Richard v. BP Products North America, Inc. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LIONEL RICHARD CIVIL ACTION
VERSUS NO. 25-596
BP PRODUCTS NORTH AMERICA, INC.,
ET AL.
SECTION “O”
ORDER AND REASONS
Naming seven out-of-state oil companies and one in-state pipe-cleaning
contractor as defendants,1 Lionel Richard filed this lawsuit in state court seeking to
recover damages following his kidney cancer diagnosis, which he alleges was caused
by decades of pipe-yard workplace exposure to unsafe levels of radiation from
naturally occurring radioactive material (“NORM”). Invoking diversity jurisdiction,
Defendants Chevron U.S.A., Inc. and Marathon Oil Company removed the lawsuit,
urging the Court to disregard the Louisiana citizenship of the sole non-diverse
defendant, OFS, Inc., on the ground that Mr. Richard—who shares OFS’s Louisiana
citizenship—improperly joined the local pipe-cleaner defendant. Before the Court is
Mr. Richard’s motion2 to remand his lawsuit to state court for lack of jurisdiction.
Defendants oppose3 remand and filed a sur-reply4 to Plaintiff’s reply.5 Plaintiff also
identified supplemental authority6 in support of remand.
1 The out-of-state oil company defendants are citizens of Pennsylvania, Texas, Ohio, Maryland,
Illinois, Delaware, and New Jersey, while the pipe cleaning contractor, OFS, Inc., shares Mr. Richard’s
in-state Louisiana citizenship.
2 ECF No. 29.
3 ECF No. 35.
4 ECF No. 47.
5 ECF No. 43.
6 ECF No. 48.
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Like another section of this Court twice has determined—on nearly identical
facts and the same OFS, Inc. affidavit—the removing defendants fail to carry their
heavy burden to persuade the Court that OFS, Inc. was improperly joined at the time
of removal, so remand is required.
I. BACKGROUND
This litigation arises from Plaintiff Lionel Richard’s 2023 diagnosis of papillary
urothelial carcinoma (kidney cancer), which he alleges was caused by 30 years of
workplace exposure to naturally occurring radioactive material (“NORM”) present on
oilfield pipes sent for cleaning at the pipe yards where he worked.
From 1978 to 2008, Mr. Richard worked at used oilfield pipe yards at Hydril
Company in Harvey and Westwego in Jefferson Parish, where he cleaned used oilfield
pipe to remove scale, which he alleges was contaminated with NORM.7 Seeking
compensatory and punitive damages for negligence and strict liability, in January
2025, Mr. Richard sued seven oil companies and one pipe cleaning contractor in
Louisiana state court in Jefferson Parish.
Mr. Richard is a Louisiana citizen, as is the pipe cleaning contractor, OFS, Inc.
The seven oil company defendants—BP Products North America, Inc., Chevron
U.S.A., Inc., ConocoPhillips Company, Exxon Mobil Corporation, ExxonMobil Oil
Corporation, Marathon Oil Company, and Oxy USA, Inc.—are out-of-state citizens of
seven different states: Pennsylvania, Texas, Ohio, Maryland, Illinois, Delaware, and
7 ECF No. 1-1.
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New Jersey.8 Because the instant motion to remand turns on whether the in-state
pipe-cleaning contractor, OFS, Inc., was improperly joined, the Court focuses on Mr.
Richard’s allegations against this non-diverse defendant. However, first, a broad
overview of Mr. Richard’s allegations is necessary to contextualize his claims against
OFS.
As part of oil and gas (hydrocarbon) extraction operations, “pipe [is put] down
into the earth to the depths at which hydrocarbon reservoirs are located.”9 During
“hydrocarbon production operations, the downhole production pipe, i.e., ‘used pipe’,
would become contaminated with mineral scale which contained hazardous, toxic and
carcinogenic radioactive materials . . . generally referred to . . . as NORM[.]”10 As Mr.
