Opinion
CIVIL ACTION NO. 1:13-CV-172
04-10-2013
NATIONAL PUMP & COMPRESSOR, LTD., Plaintiff, v. BUD A. NICHOLS, MERSINO DEWATERING SOUTHWEST, LLC a/k/a GLOBAL PUMP and d/b/a GLOBAL PUMP SOUTHWEST, MERSINO DEWATERING, INC. a/k/a GLOBAL PUMP, and MERSINO MANAGEMENT COMPANY, INC., Defendants.
MEMORANDUM AND ORDER
Pending before the court is Plaintiff National Pump & Compressor, Ltd.'s ("National Pump") Emergency Motion to Remand (#6). National Pump seeks remand to state court on the basis of the lack of complete diversity of citizenship between the parties, rendering this court without subject matter jurisdiction. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that remand is warranted.
I. Background
On March 12, 2013, National Pump filed its Application for a Temporary Restraining Order, Temporary Injunction, and Permanent Injunction and Plaintiff's First Amended Petition ("application and petition") in the 136th Judicial District Court of Jefferson County, Texas. National Pump asserts claims against Defendants for misappropriation of Confidential Information and trade secrets, tortious interference with a contract, tortious interference with existing and prospective business relations, and civil conspiracy. It is undisputed that Plaintiff National Pump is a Texas limited partnership with its principal place of business in Beaumont, Texas. Defendant Bud A. Nichols ("Nichols") is a resident and citizen of Maryland. Defendants Mersino Dewatering, Inc., and Defendant Mersino Management Company, Inc. ("the Mersino Michigan Defendants"), are Michigan corporations with their principal places of business in Michigan. Finally, Defendant Mersino Dewatering Southwest, LLC ("Mersino SW"), is a Texas limited liability company.
On March 22, 2013, National Pump filed an amended application and petition in state court.
Hereinafter, Nichols and the Mersino Michigan Defendants are referred to as "Removing Defendants."
On March 26, 2013, Defendants removed the case to this court on the basis of diversity of citizenship, alleging that complete diversity exists among the real parties in interest and that the amount in controversy exceeds $75,000.00, exclusive of interest and costs. In addition, Removing Defendants assert that because Mersino SW was fraudulently joined as a defendant to defeat diversity, it should be dismissed as a party to this action and its citizenship ignored for jurisdictional purposes. On April 2, 2013, National Pump filed the instant motion to remand the case to state court, contending that Mersino SW is properly joined, and, therefore, because complete diversity does not exist among the parties, federal jurisdiction is lacking.
II. Analysis
"'Federal courts are courts of limited jurisdiction.'" Rasul v. Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); accord Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d 290, 292 (5th Cir. 2010); Johnson v. United States, 460 F.3d 616, 621 n.6 (5th Cir. 2006); McKee v. Kan. City S. Ry. Co., 358 F.3d 329, 337 (5th Cir. 2004). "'They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.'" Rasul, 542 U.S. at 489 (quoting Kokkonen, 511 U.S. at 377 (citations omitted)). The court "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993 (2001) (citing Kokkonen, 511 U.S. at 377); see also Hertz Corp. v. Friend, 559 U.S. 77, _, 130 S. Ct. 1181, 1194 (2010); Boone v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005). In an action that has been removed to federal court, a district court is required to remand the case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c); Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 571 (2004); In re 1994 Exxon Chem. Fire, 558 F.3d 378, 392 (5th Cir. 2009); McDonal v. Abbott Labs., 408 F.3d 177, 182 (5th Cir. 2005).
When considering a motion to remand, "[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); accord DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006); Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008); In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007); Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005); Boone, 416 F.3d at 388. "'This extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the requirements of the removal statute.'" Roth v. Kiewit Offshore Servs., Ltd., 625 F. Supp. 2d 376, 382 (S.D. Tex. 2008) (quoting Albonetti v. GAF Corp. Chem. Grp., 520 F. Supp. 825, 827 (S.D. Tex. 1981)); accord Crossroads of Tex., L.L.C. v. Great-West Life & Annuity Ins. Co., 467 F. Supp. 2d 705, 708 (S.D. Tex. 2006); Smith v. Baker Hughes Int'l Branches, Inc., 131 F. Supp. 2d 920, 921 (S.D. Tex. 2001). "Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing 28 U.S.C. § 1441(a)); see Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004); Halmekangas, 603 F.3d at 294; Gutierrez, 543 F.3d at 251. "The removal statute ties the propriety of removal to the original jurisdiction of the federal district courts." Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997); see 28 U.S.C. § 1441(a); Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 n.2 (5th Cir. 2003). Because removal raises significant federalism concerns, the removal statutes are strictly and narrowly construed, with any doubt resolved against removal and in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gutierrez, 543 F.3d at 251; Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007); In re Hot-Hed Inc., 477 F.3d at 323.
