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Homer L. Giard and Mary Giard v. Brett Ouellette and

November 1, 2012


The opinion of the court was delivered by: Carolyn S. Ostby United States Magistrate Judge


Plaintiffs Homer L. Giard and Mary Giard (collectively, "Giard") filed this action in state court, naming as defendants Brett Ouellette ("Ouellette") and Burlington Northern Santa Fe Railway Company ("BNSF"). Defendants removed the action to this Court, asserting federal diversity jurisdiction. Defts' Notice of Removal (DKT 1).

Pending before the Court are two motions: (1) Giard's Motion to Remand (DKT 8); and (2) Defendants' Motion for Judgment on the Pleadings as to Ouellette (DKT 6). For the following reasons, the Court recommends*fn1 that Giard's motion to remand be denied and Defendants' motion for judgment on the pleadings be granted.


For purposes of the pending motions, the Court takes as true the allegations in the complaint. In 2009, while working as an exempt employee for BNSF, Giard sustained an injury that put him out of work for a period of time. Cmplt (DKT 4) at ¶ 13. After evaluation, Giard was qualified to return to work the following year. Id. at ¶¶ 14-15. In the meantime, BNSF had filled Giard's position with another employee. Id. BNSF denied Giard's subsequent request to return to a non-exempt position, based on a work restriction that was placed on Giard back in 1997. This caused Giard to be held out of work from August 2010 through April 2012. Id. at ¶ 21.

Ouellette worked as a field manager in BNSF's Medical & Environmental Health department, and "participated with Defendant BNSF in operating a railroad in Montana." Id. at ¶ 2. Ouellette was the manager designated by BNSF to assist Giard in returning to work following the 2009 injury, and allegedly "neglected his responsibilities to [Giard] and negligently mismanaged [Giard's] ability to return to work as he desired." Id. at ¶ 20.

The complaint alleges only one claim against Ouellette. It alleges: "Pursuant to § 39-2-703, MCA, Defendant Ouellette is liable for all damages sustained by Plaintiff, Homer L. Giard, due to Defendant Ouellette's negligent mismanagement of Plaintiff's medical condition and Plaintiff's request to return to work with Defendant BNSF as a union employee." Id. at ¶ 23. Mary Giard's consortium damage claim is similarly based on "Ouellette's mismanagement of Plaintiff Homer L. Giard's medical restrictions and request to return to work...." Id. at ¶ 25. Giard's brief in support of the motion to remand acknowledges that "Plaintiffs' legal claim against both Defendants in this case is brought under § 39-2-703, MCA." DKT 9 at 14.


Because the Court must determine whether it has jurisdiction to proceed, the Court turns first to Giard's motion to remand. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998) ("Without jurisdiction the court cannot proceed at all in any cause").

A. Parties' Arguments

Giard argues that this Court lacks jurisdiction under 28 U.S.C. § 1332 because complete diversity of citizenship among the named parties does not exist -- both Giard and Ouellette are Montana citizens. Pltfs' Br. in Support of Mot. to Remand (DKT 9) at 5-6. In support of his motion to remand, Giard argues that (1) his motivation for joining Ouellette is immaterial, id. at 9; (2) Ouellette is not immune from liability for his own tortious conduct, id. at 10; and (3) Giard has stated a valid cause of action against Ouellette because he is subject to individual liability under M.C.A. § 39-2-703. Id. at 14. Giard concludes that remand is required because Ouellette is a non-diverse defendant.

Defendants acknowledge that Ouellette is a Montana citizen, as are both Plaintiffs. Deft's Notice of Removal (DKT 1) at ¶¶ 3, 5. But Defendants argue that Ouellette was fraudulently joined and thus his presence should not defeat diversity jurisdiction. Defts' Br. in Opposition to Pltfs' Mot. to Remand (DKT 14) at 8. Defendants argue that § 39-2-703 only imposes liability on a "person or corporation operating a railroad," and Ouellette does not fit within the reach of the statute. Id. at 14. Defendants argue that because Giard has failed to state a claim against Ouellette, complete diversity exists and removal was proper. Id. at 21.

B. Legal Standard

Diversity jurisdiction requires that each of the plaintiffs must be citizens of different states than each of the defendants. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). To protect the jurisdiction of state courts, removal jurisdiction is strictly construed in favor of remand. Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005). There is a strong presumption against removal, and the defendant bears the burden of establishing that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). Doubt arising from inartful, ...

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