Fraudulent joinder exists if, after resolving all disputed facts and state-law ambiguities in favor of the nonremoving party, that party has no possibility of recovery against the questioned defendant.
The survivors of a security guard killed on a retail loading dock appeal the district court's denial of their motion to remand and the grant of summary judgment to the diverse defendants. The central question is whether the nondiverse defendants were fraudulently joined to defeat federal diversity jurisdiction. The court applies a summary-judgment-like procedure, resolving all disputed facts and state-law ambiguities in favor of the nonremoving party to determine if that party has any possibility of recovery against the questioned defendants. Finding that the nondiverse defendants owed no duty to the decedent and were immune from suit, the court concludes that the plaintiffs had no possibility of recovery. The court affirms the denial of the remand motion and the summary judgments.
At page 100 Applying summary judgment procedure to fraudulent joinder claims192 citing cases“after all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the nonremoving party, the court determines whether that party has any possibility of recovery against the party whose joinder is questioned.”
- Banbury v. Omnitrition Int'l, Inc., 818 F. Supp. 276 (D. Minn. 1993).published See e.g., Boyer, 913 F.2d at 112 ; see also Anderson, 661 F.Supp. at 1402 ; Scientific Computers, Inc. v. Edudata Corp., 596 F.Supp. 1290, 1292-93 (D.Minn.1984); but see Carriere, 893 F.2d at 100 .
- Ellis v. Evonik Corp., No. 2:21-cv-01089, 2021 WL 4862146 (E.D. La. Oct. 19, 2021).(When determining fraudulent joinder, the district court may look to 27 R. Docs. 20-2, 20-3 & 20-4. the facts established by summary judgment evidence as well as the controlling state law. Hence, the trial court properl…)
- St. Charles Surgical Hosp., LLC v. HUB Int'l, Ltd., No. 2:20-cv-02904 (E.D. La. Apr. 21, 2021).(While we have frequently cautioned the district courts against pretrying a case to determine removal jurisdiction, we have also endorsed a summary judgment-like procedure for disposing of fraudulent joinder claims.)
- Powell, No. 2:26-cv-00681 (E.D. La. July 27, 2026).A.R. v. Packaging Corp. of Am. Inc., 34 F.4th 431, 438 (5th Cir. 2022) (affirming district court finding of fraudulent joinder after summary inquiry regarding Canter’s personal fault element); cf. Jack, 79 F.4th at 558-59 (holding courts m…
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- Cambridge Rental Props. LLC v. State Farm Fire & Cas. Co., No. 2:23-cv-06169 (E.D. La. Nov. 20, 2024).Doc. 21-3. 47 Id. at 2. 48 Travis, 326 F.3d at 648 -49 (citing Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)). its Motion is properly considered by the Court.49 Moreover, the Court further points out that Cambridge too…
- Neal v. Louisiana Pigment Co L P, No. 2:23-cv-01297 (W.D. La. Sept. 18, 2024).Aug. 17, 2021) (citing Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007); Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 100 (5th Cir. 1990)).
- Talley v. MasTec, Inc., No. 3:23-cv-00202 (M.D. La. Aug. 22, 2024).La. June 18, 2014), quoting Randolph. 68 The Fifth Circuit has “frequently cautioned the district courts against pretrying a case to determine removal jurisdiction….” Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990). serv…
- Williams v. Walmart Stores East, LP, No. 3:23-cv-03142 (S.D. Miss. Feb. 21, 2024).Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 100 (5th Cir. 1990).
- Alpha Mgmt. Corp. v. Betty Harris, Individually, & Betty Harris on Behalf of All the Wrongful Death Beneficiaries of John Harris, & Kevin Gooden, No. 2022-IA-00354-SCT (Miss. June 1, 2023).published When facing analogous claims of improper joinder of in-state defendants to defeat removal by the diverse defendant to federal court, the Fifth Circuit has directed its trial courts to “employ a summary judgment-like procedure for disposing…
Show 181 more citing cases
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- Ksn Hosp. LLC v. Great Lakes Ins. Se Do Not Docket. Case Has Been Remanded., No. 1:22-cv-00092 (S.D. Tex. Nov. 8, 2022).Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002) (quoting Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)).