Federal courts have subject matter jurisdiction and are authorized to entertain causes of action only where a question of federal law is involved or where there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. See 28 U.S.C. §§ 1331, 1332; Arbaugh v. Y & H Corp., 546 U.S. 500, 513 (2006); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005); Halmekangas, 603 F.3d at 294; McDonal, 408 F.3d at 181. In order to determine whether jurisdiction is present in a removed action, the claims set forth in the state court petition are considered as of the date of removal. See Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 391 (1998); Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 n.2 (5th Cir. 2007); McGowin v. ManPower Int'l, Inc., 363 F.3d 556, 558 n.1 (5th Cir. 2004); Manguno, 276 F.3d at 723. In removed cases where, as here, there is no suggestion that a federal question is involved, subject matter jurisdiction exists only if there is complete diversity among the parties and the amount in controversy exceeds $75,000.00. See 28 U.S.C. § 1332; Lincoln Prop. Co., 546 U.S. at 89; Exxon Mobil Corp., 545 U.S. at 552; Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996); Halmekangas, 603 F.3d at 294; Heritage Bank v. Redcom Labs., Inc., 250 F.3d 319, 323 (5th Cir.), cert. denied, 534 U.S. 997 (2001). Complete diversity requires that no plaintiff be a citizen of the same state as any defendant. See Exxon Mobil Corp., 545 U.S. at 552; Caterpillar Inc., 519 U.S. at 68; Wallace v. La. Citizens Prop. Ins. Corp., 444 F.3d 697, 702 (5th Cir. 2006); Heritage Bank, 250 F.3d at 323. Furthermore, removal is appropriate only if none of the parties properly joined and served as defendants are citizens of the state in which the action was brought. See 28 U.S.C. § 1441(b); Lincoln Prop. Co., 546 U.S. at 89; Gasch, 491 F.3d at 281; Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 531-32 (5th Cir.), cert. denied, 548 U.S. 907 (2006).
In the case at bar, although there is no dispute that National Pump and the Mersino Michigan Defendants are citizens of different states and that more than $75,000.00 is at issue, complete diversity may be lacking in this case because Defendant Mersino SW is a citizen of Texas. Therefore, to establish the existence of diversity jurisdiction, Removing Defendants must show that Mersino SW was fraudulently or improperly joined as a defendant to this action. See Crockett, 436 F.3d at 532; Guillory, 434 F.3d at 307-08; Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 224-25 (5th Cir. 2005), cert. denied, 549 U.S. 811 (2006); Heritage Bank, 250 F.3d at 323; Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir. 2000). "The removing party bears the heavy burden of proving that non-diverse defendants have been fraudulently joined to defeat diversity, either by showing that (1) there has been outright fraud in the plaintiff's recitation of jurisdictional facts, or (2) there is no possibility that the plaintiff would be able to establish a cause of action against the non-diverse defendants in state court." Burden v. Gen. Dynamics Corp., 60 F.3d 213, 217 (5th Cir. 1995); accord Gasch, 491 F.3d at 281; Larroquette v. Cardinal Health 200, Inc., 466 F.3d 373, 376 (5th Cir. 2006); Holder v. Abbott Labs., Inc., 444 F.3d 383, 387 (5th Cir. 2006); Guillory, 434 F.3d at 308-09; McDonal, 408 F.3d at 183; Melder v. Allstate Corp., 404 F.3d 328, 330 (5th Cir. 2005); Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004), cert. denied, 544 U.S. 992 (2005).
A determination of improper joinder must be based on an analysis of the causes of action alleged in the complaint at the time of removal. See Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995); Hook v. Morrison Milling Co., 38 F.3d 776, 780 (5th Cir. 1994). Where the defendant maintains that federal jurisdiction is proper, the court must evaluate all 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 then examine relevant state law and resolve all uncertainties in favor of the nonremoving party. See Ross v. Citifinancial, Inc., 344 F.3d 458, 462-63 (5th Cir. 2003), cert. denied, 546 U.S. 813 (2005); Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003); Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002); Hart, 199 F.3d at 246. Furthermore, the "'court must normally assume all the facts as set forth by the plaintiff to be true.'" Burden, 60 F.3d at 217 (quoting Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983), cert. denied, 464 U.S. 1039 (1984)).