Richard explains in his complaint, “[d]uring production, NORM scale adheres to the
internal diameter and external surface of the used pipe[, which accordingly] became
contaminated with NORM scale.”11 Accumulation of this NORM scale inside the used
pipe “restrict[s or obstructs] the hydrocarbon flow up through the pipe, which”
hinders production from the well, resulting in revenue loss to the oil companies which
own the respective well.12 To address this and resume production, used pipes with
8 ECF No. 1. Specifically, the Notice of Removal alleges that BP Products North America, Inc.
is a citizen of Maryland (place of incorporation) and Illinois (principal place of business); Chevron
U.S.A. Inc. is a citizen of Pennsylvania (place of incorporation) and Texas (principal place of business);
ConocoPhillips Company is a citizen of Delaware (place of incorporation) and Texas (principal place of
business); Exxon Mobil Corporation is a citizen of New Jersey (place of incorporation) and Texas
(principal place of business); ExxonMobil Oil Corporation is a citizen of New Jersey (place of
incorporation) and Texas (principal place of business); Marathon Oil Company is a citizen of Ohio
(place of incorporation) and Texas (principal place of business); Oxy USA Inc. is a citizen of Delaware
(place of incorporation) and Texas (principal place of business).
9 ECF No. 1-1 ¶ 8.
10 Id. ¶ 11.
11 Id. ¶¶ 12-13.
12 Id. ¶¶ 14-15.
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significant scale buildup must be removed and replaced. When this happened, the oil
company “pull[ed] the used pipe from the well and replace[d] the used pipe with new
pipe or re-conditioned used pipe” in order to resume hydrocarbon production.13 Once
the oil companies remove the used pipe from the well, the used pipes were sent “to be
cleaned at the Hydril Yard to remove the NORM contaminated scale and to have the
pipe inspected to determine if the pipe could be [reconditioned for] use[] downhole in
a well again.”14
It is alleged that the oil company defendants sent their used pipe to be cleaned
at Hydril yard (among others) and that OFS, Inc., a pipe cleaning contractor,
“conducted pipe cleaning and inspection operations to determine if the pipe” could be
cleaned and inspected for fitness for use again.15 Mr. Richard alleges that, while
working at the Hydril yard, he cleaned used oilfield pipe to remove scale, which was
contaminated with NORM.16 Cleaning used oilfield pipe “created aerosolized
radioactive dust which spread through the air and contaminated the Hydril yard.”17
Mr. Richard’s presence at and job duties for Hydril “caused him to be heavily exposed
to airborne dust which he inhaled and ingested and which was contaminated with
highly radioactive mineral scale[.]”18 Further, Mr. Richard alleges that “[t]he
injurious dose suffered by Plaintiff resulted from radiation emanating from the scale
13 Id. ¶ 16.
14 Id. ¶ 19.
15 Id. ¶¶ 19-20, 24.
16 ECF No. 1-1.
17 Id. ¶ 6.
18 Id. ¶ 7.
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which accumulated upon the ground and in the air and from the inhalation and
ingestion of the aerosolized dust.”19
It is alleged that during the relevant timeframe, the oil company defendants
“had actual knowledge of the presence and dangerous levels of radiation in the NORM
scale” and that they concealed the occupational hazard and failed to warn and/or to
take preventive measures.20 It is further alleged that OFS, too, “had specific
knowledge of the health dangers of NORM while it was conducting operations at . . .
Hydril yards” in 2002 or before, and that it failed to: conduct safe pipe-cleaning
operations, contain or dispose of NORM, clean up yard contamination, properly test
the used pipe or monitor for radiation discharge from its cleaning operations, or warn
Plaintiff or his employer.21 Indeed, Mr. Richard alleges that one way OFS manifested
its specific knowledge of the dangers of NORM at the Hydril yards was in May 2002
when various officers, directors, owners, and employees of OFS—including OFS’s
President, Douglas M. Lanasa, Jr.—sued the oil company defendants for damages
arising from their exposure to NORM.22 In spite of OFS’s NORM hazard knowledge,
Mr. Richard alleges, it failed to conduct safe pipe-cleaning and inspection work at the
Hydril yards and its “fault was a substantial contributing factor in causing Plaintiff’s
cancer.”23
19 Id. ¶ 29.
20 Id. ¶¶ 27, 30-146.
21 Id. ¶¶ 149-50.
22 Id. ¶¶ 151-58.
23 Id. ¶ 159.
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After being served with Mr. Richard’s state-court lawsuit, two oil company
defendants—Marathon Oil Company and Chevron U.S.A., Inc.—timely removed Mr.