- Sinjel, LLC v. The Ohio Cas. Ins. Co., No. 3:22-cv-00419 (S.D. Miss. Oct. 27, 2022).Carriere v. Sears, Roebuck and Co., 893 F.2d 98, 100 (5th Cir. 1990).
- Herrin v. Tri-State Env't, LLC, No. 2:22-cv-00077 (E.D. La. Sept. 30, 2022).La. 2008) (citing Becker v. Tidewater, Inc. 335 F.3d 376, 392 (5th Cir. 2003)). 44 Burchett v. Cargill, Inc., 48 F.3d 173, 176 (5th Cir. 1995)(citing Carriere v. Sears roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)). 45 R.
- Gerrets v. Capital One Nat'l Ass'n, No. 2:21-cv-02387 (E.D. La. Aug. 8, 2022).Under the second method of demonstrating improper joinder, first “all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the nonremoving party,” and second, the court must address “whether…
- Tillman v. John Deere Constr. & Forestry Co., No. 2:21-cv-02331 (E.D. La. May 4, 2022).Under the second method of demonstrating improper joinder, first “all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the nonremoving party,” and second, the court must address “whether…
- Engelman v. Menard, Inc, No. 1:21-cv-04017 (N.D. Ill. Jan. 18, 2022).Ill. June 13, 1995) (quoting Carriere v. Sears Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)).
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- Roussell v. PBF Consultants, LLC, No. 3:18-cv-00899, 2020 WL 5901118 (M.D. La. Sept. 18, 2020).Doc. 61, p. 4 (quoting Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)). 81 R.
- Smith v. Philip Morris USA Inc., No. 1:18-cv-06397 (N.D. Ill. Sept. 30, 2019).Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990)) (cleaned up)3; see also Faucett v. Ingersoll–Rand Mining & Machinery Co., 960 F.2d 653, 655 (7th Cir. 1992) (considering the defendant’s affidavit when evaluating whether there was fraudulen…
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- John Walker v. Philip Morris USA Inc., 443 F. App'x 946 (6th Cir. 2011).unpublishedFurther, “‘[A]ny disputed questions and fact and ambiguities in the controlling state law [should be resolved] ... in favor of the nonremoving party.’ ” Id. (quoting Carriere v. Sears Roebuck & Co., 893 F.2d 98, 100 (5th Cir.), cert. denie…
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- Smallwood v. IL Cent. RR Co, 355 F.3d 357 (5th Cir. 2004).publishedCo., 44 F.3d 256, 263 (5th Cir. 1995); Burchett v. Cargill, Inc., 48 F.3d 173, 175-76 (5th Cir. 1995); Jernigan v. Ashland Oil Inc., 989 F.2d 812 , 815-16 (5th Cir. 1994); LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir. 1992); Carrie…
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- Zermeno v. McDonnell Douglas Corp., 246 F. Supp. 2d 646 (S.D. Tex. 2003).published
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- Howard v. CitiFinancial, Inc., 195 F. Supp. 2d 811 (S.D. Miss. 2002).published
- Jamison v. Kerr-McGee Corp., 151 F. Supp. 2d 742 (S.D. Miss. 2001).published
- Booker v. Am. Gen. Life & Accident Ins., 257 F. Supp. 2d 850 (S.D. Miss. 2003).published
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- Smallwood v. Illinois Cent. R.R., 203 F. Supp. 2d 686 (S.D. Miss. 2002).published
- Batton v. Georgia Gulf, 261 F. Supp. 2d 575 (M.D. La. 2003).published
- CC Indus., Inc. v. Ing/Reliastar Life Ins., 266 F. Supp. 2d 813 (N.D. Ill. 2003).published
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- Moody Nat'l Bank of Galveston v. St. Paul Mercury Ins., 193 F. Supp. 2d 995 (S.D. Tex. 2002).published