"A district court should ordinarily resolve [claims of] improper joinder by conducting a Rule 12(b)(6)-type analysis." McDonal, 408 F.3d at 183 n.6; see also Boone, 416 F.3d at 388 ("A motion to remand is normally analyzed with reference to the well-pleaded allegations of the complaint, which is read leniently in favor of remand under a standard similar to Rule 12(b)(6)."); Smallwood, 385 F.3d at 573. If a plaintiff can survive a Rule 12(b)(6)-type challenge, there is generally no improper joinder. Guillory, 434 F.3d at 309; Smallwood, 385 F.3d at 573. "That said, there are cases, hopefully few in number, in which the plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry." Smallwood, 385 F.3d at 573 (citing Badon v. RJR Nabisco Inc., 224 F.3d 382, 389 n.10 (5th Cir. 2000)); accord Guillory, 434 F.3d at 309. The court, however, must carefully distinguish an attack on the overall merits of the case from a showing that defendants were improperly joined in order to defeat diversity. See Smallwood, 385 F.3d at 573 ("[T]he focus of the inquiry must be on the joinder, not on the merits of the plaintiff's case."); see also Gasch, 491 F.3d at 284 ("[A] meritless claim against an in-state defendant is not the equivalent of improper joinder."); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 546 (5th Cir. 1981) ("[D]istrict courts must not 'pre-try' substantive factual issues in order to answer the discrete threshold question of whether the joinder of an in-state defendant is fraudulent.").
To prove the existence of improper joinder, the removing party must demonstrate that there is no possibility that the plaintiff could establish a cause of action against the non-diverse defendant in state court. In the instant case, because Removing Defendants do not claim actual fraud in Plaintiff's recitation of jurisdictional facts, they must demonstrate that there is no possibility that National Pump could establish a cause of action against Mersino SW. See Gasch, 491 F.3d at 281; Larroquette, 466 F.3d at 374; Holder, 444 F.3d at 387; Guillory, 434 F.3d at 308; Melder, 404 F.3d at 330; Smallwood, 385 F.3d at 573; Travis, 326 F.3d at 648; Great Plains Trust Co., 313 F.3d at 312. "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." Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir. 1997), cert. denied, 523 U.S. 1072 (1998); see Guillory, 434 F.3d at 308-09; Sid Richardson Carbon & Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 751 (5th Cir. 1996); Burden, 60 F.3d at 216. "'If that possibility exists, a good faith assertion of such an expectancy in a state court is not a sham . . . and is not fraudulent in fact or in law.'" B., Inc., 663 F.2d at 550 (quoting Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 177 (5th Cir. 1968)); accord Travis, 326 F.3d at 647. "This possibility, however, must be reasonable, not merely theoretical." Great Plains Trust Co., 313 F.3d at 312 (citing Badon v. RJR Nabisco Inc., 236 F.3d 282, 286 n.4 (5th Cir. 2000)); accord Boone, 416 F.3d at 388; Gray ex rel. Rudd v. Beverly Enters.-Miss., Inc., 390 F.3d 400, 405 (5th Cir. 2004); Travis, 326 F.3d at 648. "'If there is "arguably a reasonable basis for predicting that the state law might impose liability on the facts involved," then there is no fraudulent joinder,'" and the case must be remanded for lack of diversity. Great Plains Trust Co., 313 F.3d at 312 (quoting Badon, 236 F.3d at 286 (quoting Jernigan v. Ashland Oil Inc., 989 F.2d 812, 816 (5th Cir.), cert. denied, 510 U.S. 868 (1993))); see Gray, 390 F.3d at 402; Smallwood, 385 F.3d at 589-90; Sid Richardson Carbon & Gasoline Co., 99 F.3d at 751.
