                                   REVISED
                   United States Court of Appeals,

                             Fifth Circuit.

                              No. 96-40883.

 Jesus RODRIGUEZ; Maria Rodriguez;         Jesus Reyes;    Yolanda Reyes,
Plaintiffs-Appellants,

                                     v.

 Anthony SABATINO; Sonja Sosa; Borg-Warner Protective Services
Corporation doing business as Wells Fargo Guard Services,
Defendants-Appellees.

                             Sept. 3, 1997.

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

Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.

     PER CURIAM:

     The district court denied the plaintiffs' motion to remand

because   it   determined   that    they   had   fraudulently    joined   two

defendants.    Hence, it had diversity jurisdiction under 28 U.S.C.

§   1332(a).     Subsequently,      the    district   court     granted   the

defendants' summary judgment motion, dismissing the plaintiffs'
complaint.     On appeal, the plaintiffs contend that the district

court lacked subject matter jurisdiction over their case.                  We

affirm.

                                      I

     On December 12, 1992, Maria Reyes ("Maria"), Jorge Rodriguez

("Jorge"), and Francisco Sanchez went to a quincinera hosted by

Maria and Mario Mora at the Magnolia Civic Center, a property owned

by the City of Houston.     The quincinera lasted from about 8:00 p.m.

                                      1
until 12:00 a.m. Borg-Warner Protective Services, Inc. d/b/a Wells

Fargo Guard Services ("Wells Fargo") provided security for the

event pursuant to a contract between Wells Fargo and the City of

Houston.    Wells Fargo assigned one of its employees, Sonia Sosa, a

citizen of Texas, to work as a security guard at the party.               As

part   of   her   duties,   Sosa   patrolled   the   building    to   prevent

vandalism and watched over the parking lot to thwart automobile

thefts.     She did not check the identification of anyone consuming

alcohol at the party or otherwise monitor the serving of alcohol

there.

       There was apparently some underage drinking at the quincinera.

Mario Mora admitted, for instance, that he "sneaked" two cups of

beer to Sanchez around 10:30 p.m.         At midnight, the party moved

over to the Mora residence.        Sanchez, Jorge, and others consumed

alcohol there with Mario Mora.

       After spending a couple of hours at the Mora residence,

Sanchez, Jorge, Maria, Angelica Aguilar, Oscar J. Medina, and

Martha Perez left in Sanchez's pickup truck. At approximately 4:24

a.m., Sanchez's truck jumped the curb, spun up an embankment, and

smashed into the underside of a highway overpass.               Everyone was

killed, except for Perez.      Police officers at the scene found beer

cans in the car and noticed that the vehicle emitted a strong odor

of alcohol.

       The Texas Alcoholic Beverage Commission ("TABC") investigated

the accident.      It filed charges against Mario Mora for making

alcohol available to minors but not against Sosa, Wells Fargo, or


                                      2
the City of Houston.

     After the accident, Jorge and Maria's respective parents,

citizens of Texas, filed a complaint in state court against Wells

Fargo, Sosa, and, Sosa's supervisor, Anthony Sabatino,1 alleging,

among other things, that all three were citizens of Texas.       The

defendants removed the case to federal district court, and then the

plaintiffs moved to remand.

     The district court determined that Wells Fargo was not a

citizen of Texas, and that Sabatino and Sosa had been fraudulently

joined.    Because complete diversity existed, the court denied the

plaintiffs' motion to remand.   The plaintiffs then filed a writ of

mandamus in this court, arguing that the district court erred.    We

denied the writ.     Subsequently, the district court granted the

defendants' motion for summary judgment, dismissing the plaintiffs'

complaint.

     On appeal, the plaintiffs contend that the district court

erred in determining that they fraudulently joined Sosa and thus in

concluding that it had subject matter jurisdiction under 28 U.S.C.

§ 1332(a).

                                 II

         We review de novo a denial of remand to state court.    Sid

     1
      Apparently, Sabatino worked in Wells Fargo's Metuchen, New
Jersey office at the time of the accident. In May 1994—a year and
a half after the accident—Wells Fargo transferred him to its
Houston office.

          The plaintiffs do not discuss Sabatino at all in their
     brief. Clearly, he has nothing to do with this case. Thus,
     we will limit our analysis in this opinion to the issue of
     whether the plaintiffs fraudulently joined Sosa.

                                  3
Richardson Carbon & Gasoline Co. v. Interenergy Resources, Ltd., 99

F.3d 746, 751 (5th Cir.1996).               A party invoking the removal

jurisdiction of the federal courts bears a heavy burden.                Id. To

prove that non-diverse parties have been fraudulently joined in

order to defeat diversity, the removing party must demonstrate

either    "outright   fraud      in    the     plaintiff's      recitation    of

jurisdictional facts," Burden v. General Dynamics Corp., 60 F.3d

213,   217   (5th   Cir.1995),    or       that   "there   is   absolutely    no

possibility that the plaintiff will be able to establish a cause of

action against the in-state defendant in state court."               Cavallini

v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir.1995).

The defendants do not allege outright fraud, so only the second

rule is at issue here.        In this regard, we "evaluate all of the

factual allegations in the plaintiff's state court pleadings in the

light most favorable to the plaintiff, resolving all contested

issues of substantive fact in favor of the plaintiff" and "examine

relevant state law and resolve all uncertainties in favor of the

nonremoving party."     Green v. Amerada Hess Corp., 707 F.2d 201,

205-06 (5th Cir.1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 701,

79 L.Ed.2d 166 (1984).

         In evaluating a claim of fraudulent joinder, we do not

determine whether the plaintiff will actually or even probably

prevail on the merits of the claim, but look only for a possibility

that the plaintiff may do so.               Burden, 60 F.3d at 216.          The

question, then, is simply whether the defendant can show that no

possibility exists that the plaintiffs have stated a claim against


                                       4
Sosa.

        The Texas Supreme Court has stated that common-law negligence

"consists of three essential elements—a legal duty owed by one

person to another, a breach of that duty, and damages proximately

resulting from the breach."     El Chico Corp. v. Poole, 732 S.W.2d

306, 311 (Tex.1987).    "Duty is the threshold inquiry ...," and the

"foremost and dominant consideration" in determining whether a duty

exists is the "foreseeability of the risk."       Id.   An alcoholic

beverage licensee, for instance, has a duty not to serve alcohol to

an intoxicated person whom the licensee knows will probably drive

a car.    Id. Also, a person has a duty to take affirmative action to

control or avoid increasing the danger from another's conduct which

the actor has at least partially created.      Id. The general rule,

though, is that a person is under no duty to control the conduct of

another, even if he has the practical ability to exercise such

control.     Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309

(Tex.1983).

         In this case, the evidence indicates that Sanchez had been

drinking a little at the quincinera and that Mario Mora sneaked him

two beers there.    In contrast, Sosa was not serving alcohol or even

checking identification.     While Sosa testified that she observed

underage drinking and stopped at least one minor from drinking,

there is no indication that her job required her to prevent such

conduct.

     In addition, we do not think that the evidence demonstrates

that Sosa even partially increased the danger that Sanchez would


                                   5
crash his truck, killing himself and four others.             First, Mario

Mora has admitted sneaking Sanchez two beers.           In fact, the TABC

actually   charged   Mora   with   violating    §   106.06   of    the   Texas

Alcoholic Beverage Code by giving beers to minors.                Conversely,

Sosa did nothing to facilitate underage drinking.                 Second, the

accident did not occur until almost four-and-a-half hours after

Sanchez left the quincinera, and there is proof that Sanchez was

drinking at the Mora residence during at least part of this period.

Given the fact that Sosa locked up the Magnolia Civic Center

shortly after midnight, effectively ending the quincinera, we do

not think that she did anything or failed to do anything that

contributed to the 4:24 a.m.       crash.      Sosa had no common-law or

other duty to Maria or Jorge, the exercise of which would have

prevented this tragedy.

     Because Sosa lacked a duty to Maria or Jorge, absolutely no

possibility exists that the plaintiffs can state a claim against

Sosa. Therefore, the defendants have shown that the plaintiffs

fraudulently joined Sosa. Accordingly, there is complete diversity

in this case and the district court had subject matter jurisdiction

under 28 U.S.C. § 1332(a).

     AFFIRMED.




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