     Case: 15-30741      Document: 00513547200         Page: 1    Date Filed: 06/14/2016




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

                                                                                    FILED
                                      No. 15-30741                                June 14, 2016
                                                                                  Lyle W. Cayce
                                                                                       Clerk
JODY WRIGHT, individually and on behalf of Brandy Wright; CLAY
BRELAND, individually and on behalf of Kylie Breland, Kaitlyn Breland;
CHRISTOPHER BRELAND; SHAWN EDMONDS; TAMMY EDMONDS,
individually and on behalf of Kelsie Edmonds, Matt Edmonds, et al.,

              Plaintiffs–Appellants,

v.

ANR PIPELINE COMPANY; TRANSCANADA USA PIPELINE SERVICES,
L.L.C., also known as TransCanada; BILLY LUCKY,

              Defendants–Appellees.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:10-CV-925


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiffs–Appellants       sued    Defendants−Appellees          ANR      Pipeline
Company       (“ANR”),      TransCanada         USA      Pipeline     Services,     L.L.C.
(“TransCanada”), and Billy Lucky in Louisiana state court. ANR and
TransCanada, which are not Louisiana citizens, removed the case to federal
court on the basis of diversity, arguing that Lucky, who is a citizen of



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 15-30741
Louisiana, had been improperly joined. The district court agreed, denied
Plaintiffs’ motion to remand, and dismissed Lucky from the suit with
prejudice. 1
      Federal diversity jurisdiction ordinarily requires complete diversity of
the parties. Flagg v. Stryker Corp., No. 14-31169, 2016 WL 1169067, at *2 (5th
Cir. Mar. 24, 2016) (en banc). “However, if the plaintiff improperly joins a non-
diverse defendant, then the court may disregard the citizenship of that
defendant, dismiss the non-diverse defendant from the case, and exercise
subject matter jurisdiction over the remaining diverse defendant[s].” Id. We
review the dismissal of a defendant as improperly joined de novo. Kling Realty
Co. v. Chevron USA, Inc., 575 F.3d 510, 513 (5th Cir. 2009).
      We assume the parties are familiar with the facts and thus move directly
to the issue of whether the district court correctly determined that there was
no possibility of recovery against Lucky. See Smallwood v. Ill. Cent. R.R. Co.,
385 F.3d 568, 573 (5th Cir. 2004) (en banc) (providing that a defendant may be
dismissed as improperly joined when “there is no reasonable basis for the
district court to predict that the plaintiff might be able to recover against an
in-state defendant”). Having carefully reviewed the facts and arguments, we
conclude that the district court did not err in holding that there was no
possibility of finding Lucky personally liable pursuant to the Louisiana
Supreme Court’s opinion in Canter v. Koehring Co., 283 So. 2d 716 (La. 1973).
      The evidence fails to raise a genuine dispute of material fact as to
whether ANR and TransCanada delegated a duty to Lucky. As we held in
Anderson v. Ga. Gulf Lake Charles, LLC, 342 F. App’x 911, 918−19 (5th Cir.
2009) (per curiam), Plaintiffs’ reliance on Lucky’s job titles and general job



      1  The district court also dismissed Plaintiffs Shawn Edmonds, Tammy Edmonds,
Kelsie Edmonds, and Matt Edmonds for failing to comply with discovery orders. Plaintiffs do
not challenge these dismissals in their briefing on appeal and have thus waived this issue.
See United States v. Whitfield, 590 F.3d 325, 346 (5th Cir. 2009).
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                                  No. 15-30741
description are insufficient to establish delegation. Conversely, Lucky’s
testimony illustrates that he was a hourly employee, only performed work as
directed through work orders, did not have any management or supervisory
responsibilities, and was never told by ANR or TransCanada that he was
personally responsible for the Jena compression station.
      Plaintiffs also failed to raise a genuine dispute of fact that Lucky’s
personal negligence was the cause of their alleged injuries. As the district court
correctly found, the evidence shows that Lucky neither knew nor should have
known of the defect that caused liquid to condense in the Jena compression
station’s pipes or that there was any solution that might have prevented this
occurrence. Moreover, Plaintiffs’ reliance on Ford v. Elsbury, 32 F.3d 931 (5th
Cir. 1994), is misplaced. Unlike the case at hand, the individual employee in
Ford was the manager of the facility, and the evidence demonstrated that he
knew of the particular risk. See id. at 938–39.
      Finally, Plaintiffs’ allegations are based entirely on Lucky’s general
administrative responsibilities. This is insufficient to establish personal
liability under Louisiana law. See Canter, 283 So. 2d at 721 (“[P]ersonal
liability cannot be imposed upon the . . . employee simply because of his general
administrative responsibility for performance of some function of the
employment.”); Carino v. Wal-Mart La., LLC, No. CIV.A. 05-1978, 2006 WL
335784, at *3 (W.D. La. Feb. 9, 2006).
      While we agree that Lucky was properly dismissed, we disagree with the
manner in which the district court dismissed him. “Since the purpose of the
improper joinder inquiry is to determine whether or not the in-state defendant
was properly joined, the focus of the inquiry must be on the joinder . . . .”
Smallwood, 385 F.3d at 573. “[T]he court does not have the authority to do
more; it lacks the jurisdiction to dismiss the case on its merits.” Id. at 576.
Because this inquiry does not concern the merits, where the court determines
that a defendant has been improperly joined and should be dismissed, that
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                                  No. 15-30741
dismissal must be without prejudice. Int’l Energy Ventures Mgmt., L.L.C. v.
United Energy Grp., Ltd., 818 F.3d 193, 210 (5th Cir. 2016). Here, however, the
district court dismissed Lucky with prejudice. Because the district court did
not have jurisdiction to dismiss Lucky with prejudice, we VACATE its order
dismissing Lucky from the suit with prejudice and REMAND with instruction
that Lucky be dismissed without prejudice. We AFFIRM the other orders
identified in Plaintiffs’ Notice of Appeal.




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