In assessing whether a plaintiff could possibly establish a claim against a non-diverse defendant, the court must apply the law of the state in which the action was brought—in this case, Texas. See Travis, 326 F.3d at 647; Hart, 199 F.3d at 247. "[W]hether the plaintiff has stated a valid state law cause of action depends upon and is tied to the factual fit between the plaintiff['s] allegations and the pleaded theory of recovery." Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999); see Burden, 60 F.3d at 218-21. Based on the court's research, the United States Court of Appeals for the Fifth Circuit has not resolved in a published decision the issue of whether to apply the federal 12(b)(6) standard or the more lenient Texas "fair notice" standard when evaluating the sufficiency of factual allegations for the purpose of determining improper joinder. Nonetheless, in Akerblom v. Ezra Holdings, Ltd., an unpublished case, the appeals court applied Texas pleading standards in an analysis of improper joinder. No. 12-20182, 2013 WL 363112, at *4, 7 (5th Cir. Jan. 28, 2013) ("[F]or determining improper joinder vel non, [plaintiff's] Texas state-court petition (complaint) is the primary document considered. A Texas state-court petition must "consist of a statement in plain and concise language of the . . . cause of action.") (citing TEX. R. CIV. P. 45(a) & (b)). District courts in Texas have differed regarding which standard to apply. Compare Escuadra v. Geovera Specialty Ins. Co., 739 F. Supp. 2d 967, 976-77 (E.D. Tex. 2010) (applying federal standard), and King v. Provident Life & Accident Ins. Co., 1:09-CV-983, 2010 WL 2730890, at *4 (E.D. Tex. June 4, 2010) (same), with Stevenson v. Allstate Tex. Lloyd's, No. 11-CV-3308, 2012 WL 360089, at *3 (S.D. Tex. Feb. 1, 2012) (applying Texas standard), and Hayden v. Allstate Tex. Lloyds, H-10-646, 2011 WL 240388, at *7-8 (S.D. Tex. Jan. 20, 2011). It appears, however, that the majority of district courts which have addressed this issue favor application of the state pleading standard. Edwea, Inc. v. Allstate Ins. Co., H-10- 2970, 2010 WL 5099607, at *5 (S.D. Tex. Dec. 8, 2010) (same). After reviewing these authorities, the court is persuaded that applying the state pleading standard is the better approach. Because Plaintiff filed its petition in state court in accordance with Texas pleading standards, it would be unfair to hold it to the more stringent standard of federal court. Centro Cristiano Cosecha Final, Inc., 2011 WL 240335, at *14; Edwea, Inc., 2010 WL 5099607, at *5-6. Accordingly, the court will examine Plaintiff's petition under the Texas pleading standard to determine whether the allegations therein support a reasonable basis for predicting recovery against Mersino SW, leaving any technical defects to be addressed in state court. See Murphy, 2009 WL 1543918, at *5.
See also Espinoza v. Companion Commercial Ins. Co., No. 7:12-CV-494, 2013 WL 245032, at *1 (S.D. Tex. Jan. 22, 2013); Moreno Energy, Inc. v. Marathon Oil Co., No. H-11-4518, 2012 WL 3205618, at *5 (S.D. Tex. Aug. 3, 2012); Garcia v. LG Elecs. USA Inc., No. B-11-61, 2011 WL 2517141, at *4 (S.D. Tex. June 23, 2011); D'Souza v. Peerless Indem. Ins. Co., H-10-4431, 2011 WL 285154, at *2 (S.D. Tex. Jan. 25, 2011); Centro Cristiano Cosecha Final, Inc. v. Ohio Cas. Ins. Co., H-10-1846, 2011 WL 240335, at *12-14 (S.D. Tex. Jan. 20, 2011); Rankin Rd., Inc. v. Underwriters at Lloyds of London, 744 F. Supp. 2d 630, 636 (S.D. Tex. 2010); Murphy v. Broyhill Indus., Inc., 3:08-CV-2092, 2009 WL 1543918, at *4-5 (N.D. Tex. June 2, 2009).
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Texas follows a "fair notice" pleading standard, which requires "a short statement of the cause of action sufficient to give fair notice of the claim involved . . . ." TEX. R. CIV. P. 47; Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004). The purpose of this standard is to provide the opposing party with sufficient information to prepare a defense. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 616 n.11 (Tex. 2004) (citing Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)). Under this standard, the court examines whether the opposing party can ascertain from the pleadings the nature, basic issues, and the type of evidence that might be relevant to the controversy. Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). "[T]he pleadings must be sufficiently adequate so the court is able, from an examination of the pleadings alone, to ascertain with reasonable certainty and without resorting to information from another source, the elements of a plaintiff's cause of action and relief sought with sufficient information upon which to base a judgment." UMLIC VP LLC v. T&M Sales & Envtl. Sys., Inc., 176 S.W.3d 595, 604 (Tex. App.—Corpus Christi 2005, pet. denied) (citing Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex. 1979)). Nevertheless, a pleading will be liberally construed in favor of the pleader, and the court should uphold the petition as to a cause of action that may be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged. Horizon/CMS Healthcare Corp., 34 S.W.3d at 897; Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993); see In re Enron Corp. Sec., Derivative & "ERISA" Litig., 388 F. Supp. 2d 780, 784 n.4 (S.D. Tex. 2005).