- Smith v. Union Nat'l. Life Ins. Co., 286 F. Supp. 2d 782 (S.D. Miss. 2003).published
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- Hare v. City Fin. Co., 269 F. Supp. 2d 766 (S.D. Miss. 2003).published
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- Culpepper v. Double R, Inc., 269 F. Supp. 2d 739 (S.D. Miss. 2003).published
- Little v. Purdue Pharma, L.P., 227 F. Supp. 2d 838 (S.D. Ohio 2002).published
- White v. City Fin. Co., 277 F. Supp. 2d 646 (S.D. Miss. 2003).published
- Thomas v. Ohio Cas. Grp. of Ins. Companies, 3 F. Supp. 2d 764 (S.D. Tex. 1998).published
- Wilkinson v. Jackson, 294 F. Supp. 2d 873 (S.D. Miss. 2003).published
- Marabella v. Autonation U.S.A. Corp., 88 F. Supp. 2d 750 (S.D. Tex. 2000).published
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- Mclester v. Gran Colombiana Line, 902 F. Supp. 104 (E.D. La. 1995).published
- Rivet v. Regions Bank of Louisiana, F.S.B., 108 F.3d 576 (5th Cir. 1997).published
- Smith v. Union Nat'l Life Ins., 286 F. Supp. 2d 782 (S.D. Miss. 2003).published
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- Freeman v. Wal-Mart Stores, Inc., 775 F. Supp. 208 (W.D. La. 1991).published
- B.Y.R.D. v. Principal Cas. Ins., 781 F. Supp. 1177 (S.D. Miss. 1991).published
- Butler v. R.J. Reynolds Tobacco Co., 815 F. Supp. 982 (S.D. Miss. 1993).published
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- Bankard v. Wyeth-Ayerst Labs. Co., 898 F. Supp. 426 (E.D. Tex. 1995).published
- Hicks v. Wyeth-Ayerst Labs. Co., 899 F. Supp. 312 (E.D. Tex. 1995).published
- Pate v. Adell Compounding, Inc., 970 F. Supp. 542 (M.D. La. 1997).published
- Shavers v. Beverly Enter.-Mississippi, Inc., 977 F. Supp. 1259 (N.D. Miss. 1997).published
- Johnson v. Glaxo Smith Kline, 214 F.R.D. 416 (S.D. Miss. 2002).published
- Poulos v. NAAS Foods, Inc., 132 F.R.D. 513 (E.D. Wis. 1990).published
- Waters v. State Farm Mut. Auto. Ins., 158 F.R.D. 107 (S.D. Tex. 1994).published
- Colenburg v. Amica Gen. Agency, LLC, No. 5:19-cv-00024 (S.D. Miss. June 12, 2019).
- Todd v. Lyft, Inc., No. 5:19-cv-01168 (W.D. Tex. Dec. 2, 2019).
- Sanchez v. Great Am. Ins. Co., No. 5:20-cv-00699 (W.D. Tex. Oct. 7, 2020).
At page 102 Determining duty to protect property and persons23 citing casessummary judgment will always be appropriate in favor of a defendant against whom there is no possibility of recovery
- Allen v. Our Lady of the Lake, No. 22-30546 (5th Cir. May 5, 2023).unpublishedComm’n, 586 F.3d 321, 327 (5th Cir. 2009) (quoting Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th Cir. 1990)); see also Fed. R.
- Practical Healthcare Supply, Inc. v. AssuredPartners Gulf Coast Ins. Agency, LLC, 112 F. Supp. 3d 519 (W.D. La. 2015).publishedCarriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th Cir.1990). .
- Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d 759 (5th Cir. 2011).publishedCarriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th Cir.1990).
- Cal-dive Intern., Inc. v. Seabright Ins. Co., 627 F.3d 110 (5th Cir. 2010).publishedCarriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th Cir.1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)).
- Cal-Dive Int'l, Inc. v. Seabright Ins., 627 F.3d 110 (5th Cir. 2010).publishedCarriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th Cir.1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986)).