Richard’s lawsuit to this Court on March 27, 2025.24 In invoking the Court’s diversity
jurisdiction, they urge the Court to ignore the Louisiana citizenship of OFS, Inc. on
the theory that Mr. Richard improperly joined this pipe-cleaning contractor
defendant such that OFS’s non-diverse citizenship should be disregarded. But as
another section of Court twice has determined, the removing defendants fail to carry
their burden to show OFS was improperly joined. Because complete diversity is
lacking, remand is required.25
II. LAW AND ANALYSIS
A. Legal Standards
1. The Removal and Diversity Statutes
“Federal courts are courts of limited jurisdiction and generally can resolve only
the cases that Congress grants them power to hear.” Hain Celestial Group, Inc. v.
Palmquist, 607 U.S. ---, 146 S. Ct. 724, 728 (2026). When a case initiated in state
court could have been brought originally in federal court, removal is authorized by
statute. See 28 U.S.C. § 1441(a). The removing defendants “bear[] 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) (citations omitted).
“The removal statute is strictly construed, with doubts ‘resolved in favor of remand.’”
24 ECF No. 1.
25 The removing defendants filed a motion to dismiss the strict liability claims. ECF No. 19.
However, the Court lacks jurisdiction to reach the merits of Plaintiff’s claims considering the presence
of non-diverse OFS.
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Pace v. Cirrus Design Corp., 93 F.4th 879, 888–89 (5th Cir. 2024) (quoting Gutierrez
v. Flores, 543 F.3d 248, 251 (5th Cir. 2008)).
Here, the Congressional grant for original jurisdiction is the diversity statute.
See 28 U.S.C. § 1332(a)(1). A case may be removed based on § 1332 if there is complete
diversity of citizenship and the amount in controversy exceeds $75,000.26 See id.; see
also Flagg v. Stryker Corp., 819 F.3d 132, 135 (5th Cir. 2016) (en banc) (citing 28
U.S.C. § 1332(a)(1)). “Relatedly, a district court is prohibited by statute from
exercising jurisdiction over a suit in which any party, by assignment or otherwise,
has been improperly or collusively joined to manufacture federal diversity
jurisdiction.” Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 572 (5th Cir. 2004) (en
banc) (emphasis in original) (citing 28 U.S.C. § 1359).
Because this case was removed based solely on diversity jurisdiction, removal
is subject to 28 U.S.C. § 1441(b)(2), “otherwise known as the ‘forum-defendant rule.’”
In re Levy, 52 F.4th 244, 246 (5th Cir. 2022). Under Section 1441(b)(2)’s forum-
defendant rule, a case “removable solely on the basis” of diversity jurisdiction, like
this one, “may not be removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such action is brought.” 28
U.S.C. § 1441(b)(2). Accordingly, to support removal and to avoid remand here, the
removing Defendants must show that “there is complete diversity between all named
parties, ‘and no defendant is a citizen of the forum State,’” Louisiana. Pace, 93 F.4th
at at 889 (quoting Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84 (2005)).
26 It is undisputed that the amount-in-controversy requirement for diversity jurisdiction is met
because Mr. Richard seeks over $75,000, exclusive of interest and costs.
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2. The Improper Joinder Doctrine
The removing defendants here invoke “[t]he improper joinder doctrine[, which]
constitutes a narrow exception to the rule of complete diversity.” McDonal v. Abbott
Labs., 408 F.3d 177, 183 (5th Cir. 2005). That is, a defendant is “entitle[d] to remove
to a federal forum unless an in-state defendant has been ‘properly joined.’”
Smallwood, 385 F.3d at 573; see also 14 Charles Alan Wright et al., Federal Practice
and Procedure § 3641 (3d ed. Sept. 2025 update) (“[T]he Federal courts should not
sanction devices intended to prevent the removal to a Federal court where one has
that right, and should be equally vigilant to protect the right to proceed in the Federal
court as to permit the state courts, in proper cases, to retain their own jurisdiction.”
(quotation omitted)). Complete diversity thus depends on whether the nondiverse
defendant, OFS, Inc., was improperly joined. If it was, the Court can “disregard” its
Louisiana citizenship in the jurisdictional analysis such that complete diversity
would exist. See Williams v. Homeland Ins. Co. of N.Y., 18 F.4th 806, 812 (5th Cir.
2021) (citing Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th Cir. 2016) (en banc)). If it
was not, OFS’s in-state citizenship destroys complete diversity and the case must be
remanded.
“When analyzing whether the proponent of jurisdiction has established
improper joinder,” the Court “examine[s] all factual allegations and ambiguities of
state law in the light most favorable to the party resisting jurisdiction.” Williams, 18
F.4th at 811 (citation omitted). Critically, “to determine whether a plaintiff has
improperly joined a non-diverse defendant, the district court must examine the
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plaintiff’s possibility of recovery against that defendant at the time of removal.” Flagg,
819 F.3d at 137 (emphasis in original). The party claiming improper joinder bears a
“heavy burden” of persuasion. See Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th
Cir. 2007) (citation omitted); see also Palmquist v. Hain Celestial Grp., Inc., 103 F.4th
294, 304 (5th Cir. 2024) (citation omitted), aff’d on other grounds, 607 U.S. ---, 146 S.
Ct. 724 (2026). “‘[A]ny contested issues of facts and any ambiguities of state law must
be resolved’ in favor of remand.” Palmquist, 103 F.4th at 304 (citations omitted).
There are “two ways to establish improper joinder: ‘(1) actual fraud in the
pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of
action against the non-diverse party in state court.’” Smallwood, 385 F.3d at 573
(quoting Travis v. Irby, 326 F.3d 644, 646–47 (5th Cir. 2003)).27 The removing
defendants do not attempt to show actual fraud, so only the second way is at issue
here.
Under the second way, the test is whether Mr. Richard “had any possibility of
recovery” against local OFS, Inc. in Louisiana state court. Williams, 18 F.4th at 812
(citing Flagg, 819 F.3d at 136). Courts in their discretion approach this determination
by employing one of two means. First and ordinarily, the Court considers whether the
complaint’s allegations can survive a Rule 12(b)(6) challenge. The no-possibility-of-
recovery test “is virtually identical to the inquiry on a motion to dismiss for failure to
state a claim: ‘[ ] if a plaintiff can survive a Rule 12(b)(6) challenge, there is no
27 The Fifth Circuit has “occasionally referred to improper joinder as ‘fraudulent joinder.’”
Williams, 18 F.4th at 812 (quoting Smallwood, 385 F.3d at 571 n.1). “Although there is no substantive
difference between the two terms, ‘improper joinder’ is preferred” because it is “more consistent with
the statutory language.” Smallwood, 385 F.3d at 571 n.1.
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improper joinder.’” Williams, 18 F.4th at 812 (quoting Flagg, 819 F.3d at 136)
(citation omitted); see also Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 183 (5th Cir.
2018) (observing that “the existence of even a single valid cause of action against in-
state defendants . . . requires remand of the entire case to state court” (citations
omitted)).28 Conversely, if a plaintiff “has not stated a claim for relief against” the
nondiverse defendant under Rule 12(b)(6), “then [those defendants] were improperly
joined[,] and [the Court] may disregard their citizenship.” Allen, 907 F.3d at 183
(citation omitted).
Second, if the complaint’s allegations satisfy Rule 12(b)(6) but the plaintiff
otherwise “has misstated or omitted discrete facts that would undermine the
propriety of joinder[,]” the Court may go beyond the pleadings to “conduct a summary
inquiry” to determine whether undisputed facts preclude recovery against the local
defendant. See Smallwood, 385 F.3d at 573; see also Flagg, 819 F.3d at 136–37
(observing that a district court may “pierce the pleadings and conduct a summary
inquiry” but “only to identify the presence of discrete and undisputed facts that would
preclude the plaintiff’s recovery against the in-state defendant” (quotations, citations,
and alterations omitted)). Even if the Court in its discretion pierces the pleadings in
the limited fashion authorized, however, the test for improper joinder remains
“whether the defendant has demonstrated that there is no possibility of recovery by
28 The Court evaluates the removed state-court petition under the federal pleading standard.
See Int’l Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 207–08 (5th Cir.
2016). That means the petition “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell.
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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the plaintiff against an in-state defendant.” See Davidson v. Georgia-Pacific, LLC,
819 F.3d 758, 765 (5th Cir. 2016) (citing Smallwood, 385 F.3d at 573). The Fifth
Circuit offers classic “examples of improper joinder” evident after—and underscoring
the limited nature of—a summary inquiry, i.e., evidence “preclude[s] the possibility
of recovery” when it shows “the in-state doctor defendant did not treat the plaintiff
patient”; “the in-state pharmacist defendant did not fill a prescription for the plaintiff
patient”; or “a party’s residence was not as alleged[.]” Id. at 766 (citing Smallwood,
385 F.3d at 573-74 & n.12).
In short, where a summary inquiry dispatches evidence of “discrete and
undisputed facts” showing that a plaintiff has no possibility of recovery against the
in-state defendant, the improper joinder standard has been met. See id. Applying
these standards, the removing Defendants fail to carry their “heavy burden” to show
that Mr. Richard fails to state a reasonable possibility of recovery against OFS, Inc.
Because there is no improper joinder, OFS, Inc.’s shared citizenship with Mr. Richard
destroys complete diversity and requires remand.
B. The Removing Defendants Fail to Carry their Heavy Burden to
Show that Non-Diverse OFS, Inc. Was Improperly Joined.
1. The Parties’ Contentions Frame the Improper Joinder Issue.
In invoking the Court’s diversity jurisdiction, the removing defendants urge
the Court to ignore the Louisiana citizenship of OFS, Inc. on the theory that Mr.
Richard improperly joined this pipe-cleaning contractor defendant. Conceding that
Mr. Richard states a viable claim against OFS, the removing defendants instead urge
the Court to pierce the pleadings to determine that OFS is “a defunct entity” that
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could not fund a judgment and thus Mr. Richard has no reasonable possibility of
recovery against the non-diverse defendant. The removing defendants support their
“defunct entity” theory with Douglas M. LaNasa, Jr.’s affidavit, which was signed just
three days prior to and included with their notice of removal.29 Mr. LaNasa, the
President and sole officer of OFS, Inc., attested that “[t]he Articles of Incorporation
and franchise of OFS, Inc. will be terminated effective April 9, 2025, pursuant to the
March 10, 2025 letter from the Louisiana Secretary of State to OFS, Inc.” Mr. LaNasa
further attested that OFS, Inc.: (i) does not own or lease office space (and has not
done so in more than three years); (ii) owns no property or assets (and has not owned
any for more than three years); (iii) has no customers or accounts receivable (and has
not engaged in business activity in more than three years); (iv) has no money; and (v)
has no employees (and has had no “working employee” for over two years, at which
time the employee assisted in winding down the company).30
Mr. Richard moves to remand his lawsuit back to state court because it is
undisputed that he has alleged a viable claim against OFS.31 He contends that the
removing defendants wrongly anchor their improper joinder theory to whether the
non-diverse party has assets with which to pay a judgment rather than whether he
has stated a valid claim for liability against OFS upon which relief may be granted.32
Furthermore, Mr. Richard challenges the only evidence the removing defendants
offer in support of their improper joinder theory by submitting evidence and
29 ECF No. 1-7.
30 Id.
31 ECF No. 29-1.
32 Id.
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argument to refute and/or establish factual disputes regarding the extent to which
OFS may be “defunct.” Specifically, Plaintiff counters with documents from Louisiana
and Texas Secretaries of State, a 2025 parcel listing from Plaquemines Parish, and
correspondence with OFS’s registered agent and attorney, who indicated he would
enroll as counsel for LaNasa and OFS on “new norm cases[.]”33 In a notice of
supplemental authority, Mr. Richard points out that another section of Court has
rejected the removing defendant’s improper joinder theory in connection with the
same non-diverse defendant, OFS, in another NORM-exposure case removed in
reliance on the same affidavit by OFS’s president.34
The removing defendants offer no rebuttal to Plaintiff’s identification of these
supplemental authorities. Rather, in opposing Mr. Richard’s motion to remand, the
removing defendants continue to press Mr. LaNasa’s affidavit and their argument
that district courts in the Western District of Louisiana have applied a factor-based
test assessing a non-diverse business entity’s activities, which they submit supports
their improper joinder theory that the dispositive consideration is whether the
plaintiff has any reasonable possibility of recovery from an entity which has
essentially been defunct for many years. That Plaintiff has stated a valid claim is
irrelevant, defendants argue, because Plaintiff has no possibility of recovering a
money judgment against a “defunct” corporation.
33 ECF Nos. 29-2 through 11 and ECF No. 43.
34 ECF No. 48.
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2. Defendants Removing NORM Cases to this Court Have Failed to
Show that OFS Was Improperly Joined.
As a threshold matter, the Court observes that it is not resolving the issue of
OFS’s alleged improper joinder issue on a clean slate. This Court is no stranger to
NORM-exposure litigation removed from state court. OFS, Inc. has been named as a
defendant in NORM cases, whether mass or class actions or those involving
individual plaintiffs.35
Indeed, the instant case is one of five total NORM-exposure cases naming OFS
as a defendant that was removed to this Court within the past three years. The other
four have been remanded due to the removing oil company defendants’ failure to carry
their burden to show that OFS was improperly joined. Two other sections of this
Court rejected arguments advanced by removing oil company defendants that
plaintiffs had no possibility of recovery against OFS after considering dueling
affidavits on the issue of whether OFS, in fact, had cleaned used pipe after certain
time periods at certain pipe yards. See Civil Action No. 24-2122, Ledet, et al. v. BP
Products North America, Inc., et al. (ECF No. 37) (Barbier, J.); see also Cline v. BP
Prods. North America, Inc., No. 23-856, 2023 WL 4558876 (E.D. La. July 17, 2023)
(Guidry, J.).
And the other two rejected the identical arguments advanced by the removing
defendants here. That is, directly pertinent to the improper-joinder theory presented
35 See, e.g., Coleman v. H.C. Price Co., No. 11-2937, 2014 WL 354443 (E.D. La. Sept. 2, 2014)
(Morgan, J.) (of 32 motions to dismiss presented, converting OFS’s motion to dismiss NORM-exposure
claims as to some plaintiff groups into one for summary judgment and granting the motion on
consideration of OFS’s affidavit attesting that it did not clean pipe at certain facilities).
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in the instant NORM-exposure case, Judge Barbier twice has granted a plaintiff’s
motion to remand NORM-exposure cases, rejecting the same removing oil company
defendants’ argument that the plaintiff had no possibility of recovery against
“defunct” entity OFS. See Ledet v. BP Products North America, Inc., No. 25-793, 2025
WL 1668509 (E.D. La. June 13, 2025) (Ledet II);36 Alegria v. BP Prods. North America,
Inc., No. 25-790, 2025 WL 1668505 (E.D. La. June 13, 2025). Judge Barbier’s
determinations squarely persuade, compelling the same outcome—remand—under
identical circumstances here.37
3. Conflicting Evidence Regarding OFS’s Corporate Status Defeats
Defendants’ Attempt to Show Improper Joinder.
The Court confronts the same issue presented to Judge Barbier and resolved
against the removing defendants: whether non-diverse OFS was improperly joined to
defeat diversity jurisdiction. To resolve it, the Court pierces the pleadings to consider
whether OFS was “defunct” at the time of removal.38 To put a finer point on it, the
issue presented is whether the removing defendants have demonstrated that a
plaintiff who has alleged a valid claim against a non-diverse corporation nevertheless
is precluded from any reasonable possibility of recovery where the corporation’s
current president attests that it has no employees, assets, or money, but where the
corporation has not been formally dissolved in accordance with state law, remains
“active”, owns property, and is participating through counsel in similar cases at the
36 Ledet was twice removed and twice remanded.
37 The removing defendants in the instant case do not affirmatively resist the outcome of Ledet
II and Alegria, which were remanded after briefing was complete on the instant motion to remand.
38 The removing defendants do not suggest that “defunct” is a term of art but, rather, imply
that “defunct” equates to an inability to fund a judgment.
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time of removal?39 To articulate this issue underscores the fact disputes that doom
the removing defendants’ ability to carry their heavy burden to identify discrete and
undisputed facts that preclude Mr. Richard’s recovery against OFS. Because the
narrow summary inquiry invited by the removing defendants renders OFS’s “defunct”
status debatable at best, they fail to show that OFS was improperly joined and OFS’s
non-diverse presence thus defeats complete diversity, requiring remand.
In Ledet II and Alegria, the same removing defendants relied on the same
March 24, 2025 LaNasa Affidavit to support the same arguments advanced in the
instant case and summarized herein. In each case, Judge Barbier conducted a narrow
summary inquiry to determine what proved dispositive in rejecting the defendants’
improper joinder theory: whether “the presence of discrete and undisputed facts . . .
would preclude plaintiff’s recovery against the in-state defendant.” Ledet II, 2025 WL
1668508, at *3 and Alegria, 2025 WL 1668505, at *3 (both quoting Smallwood, 385
F.3d at 573). Judge Barbier found no such discrete and undisputed facts.40 LaNasa’s
affidavit itself failed to show that OFS undertook to comply with state law to pursue
dissolution and was silent as to insurance policies for the relevant time period. See
39 Articulating the issue thusly pretermits the more abstract issue of whether a plaintiff has
no reasonable possibility of recovering against a corporate defendant within the meaning of the Fifth
Circuit’s formulation of the improper joinder doctrine when the corporation has complied with the
statutory prerequisites for dissolution, has ceased to exist under the applicable law, or is indisputably
insolvent. Because no such undisputed facts are presented here to inform this more abstract
formulation of Defendant’s “defunct corporation” theory of improper joinder, the Court declines to
address it.
40 Though Judge Barbier considered the Western District cases invoked by the removing
defendants, employing that court’s factor-based circumstantial assessments of whether a non-diverse
company is “defunct” was found unhelpful in the case of OFS, which enjoyed a merely debatable
corporate status as opposed to those “defunct” entities identified in the Western District cases where
corporate inactivity had endured for one or more decades. See, e.g., Alegria, 2025 WL 1668505, at *2
(citations omitted).
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Ledet II, 2025 WL 1668508, at *4 and Alegria, 2025 WL 1668505, at *4. Moreover,
the impact of Mr. LaNasa’s stray assertions purporting to support an inference that
OFS was “defunct” were further diluted when considered alongside other realities,
including that OFS had not been formally dissolved, any post-removal
administratively-terminated status was of relatively recent vintage, and the
plaintiff’s own countervailing evidence, including assessor’s office records showing
OFS owned property and an email from OFS’s alleged counsel indicating
participation in other litigation against OFS and LaNasa. See generally id.
Ultimately, Judge Barbier determined that the removing defendants invited a
mere “circumstantial inquiry” into OFS’s inactive—but not formally dissolved—
status that “would not provide undisputed facts to prove improper joinder” but,
instead, implicated “disputed facts” which precluded a determination that OFS is a
defunct corporation against which plaintiff has no possible means of recovery. See
Ledet II, 2025 WL 1668508, at *4 and Alegria, 2025 WL 1668505, at *4.
So too here. Piercing the pleadings to conduct a summary inquiry reveals
disputed facts concerning OFS’s corporate status. Just like Judge Barbier
determined, LaNasa’s assertions in his affidavit hardly present undisputed facts that
prove improper joinder of OFS. And Plaintiff presents countervailing evidence
probative of a contrary inference, that OFS is not “defunct.”
Because the facts pertaining to OFS’s status are disputed, the removing
defendants fail to carry their heavy burden to show that Mr. Richard is precluded
from recovering against non-diverse OFS based on this status. The identical affidavit
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on which removing defendants predicate their “defunct” entity theory of improper
joinder was considered by Judge Barbier in Ledet II and Alegria.41 There, as here,
OFS’s President Douglas LaNasa attests that OFS has not engaged in business
activity for three years, has no assets or employees, has been “winding down the
company,” and would have its charter terminated on April 9, 2025. There, as here,
the plaintiff contests whether and the extent to which OFS may be “defunct” by
offering his own countervailing evidence.42 Accordingly, there as here, “a[n identical]
circumstantial inquiry [does] not provide undisputed facts to prove improper joinder.”
See Ledet II, 2025 WL 1668508, at *4 and Alegria, 2025 WL 1668505, at *4. Rather,
it is undisputed that OFS was not formally dissolved in accordance with state law43
and certain attestations by LaNasa that may be probative of whether OFS is
“defunct”44 are contested by Plaintiff, who provides evidence dispelling an inference
41 Compare No. 25-790 ECF No. 1-2 and No. 25-793 ECF No. 2-2 with No. 25-596 ECF No. 1-7
(all bearing the caption Richard v. BP Products North America, Inc., et al.).
42 Plaintiff does not rest on mere argument to contest Mr. LaNasa’s assertions and the
removing defendants’ proffered inference that OFS was a defunct entity. Plaintiff offers evidence of
his own that is probative of OFS’s corporate status. Plaintiff counters the LaNasa Affidavit by
submitting that, at the time he filed his lawsuit and at the time of removal, OFS had not been dissolved
and was still an active corporation as evidenced by the following: none of the statutorily required steps
for dissolution of OFS had been undertaken; OFS is a defendant in four ongoing NORM personal injury
lawsuits handled by Mr. Richard’s attorneys and had even filed answers within a year of removal of
the instant case; according to the Louisiana Secretary of State, OFS was “active” but not in good
standing; according to the Texas Secretary of State, OFS was still “in existence” as recently as April
24, 2025; a Louisiana parish assessor’s 2025 parcel listing indicates that OFS, Inc. owns property with
a market value of $8,660 and assessed at $1,299; and an attorney for LaNasa and OFS recently
emailed Plaintiff’s counsel stating that he would enroll to represent them in “several new [NORM]
cases.” See, e.g., ECF Nos. 29 and 43.
43 The removing defendants offer no support for their contention that the Court may simply
gloss over applicable state substantive law respecting corporate formalities to conclude that a non-
diverse corporation’s status—while short of dissolution—is “defunct.”
44 The removing defendants’ reliance on then prospective fact that OFS’s articles of
incorporation would be “administratively terminated” on April 9, 2025 is of no moment to the improper
joinder analysis here for at least two reasons. First, as a matter of federal removal procedure, whether
this Court has diversity jurisdiction is determined at the time of removal, which occurred before the
anticipated date of administrative termination of OFS. Second, as a matter of Louisiana corporate
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that OFS was “defunct” at the relevant time. In short, no facts were presented which
preclude Plaintiff’s recovery against OFS.
* * *
That the removing defendants and Mr. Richard spar on the facts predicating
the defendants’ “defunct corporation” theory of improper joinder defeats such theory.
To be sure, Smallwood instructs that an improper-joinder proponent’s resort to a
summary inquiry will succeed only when the inquiry yields answers to discrete and
material questions—or “fact[s] that easily can be disproved if not true”—such as, in
the prototypical examples mentioned in Smallwood, facts showing that: the in-state
doctor defendant did not treat the plaintiff patient; the in-state pharmacist defendant
did not fill a prescription for the plaintiff patient; or, a party’s residence was not as
alleged. See 385 F.3d at 573-74 n.12 (citation omitted). The defendants have not
offered facts that easily disprove any fact alleged by Plaintiff concerning OFS’s
liability for his NORM exposure. Finally, far from rendering it undisputed that OFS
is a defunct corporation, the fact disputes and ambiguities surrounding OFS’s
corporate status favor Plaintiff, the party resisting jurisdiction, because factual
disputes and ambiguities are doubts resolved in favor of remand. See Wilson v.
Kemper Corp. Servs., Inc., 134 F.4th 339, 347 (5th Cir. 2025) (observing that “as the
effect of removal is to deprive the state court of an action properly before it, removal
statutory law, administrative termination, see La.R.S. 12:1-1442(b)(2), does not extinguish claims
against the corporation or abate proceedings to which the corporation is a party. See La. R.S. 12:1-
1443(C)(1); see also La.R.S. 12:1-1443(C)(3). So, regardless of whether OFS’s articles of incorporation
ultimately were administratively terminated post-removal, the termination ostensibly has no legal
effect on the ability of Plaintiff to state a claim for relief against OFS.
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raises significant federalism concerns. The removal statute is therefore to be strictly
construed, and any doubt about the propriety of removal must be resolved in favor of
remand” (citations omitted)).
III. CONCLUSION
Accordingly,
IT IS ORDERED that the motion45 to remand is GRANTED. The case
shall be remanded to the 24th Judicial District Court for the Parish of Jefferson.
New Orleans, Louisiana, this 27th day of March, 2026.
BRANDON S. LONG
UNITED STATES DISTRICT JUDGE
45 ECF No. 29.
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