     Case: 17-40825     Document: 00514749963   Page: 1   Date Filed: 12/06/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                       FILED
                                 No. 17-40825                  December 6, 2018
                                                                 Lyle W. Cayce
OSCAR CUMPIAN,                                                        Clerk


             Plaintiff - Appellant

v.

ALCOA WORLD ALUMINA, L.L.C.; STEPHEN ALVARADO; PALACIOS
MARINE & INDUSTRIAL COATINGS, INCORPORATED,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JONES, CLEMENT, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      The plaintiff appeals from a summary judgment dismissing his suit. The
threshold question presented is whether the district court properly denied the
motion to remand this action to state court due to the absence of diversity
jurisdiction. There was error. We VACATE the judgment and REMAND with
instructions that the district court remand the case to state court.


                      FACTS AND PROCEDURAL HISTORY
      The plaintiff, Oscar Cumpian, appellant here, brought suit for negligence
in Texas state court against three defendants. One is Alcoa World Alumina,
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L.L.C., whose citizenship is determined by that of its members. Tewari De-Ox
Sys., Inc. v. Mountain States/Rosen, Ltd. Liab. Corp., 757 F.3d 481, 483 (5th
Cir. 2014). In its notice of removal, Alcoa identified five members — three
corporations and two other entities — and stated they were citizens of
Delaware, Florida, North Carolina, Pennsylvania, and Australia. We find no
dispute as to that citizenship. The other defendants, Stephen Alvarado and
Palacios Marine & Industrial Coatings, Inc. (“PMIC”), were alleged to be Texas
citizens. Alvarado has been dismissed from the suit. The plaintiff Cumpian is
a resident of Texas.
      Alcoa owns a plant in Port Comfort, Texas where it produces alumina.
That product is used to make finished aluminum alloy. Alcoa uses caustic
liquids, which Cumpian labels “Caustic Liquor,” in the process of making
alumina. Alcoa employs safety practices to “verify that equipment is ready for
maintenance by ensuring it is properly drained or cleared of” Caustic Liquor.
The verification is represented by a pink tag, indicating that the equipment
has been drained of all Caustic Liquor. That process is referred to both as
Tag/Lock/Verify (“TLV”) and as lockout/tagout. Alcoa employees are the only
individuals permitted to perform TLV. In particular, contractors at the plant
are not permitted to do so. Cumpian’s complaint, though, alleges that at the
time of the emergency underlying his claim, PMIC was assigned the task of
ensuring the tank in question was cleared of Caustic Liquor.
      On August 6, 2014, there was a large spill of Caustic Liquor in the Port
Comfort plant’s tank farm.      Cumpian and other employees from Turner
Industries (a contractor) were instructed to assist in the cleanup of the Caustic
Liquor. Cumpian was first told to help another contractor vacuum up spilled
Caustic Liquor from the ground and walkways into the tank farm. Thereafter,
a Turner supervisor informed Cumpian in a meeting that he and three others
would begin replacing metal disks called “blinds” that were inserted at
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                                       No. 17-40825
different locations along the pipes and, depending on their design, either
blocked or directed the flow. 1 In order to remove and replace the blinds, a
flange had to be opened. Cumpian testified that he and his team started
changing blinds where there were pink tags.
       At one point, Cumpian was standing beneath a pipe that a pink tag
indicated had been drained of Caustic Liquor. One of his co-workers pried open
the flange to access the blind. Caustic Liquor was in fact in the pipe. It ran
out and onto Cumpian’s right arm and leg, causing chemical burns requiring
hospital treatment.
       Cumpian filed suit in Texas state court on October 8, 2015, alleging
claims for negligence against Alcoa, Alvarado, and PMIC. Alcoa removed the
case to federal court on November 6, 2015, asserting diversity jurisdiction
under 28 U.S.C. § 1332(a), and claiming that Alvarado and PMIC had been
improperly joined. On December 28, Cumpian filed a motion for remand,
arguing that Alcoa failed to establish Cumpian’s citizenship and that PMIC
had not been improperly joined.            The district court denied the motion on
January 7, 2016, finding that PMIC was not a proper party because the court
could not “reasonably predict that Cumpian will recover” from it.
       On August 2, 2017, the district court issued a brief opinion that granted
summary judgment to Alcoa.             The district court also found Cumpian had
articulated “no facts” as to PMIC or Alvarado, therefore dismissing them for
“failure to state a claim.”        On August 2, 2017, the district court entered
judgment that Cumpian take nothing. The next day, Cumpian filed a notice of
appeal.



       1A “slip blind” is a solid disk that shuts off the flow in a pipe. A “Dutchman blind” is
a disk with a hole in the middle that allows for a flow. Cumpian believed that he and the
other workers were swapping blinds to allow for Caustic Liquor to flow out of some of the
tanks that had overflowed.
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      On appeal, Cumpian challenges the district court’s refusal to remand
and its grant of summary judgment to Alcoa. Cumpian claims that the district
court erred by applying the wrong test for improper joinder, and that the case
should have been remanded to state court for lack of diversity jurisdiction.
Cumpian also presents issues on the merits of the summary judgment.
Because we conclude that the court erred in its refusal to remand the case to
state court, we do not reach these other issues.