- Stewart v. Mississippi Transp. Comm'n, 586 F.3d 321 (5th Cir. 2009).published We will affirm the district court's decision if we "find that no genuine issue of material fact remained for trial and that judgment was proper as a matter of law." Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 102 (5th Cir.1990) (citing…
- Hazelton v. Union Pac. R.R. Co., 497 F. Supp. 2d 800 (W.D. La. 2007).published(summary judgment will always be appropriate in favor of a defendant against whom there is no possibility of recovery)
- Ford v. Elsbury, No. 93-05365 (5th Cir. Sept. 9, 1994).published
- Burden v. Gen. Dynamics Corp., 60 F.3d 213 (5th Cir. 1995).published
- Undray D. Ford, Etc. v. Ernie Elsbury, 32 F.3d 931 (5th Cir. 1994).published
Show 12 more citing cases
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- Krim v. BancTexas Grp., Inc., No. 92-1208 (5th Cir. May 7, 1993).published
- Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398 (5th Cir. 1993).published
- Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560 (5th Cir. 1995).published
- Ross v. Pierce, No. 96-60312 (5th Cir. Nov. 22, 1996).unpublished
- Solo Serve Corp. v. Westowne Assocs., 929 F.2d 160 (5th Cir. 1991).published
- Mann v. Princeton Cmty. Hosp. Ass'n., Inc., 956 F.2d 1162 (4th Cir. 1992).unpublished
- Fed. Sec. L. Rep. P 97,451 Jerry Krim, on Behalf of Himself & All Others Similarly Situated v. Banctexas Grp., Inc., Banctexas Grp., Inc., 989 F.2d 1435 (5th Cir. 1993).published
- Resolution Trust Corp. v. Sharif-Munir-Davidson Dev. Corp., 992 F.2d 1398 (5th Cir. 1993).published
- Charlene Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388 (5th Cir. 1994).published
- Miller v. Home Depot, U.S.A., Inc., 199 F. Supp. 2d 502 (W.D. La. 2001).published
- Wind v. Eli Lilly & Co., 814 F. Supp. 305 (E.D.N.Y 1993).published
At page 101 Determining intentional tort for workers' compensation immunity18 citing casesOrdinarily, Louisiana law imposes no duty to protect against the criminal acts of third persons. However, a duty to protect against foreseeable criminal misconduct may arise from a special relationship.” (internal citations omitted)
- John Doe v. DeRay Mckesson, 945 F.3d 818 (5th Cir. 2019).published(Ordinarily, Louisiana law imposes no duty to protect against the criminal acts of third persons. However, a duty to protect against foreseeable criminal misconduct may arise from a special relationship.” (internal cita…)
- Dollar v. Gen. Motors Corp., 814 F. Supp. 538 (E.D. Tex. 1993).published
- Charkhian v. Nat'l Env't Testing, Inc., 907 F. Supp. 961 (M.D. La. 1995).published
- Pinsonat v. JE Merit Constructors, Inc., 962 F. Supp. 848 (M.D. La. 1996).published
- Mclin v. H & H Lure Co., 102 F. Supp. 2d 341 (M.D. La. 2000).published
- Pate v. Adell Compounding, Inc., 970 F. Supp. 542 (M.D. La. 1997).published
- Martin v. The Kroger Co., No. 99-20989 (5th Cir. June 27, 2000).unpublished
- Tenner v. Prudential Ins. Co. of Am., 872 F. Supp. 1571 (E.D. Tex. 1994).published
- Com. Sav. Bank v. Com. Fed. Bank, 939 F. Supp. 674 (N.D. Iowa 1996).published
- Iwag v. Geisel Compania Maritima, S.A., 882 F. Supp. 597 (S.D. Tex. 1995).published
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- Bolivar v. R & H Oil & Gas Co., Inc., 789 F. Supp. 1374 (S.D. Miss. 1991).published
- Wellons v. Grayson, 583 So. 2d 1166 (La. Ct. App. 1991).published
- Haines v. Nat'l Union Fire Ins., 812 F. Supp. 93 (S.D. Tex. 1993).published
- Doe v. Cloverleaf Mall, 829 F. Supp. 866 (S.D. Miss. 1993).published
- Kasprzak v. Am. Gen. Life & AcciDent Ins. Co., 914 F. Supp. 144 (E.D. Tex. 1996).published
- Jackson v. Wilson, 4 F. Supp. 2d 671 (E.D. Tex. 1998).published
- Arzehgar v. Dixon, 150 F.R.D. 92 (S.D. Tex. 1993).published
- French v. State Farm Ins., 156 F.R.D. 159 (S.D. Tex. 1994).published
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- Mildred MARSHALL, Plaintiff-Appellant, v. MANVILLE SALES Corp., Defendant-Appellee, & Robert L. Mason, Defendant, 6 F.3d 229 (4th Cir. 1993).published
v.
