IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30741

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.

United States Court of Appeals

Fifth Circuit

FILED

June 14, 2016

Lyle W. Cayce

Clerk

 

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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 nondiverse 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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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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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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