                                 DISCUSSION
      Joinder of a party solely for the purpose of blocking jurisdiction based on
diversity may be established by showing (1) actual fraud in the pleadings or (2)
the “inability of the plaintiff to establish a cause of action against the
nondiverse party in state court.” Davidson v. Georgia-Pacific, L.L.C., 819 F.3d
758, 765 (5th Cir. 2016) (quoting Mumfrey v. CVS Pharmacy, Inc., 719 F.3d
392, 401 (5th Cir. 2013)). Actual fraud has not been claimed. At issue here is
the second situation, which nonetheless is also labeled, at times, “fraudulent
joinder.” See Travis v. Irby, 326 F.3d 644, 648 (5th Cir. 2003). We will instead
use the term “improper joinder.” Our issue “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.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568,
573 (5th Cir. 2004) (en banc).
      Here, the district court held there was improper joinder. We give de novo
review to that decision. Davidson, 819 F.3d at 765. On a motion to remand,
the burden of persuasion is on the party claiming improper joinder. We view
“all unchallenged factual allegations, including those alleged in the complaint,
in the light most favorable to the plaintiff.” Travis, 326 F.3d at 649. Indeed,
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our initial focus must be on the complaint. Mumfrey, 719 F.3d at 401. The
court should apply a Federal Rule of Civil Procedure 12(b)(6) standard; if the
complaint is sufficient to state a claim, there is no improper joinder. Id.
      Alcoa argues we should move beyond a review of the complaint alone.
When removing this case to federal court, it claimed PMIC, the non-diverse
party, was improperly joined. Alcoa invokes this analysis: “where a complaint
states a claim that satisfies 12(b)(6) but has ‘misstated or omitted discrete facts
that would determine the propriety of joinder . . . the district court may, in its
discretion, pierce the pleadings and conduct a summary inquiry.’” Id. (quoting
Smallwood, 385 F.3d at 573). The summary inquiry determines if there are
“discrete and undisputed facts that would preclude plaintiff’s recovery against
the in-state defendant.” Smallwood, 385 F.3d at 573-74 (emphasis added).
The court is to analyze “whether the defendant has demonstrated that there is
no possibility of recovery.” Id. at 573. The district court took the step of looking
beyond the pleadings and concluded there was improper joinder.
      Using that framework, we first review the allegations in the complaint
to see if Cumpian alleged sufficient facts to state a plausible claim for relief
against PMIC. We review these allegations in the light most favorable to
Cumpian, adopting inferences in his favor. See Davidson, 819 F.3d at 765.
Cumpian alleges that PMIC was a contractor that worked at the Alcoa Port
Comfort facility with the duties of “monitoring, maintaining, draining and
clearing tanks and blinds.” Cumpian alleges that at the time of the accident,
PMIC was working at the facility on storage tanks and was assigned the task
of draining the subject tank or blind and clearing it of hazardous substances.
Cumpian alleges he was injured because a tank that still contained Caustic
Liquor had been tagged as being cleared. Cumpian specifically alleges that
PMIC failed “properly [to] isolate and drain the subject tank and/or blind” and
failed to “warn [Cumpian] of the dangerous condition.”
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                                 No. 17-40825
      Alcoa does not argue here that Cumpian’s complaint fails to state a claim
upon which relief could be granted. In the absence of any contrary argument,
we therefore hold that Cumpian has stated a claim upon which relief could be
granted. Instead, Alcoa devotes its argument to the evidence produced during
the summary inquiry. We must decide if the evidence demonstrated that
Cumpian had “no possibility of recovery.” Id. at 766.
      The district court’s assessment of the evidence was that “Cumpian does
not show facts to support that . . . [PMIC] owed him a duty.” The district court
seemingly relied in part on Alcoa’s declaration, which stated that contractors
are not permitted to perform TLV, i.e., the examination of the pipes for Caustic
Liquor. That means, Alcoa argues on appeal, that Cumpian had no evidence
that PMIC performed any role in the allegedly negligently tagged pipe that
actually contained Caustic Liquor. PMIC therefore owed no duty to Cumpian,
and Cumpian could not recover from PMIC.
      On a question of improper joinder at the early stage of a case, it is error
to use the no-evidence summary judgment standard because the determination
is being made before discovery has been allowed. Id. Instead, the evidence
that is dispositive on the Smallwood inquiry are the facts that could be easily
disproved if not true. Id. To prevail on its improper joinder claim, a “defendant
must put forward evidence that would negate a possibility of liability on the
part of [the nondiverse defendant].” Id. at 767 (quoting Travis, 326 F.3d at
650) (emphasis added) (modifications in original).          Cumpian’s lack of
affirmative evidence is not fatal to his claim against PMIC at the improper-
joinder stage. Alcoa had the burden.
      To be clear, Alcoa’s affidavit stated that no contractor was permitted to
conduct TLV, including PMIC. It also stated that Cumpian’s claim that PMIC
performed TLV was “false.” A conclusory statement that a claim is false,
though, is not a “discrete and undisputed fact[].” Smallwood, 385 F.3d at 573.
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When analyzing whether a discrete and undisputed fact precludes the
possibility of recovery, we are mindful of what Smallwood identified as the
prototypical cases: “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.” Id. at 574 n.12.
Alcoa has done no more than present evidence that it prohibits contractors like
PMIC from performing TLV.        Such prohibitions at this point in the case,
though, simply indicate the standard rules of the workplace.               Policies,
guidelines, or any number of restrictions might be ignored, particularly in
emergency situations.    Alcoa’s claim that contractors are “not allowed” to
perform TLV is not comparable to the examples in Smallwood, such as a
doctor’s never having treated a plaintiff.
      It was Alcoa’s burden to negate the possibility that PMIC’s negligence
contributed to Cumpian’s injuries. Its affidavit failed to do so. We conclude
that PMIC was not improperly joined, and the parties are not completely
diverse. The district court lacked jurisdiction.
      We VACATE the judgment of the district court and REMAND to that
court with instructions to remand the case to the Texas state court from which
it came.




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