Here, Removing Defendants base their removal on the contention that Mersino SW is an improper party and is joined to defeat diversity jurisdiction. Removing Defendants assert that National Pump's primary allegations are that Nichols has taken subsequent employment and engaged in acts in direct violation of a non-compete and confidentiality agreement between him and National Pump but that National Pump fails to allege that Nichols is employed with Mersino SW or that Mersino SW "has done anything at all in connection with this matter." The court disagrees. National Pump's amended application and petition states that Mersino SW unlawfully misappropriated trade secrets and confidential information and tortiously interfered with the contractual and business relationships of National Pump. Specifically, the pleadings allege that Nichols, acting for the benefit of Mersino SW, was in Houston, Texas, using and disclosing the confidential information and trade secrets of National Pump. The petition continues that the Mersino Defendants were aware of Nichols's agreement but hired him to compete against National Pump and that the various Mersino entities, including Mersino SW, have knowingly taken advantage of National Pump's confidential information and goodwill. The court finds that National Pump has not, as Removing Defendants argue, simply grouped Mersino SW with the other Mersino Michigan Defendants and generally alleged the aforementioned causes of action. The amended application and petition sets forth facts regarding Mersino SW's involvement, although rather minimal, in the asserted claims.
Moreover, throughout their response to the motion, Removing Defendants maintain that National Pump fails to allege specific facts as to Mersino SW or any Defendants. For example, Removing Defendants state that National Pump does not identify what trade secrets Mersino SW or the other Defendants allegedly misappropriated or any specific contract or business expectancy with which Mersino SW, or any Defendants, supposedly interfered. Improper joinder will not be found "[w]hen the only proffered justification for improper joinder is that there is no reasonable basis for predicting recovery against the in-state defendant, and that showing is equally dispositive of all defendants rather than to the in-state defendants alone." Gasch, 491 F.3d at 283 (emphasis in original) (citing Smallwood, 385 U.S. at 568); accord Holder, 444 F.3d at 386 n.5; Centaurus Unity v. Lexington Ins. Co., 766 F. Supp. 2d 780, 785 (S.D. Tex. 2011). Thus, these arguments will not support the removal of this action.
Thus, under these circumstances, Defendants have not shown that there is "absolutely no possibility that [National Pump] will be able to establish a cause of action against the in-state defendant." Cavallini, 44 F.3d at 259; see Great Plains Trust Co., 313 F.3d at 312; Hart, 199 F.3d at 246; Griggs, 181 F.3d at 699; Sid Richardson Carbon & Gasoline Co., 99 F.3d at 751; Burden, 60 F.3d at 216. As a consequence, Defendants have failed to satisfy their heavy burden of proving fraudulent joinder. See Travis, 326 F.3d at 649-50; Hart, 199 F.3d at 246; Sid Richardson Carbon & Gasoline Co., 99 F.3d at 751; Burden, 60 F.3d at 217. Because the removing parties have not adduced sufficient evidence to establish that Mersino SW was fraudulently joined, the shared Texas citizenship of National Pump and Mersino SW defeats diversity and prevents this court from exercising jurisdiction over this lawsuit. Accordingly, this action should be remanded to the state court in which it was originally filed.
III. Conclusion
An evaluation of the relevant facts and controlling law reveals that this court lacks subject matter jurisdiction over National Pump's action, as there is neither a federal question presented nor complete diversity of citizenship between the parties. Therefore, this case was improvidently removed, and remand is warranted. Consequently, this court finds that National Pump's Motion to Remand should be granted and this action should be remanded to the 136th Judicial District Court of Jefferson County, Texas.
Accordingly, Plaintiff's Motion to Remand is GRANTED. An order of remand will be entered separately.
SIGNED at Beaumont, Texas, this 10th day of April, 2013.
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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE