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Click here for the full text of this decision FACTS:Louis Britt Guillory and Stanley Milton Gims worked for Zachary Construction Co. on a project at PPG Industries in Lake Charles, La. During a 16-hour period while on the job in April 2002, a disk at PPG’s waste treatment unit ruptured and failed, releasing various chemicals into the atmosphere. The employees filed suit in Calcasieu Parish against PPG and various officers � Richard Holliday, Terry Messenger, John Shamburger and James Rock � to recover for the injuries they said they suffered from overexposure to the chemicals. The suit was filed April 16, 2003. On May 16, the defendants filed a notice of removal to federal court on diversity grounds. They argued that the individual defendants were improperly joined. The case was removed, but the employees made no effort to remand due to the presence of the individual, nondiverse defendants On Oct. 17, the magistrate judge announced that he was considering granting summary judgment sua sponte to the defendants, provided they could show that the employees had no reasonable possibility of recovery against them. The employees then sought to remand. Limited discovery followed for the next 10 months until, on Aug. 20, 2004, the magistrate judge found that Holliday had delegated responsibility for safety issues at the plant, but that he had done so with due care; the magistrate judge found that Messenger, Shamburger and Rock had not been delegated with the responsibility of safety. The magistrate judge thus recommended that claims against the individual defendants be dismissed with prejudice. The magistrate judge also recommended that without the individual defendants, there was complete diversity of citizenship, so the motion to remand should be denied. After an independent review of the record, the district court accepted the magistrate’s findings of fact and conclusions of law on Sept. 22, saying they were “entirely correct.” The employees on appeal challenge the district court’s ruling, and they complain that the magistrate judge’s independent inquiry into joinder was improper. HOLDING:Affirmed. The court says that before it can review the propriety of the magistrate judge’s joinder inquiry, it must ascertain the proper standard of review, noting that when a party does not file objections to a magistrate’s findings of fact and conclusions of law � which the employees did not � the standard is plain error. On the other hand, when the issue is independent evaluation of the record, the standard depends on the issue on appeal. The court says it will thus conduct a de novo review. The court notes the two ways to establish improper joinder: 1. actual fraud in the pleading of jurisdictional facts and 2. inability to establish a cause of action against the nondiverse party in state court. The first way is not in question here. The second way is established by showing that there is no possibility of recovery against the defendant, and the burden of proof is on the party who wants to remove to federal court, i.e., PPG and the individual defendants. Following the procedure outlined by the court in its en banc opinion Smallwood v. Illinois Railroad Co., 385 F.3d 568 (5th Cir. 2004), the court first examines whether the employees can survive the standards of Federal Rule of Civil Procedure 12(b)(6). They can, the court finds, because the allegations made in the employees’ petition tie the actions of the individual defendants to various safety responsibilities related to the April 2002 chemical release. The court notes, though, that there are some instances, though rare, when the petition states a cause of action but omits critical facts that would affect joinder. In those instances, a lower court may “pierce the pleadings.” In general, the length of time necessary to determine improper joinder bears on the appropriateness of a judge’s decision to pierce the pleadings. Here, the employees did not address the issue for five months � from May to October 2003 � after the case had been removed to federal court. Their failure to raise the issue for so long “cuts against” their argument that the magistrate judge abused his discretion by piercing the pleadings in this case. The court acknowledges that 10 months of discovery is a long time for the judge to have put off finally ruling on the motion to remand, but the court says the parties themselves largely caused the delay. The overall scope and amount of discovery was not an abuse of discretion, the court holds. The decision to pierce the pleadings was not an abuse of discretion, either. The court then looks at the theories of recovery advanced against the individual defendants to see if the substance of the magistrate’s findings were correct. Under one theory, the employees argue the individuals are corporate officers who have safety responsibilities under Louisiana law. The court finds the uncontroverted deposition testimony of Rock, Shamburger and Messenger shows that they were not delegated duties that would make them responsible for the chemical release. OPINION:Higginbotham, J.; Higginbotham, Wiener and Dennis, JJ.

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