Plaintiffs Keshia Porter Richardson, M.R., MA.R., and MY.R.
are citizens of Texas, and the decedent, Delandis Richardson,
was also a citizen of Texas. Dkt. # 1, at 4-5. Plaintiff
Jacqueline Richardson is a citizen of Florida, and plaintiff
Daryl Slate is a citizen of Tennessee. Id. at
5. Defendant Cudd is a citizen of Texas, and defendant
McKinsey is a citizen of Oklahoma. Ford argues that Cudd and
McKinsey have been fraudulently joined as parties, because
plaintiffs do not have viable claims against these defendants
under Oklahoma law. Id. at 6-12. Even if Oklahoma
law does not apply to plaintiffs' claims against Cudd,
Ford argues that plaintiffs' tort claims against Cudd are
barred by the workers' compensation laws of Texas,
Wyoming, or North Dakota. Plaintiffs have filed a motion to
remand (Dkt. # 12), arguing that Cudd and McKinsey are
properly joined as parties. According to plaintiffs, Texas
law provides an exception to the exclusive remedy provision
of its workers' compensation laws, and it is possible
that plaintiffs can recover against Cudd in tort as a matter
of Texas law. Dkt. # 12, at 11-15. Plaintiffs also argue Ford
has not conclusively established that McKinsey would be
entitled to an innocent seller defense under Okla. Stat. tit.
76, § 57.2, and it is possible that plaintiff could
recover against McKinsey.
ask the Court to remand this case to Tulsa County District
Court, because neither Cudd nor McKinsey has been
fraudulently joined and the Court lacks diversity
jurisdiction over this case. Ford responds that
plaintiffs' tort claims against Cudd are barred by the
exclusive remedy provisions of Oklahoma, Wyoming, North
Dakota, or Texas law, and plaintiffs have no possibility of
recovery against Cudd. Ford also argues that McKinsey is an
innocent seller as a matter of Oklahoma law, and
plaintiffs' manufacturer's products liability claim
against McKinsey is barred by § 57.2.
Supreme Court has recognized that a defendant's
“right of removal cannot be defeated by a fraudulent
joinder of a resident defendant having no real connection
with the controversy.” Wilson v. Republic Iron
& Steel Co., 257 U.S. 92, 97 (1921). Ford can prove
fraudulent joinder by showing that either: (1)
plaintiff's jurisdictional allegations are fraudulent and
made in bad faith; or (2) plaintiff has no possibility of
recovery against the non-diverse defendant. Slover v.
Equitable Variable Life Ins. Co., 443 F.Supp.2d 1272,
1279 (N.D. Okla. 2006). If Ford can show that the non-diverse
defendant, Cudd, was fraudulently joined, the parties will be
completely diverse and the Court may exercise subject matter
jurisdiction over this case. S e e American Nat. Bank
& Trust Co. of Sapulpa, v. Bic Corp., 931 F.2d 1411,
1412 (10th Cir. 1991) (“If, as defendant suggests,
plaintiffs joined the Oklahoma residents without good faith,
defendant may remove on the grounds of fraudulent
joinder.”). To prove that a party has been fraudulently
joined, the defendant has the burden to “demonstrate
that there is no possibility that [plaintiff] would be able
to establish a cause of action against [the joined party] in
state court.” Hart v. Bayer Corp., 199 F.3d
239, 246 (5th Cir. 2000). When a defendant raises specific
allegations of fraudulent joinder, the Court may pierce the
pleadings to evaluate the defendant's argument. Smoot
v. Chicago, Rock Island & Pac. R.R. Co., 378 F.2d
879, 881-82 (10th Cir. 1967); Dodd v. Fawcett
Publications, Inc., 329 F.2d 82, 85 (10th Cir. 1964).
“The burden of persuasion placed upon those who cry
‘fraudulent joinder' is indeed a heavy one.”
Hart, 199 F.3d at 246 (quoting B., Inc. v.
Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981)).
Although the Court can pierce the pleadings, “[t]his
does not mean that the federal court will pre-try, as a
matter of course, doubtful issues of fact to determine
removability; the issue must be capable of summary
determination and be proven with complete certainty.”
Smoot, 378 F.2d at 882.
parties' dispute as to the viability of plaintiffs'
claims against Cudd depends upon the choice of law
determination. Plaintiffs have not alleged an intentional
tort against Cudd, and they do not dispute that a negligence
claim of any variety would be barred by the exclusive remedy
provisions of Oklahoma, Wyoming, and North Dakota
workers' compensation law. In order to proceed with a
tort claim against Cudd, plaintiffs will have to establish
that their claims against Cudd are governed by Texas law.
Under Texas law, workers' compensation is the exclusive
remedy for an employee alleging that he suffered a
work-related injury. Tex. Labor Code Ann. § 408.001.
However, § 408.001 “does not prohibit the recovery
of exemplary damages by the surviving spouse or heirs of the
body of a deceased employee whose death was caused by an
intentional act or omission of the employer or by the
employer's gross negligence.” Id.
Plaintiffs have alleged that Cudd acted with negligence and
gross negligence by allowing Roddy to drive a company
vehicle. Dkt. # 1-1, at 5-6. Plaintiff's ordinary
negligence claim against Cudd is barred by § 408.001
but, if the Court were to find that Texas law applied, it is
possible that plaintiff could proceed with a gross negligence
claim against Cudd. Plaintiffs' negligence and gross
negligence claims are identical in the Texas lawsuit and this
case, and this could be viewed as an indication that
plaintiffs are seeking to have Texas law applied to their
claims against Cudd in this case. However, plaintiffs'
intention concerning the choice of law is not a deciding
factor in the choice of law analysis.
making a choice of law determination in a diversity case,
this Court must apply the choice of law rules that would be
applicable in the courts of the forum state. Garcia v.
Int'l Elevator Co., Inc., 358 F.3d 777, 779 (10th
Cir. 2004); New York Life Ins. Co., v. K N Energy,
Inc., 80 F.3d 405, 409 (10th Cir. 1996). The Oklahoma
Supreme Court has stated that “the rights and
liabilities of parties with respect to a particular issue in
tort should be determined by the local law of the state
which, with respect to that issue, has the most significant
relationship to the occurrence and the parties.”
Hightower v. Kansas Southern Ry. Co., 70 P.3d 835,
842 (Okla. 2003). In applying the “most significant
relationship” test, a court must consider the following
(1) the place where the injury occurred,
(2) the place where the conduct causing the injury occurred,
(3) the domicile, residence, nationality, place of
incorporation and place of business ...