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Madison v. Vintage Petroleum, Inc.

ELR Citation: 27 ELR 21148
Nos. 96-60213, 114 F.3d 514/(5th Cir., 06/02/1997)

The court holds that a district court erroneously dismissed a nondiverse defendant as fraudulently joined in an action based on oil companies' alleged contamination of Mississippi property with naturally occurring radioactive material (NORM). The court first holds that a party removing an action to federal court must demonstrate that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court, or must demonstrate that there has been outright fraud in the plaintiff's pleadings of jurisdictional facts. The district court held that because plaintiff-appellant did not allege that the nondiverse defendant-appellee had knowledge of the radioactive material, it could not recover on a negligence per se claim. But testimony, on which the district court relied, that the nondiverse defendant-appellee would have violated Mississippi regulations if it knew that elevated NORM levels were on the property does not preclude the possibility that a defendant with a less culpable mental state could also be in violation of the regulations. The court, therefore, concludes that plaintiff-appellant would have a possibility of recovering for negligence per se. For similar reasons, the court also concludes that the nondiverse defendant-appellee failed to prove that there was no possibility that plaintiff-appellant could have recovered for negligence or trespass. The court remands the case to the district court with instructions to remand it to state court.

Counsel for Plaintiff
Jeffery P. Reynolds
Heidelberg & Woodliff
Capital Towers
125 S. Congress St., 14th Fl., Jackson MS 39201
(601) 948-3800

Counsel for Defendants
James Cox
Sacks, Weston, Smolinsky, Pearson & Albert
1615 Poydras St., New Orleans LA 70112
(504) 593-9600

Before POLITZ, Chief Judge, KING, Circuit Judge, and FOLSOM,* District Judge.