Trial News

Based on a finding of lack of diversity jurisdiction, the Fifth Circuit has sent a Texas chemical plant workplace negligence claim back to state court. The court ruled that the district court had incorrectly applied the “no-evidence” summary judgment standard in determining improper joinder of a Texas-based defendant allegedly negligent in the plant’s safety procedures, which contributed to the plaintiff’s chemical burns. (Cumpian v. Alcoa World Alumina, L.L.C., 2018 WL 2943500 (5th Cir. Dec. 6, 2018).)

While working as a contractor at Alcoa’s alumina plant in Port Comfort, Texas, in 2014, Oscar Cumpian was assigned to remove and replace metal disk “blinds” in plant tank pipes marked as having been drained of caustic liquor. However, caustic liquor was present in a pipe marked as drained and ran out onto Cumpian’s right arm and leg as he began to replace a blind. He sustained chemical burns and was hospitalized.

According to Cumpian, Texas-based Palacios Marine & Industrial Coatings, Inc. (PMIC), a contactor of Alcoa, was assigned to clear the caustic liquor from the relevant tank area pipes prior to the maintenance work. Cumpian asserted that PMIC marked the pipes as drained and cleared of caustic liquor with pink tags as part of the plant’s tag/lock/verify procedures. This contradicts Alcoa’s stated policy of allowing only plant employees, not contractors like PMIC, to perform tag/lock/verify tasks.

In 2015, Cumpian filed suit in Texas state court against Alcoa, PMIC, and one additional Texas-based party who was dismissed from the suit. Alcoa removed the case to federal court, asserting that PMIC was joined solely to destroy diversity jurisdiction. It argued that PMIC, a contractor, could not have had any role in tagging the pipes because this violated the plant’s policy. Alcoa also claimed that Cumpian had no evidence that PMIC performed the tagging.

Looking beyond the plaintiff’s pleadings to Alcoa’s attestation that contractors are not permitted to perform tag/lock/verify tasks, the district court believed that Cumpian’s claim that PMIC performed these tasks was false. It relied on Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568 (5th Cir. 2004), in which the Fifth Circuit used as a fraudulent joinder test whether there was a reasonable basis for the district court to predict that the plaintiff may be able to recover from the in-state defendant. Applying this “no-evidence” summary judgment standard, the district court agreed with Alcoa, ruling that because Cumpian could not reasonably recover from PMIC, joinder was improper.

The plaintiff appealed, and on de novo review, the Fifth Circuit focused first on the adequacy of the initial complaint against PMIC based on Federal Rule of Civil Procedure 12(b)(6). Citing Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392 (5th Cir. 2013), which held that joinder is not improper when the compliant sufficiently states a claim against the relevant party, the court found that Cumpian adequately stated a negligence claim against PMIC upon which relief could be granted.

The Fifth Circuit rejected the district court’s use of the no-evidence summary judgment standard. It found that Alcoa’s attestation that PMIC performing the tag/lock/verify tasks contradicts policy is not comparable to the circumstances in Smallwood. The court in Smallwood identified specific examples of fraudulent joinder when no-evidence summary judgment applies, such as cases when “the in-state doctor defendant did not treat the plaintiff patient, the in-state pharmacist defendant did not fill a prescription for the plaintiff patient, [or] a party’s residence was not as alleged.”

The Fifth Circuit held that Alcoa’s stated policy was insufficient to negate Cumpian’s assertion that PMIC had performed the tag/lock/verify tasks. The court remanded the case to Texas state court, finding that the federal court lacked diversity jurisdiction.

“We were extremely pleased with the Fifth Circuit’s decision and believe the court sent a strong message that cases should not be pre-judged based solely on the allegations of one, interested party,” said Cumpian’s attorney, Adam Voyles, of Houston. “Injured workers are rarely privy to the true catalyst of their injuries and allowing defendants to use the removal statute to deny and/or delay victims their day in court does not serve the public at large. Lawsuits are an effective tool in encouraging industrial employers to implement safety programs and training that make jobs safer for all of us.”