SEARS, ROEBUCK AND COMPANY, Et Al., Defendants-Appellees
The survivors of Samuel Carriere appeal the removal and eventual dismissal of their wrongful death and survival actions against a number of defendants. We affirm.
I.
Samuel Carriere, a Sears, Roebuck and Company (Sears) security supervisor, was killed by unidentified assailants while he was investigating suspicious activity on the Sears loading dock. William Mclnnis, a part-time Sears security employee, was also on duty when the incident occurred.
The Sears store where this incident occurred is located in a shopping mall that is owned by a number of owners in distinct parcels. Sears owns the tract on which its store is located, and Connecticut General Life Insurance Company (Connecticut General) owns the adjoining tract. Sears handles its own security; Connecticut General contracted with Sizeler Real Estate Management Company (Sizeler), to provide the security on its property.
Carriere’s survivors filed a state court action against Mclnnis, Sears, Connecticut General, and Sizeler. Two of the defendants, Sizeler and Mclnnis, were nondi-verse. The diverse defendants removed the case and alleged that the plaintiffs had fraudulently joined the nondiverse defendants. Carriere made a timely motion to remand; Sizeler and Sears filed motions for summary judgment.
The district court set a single hearing date for both the motion to remand and the motions for summary judgment. Before the hearing on these motions, the plaintiffs sought a continuance to conduct further discovery. The trial court, noting that it had granted two previous motions to continue the hearing, denied a further continuance and went forward with the hearing. Finding that the nondiverse defendants were fraudulently joined, the district court[*100] denied the motion to remand. The court then struck all of the plaintiffs’ affidavits for various deficiencies and granted summary judgment to Sears and Sizeler.
The court also later granted Connecticut General’s motion for summary judgment. Carriere’s survivors in this appeal complain that the district court erred in: (1) denying their motion to remand; (2) refusing to continue the hearing to permit them to conduct further discovery; and (3) granting the summary judgment motions of Sizeler and Connecticut General.
II.
A.
The plaintiffs first contend that the district court erred in denying the motion to remand. [2] In particular, the plaintiffs complain of the district court’s ruling that defendants Mclnnis and Sizeler were fraudulently joined to defeat federal jurisdiction. In the plaintiffs’ view, the district court should have accepted the factual allegations of the original state court petition and should not have considered affidavits and depositions in deciding the merits of the motion to remand.
While we have frequently cautioned the district courts against pretrying a case to determine removal jurisdiction, we have also endorsed a summary judgment-like procedure for disposing of fraudulent join-der claims. In B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir.1981), we carefully discussed the procedures for assessing fraudulent joinder claims and noted that “the proceeding appropriate for resolving a claim of fraudulent joinder is similar to that used for ruling on a motion for summary judgment_” Id. at 549 n. 9. The B., Inc. court expressly authorized consideration of evidence outside of the pleadings:
In support of their removal petition, the defendants may submit affidavits and deposition transcripts; and in support of their motion for remand, the plaintiff may submit affidavits and deposition transcripts along with the factual allegations contained in the verified complaint.
Id. at 549. Similarly, in Keating v. Shell Chemical Co., 610 F.2d 328 (5th Cir.1980), we approved “piercing the pleadings” to determine controlling state law for purposes of resolving fraudulent joinder questions. We remanded that case for a determination “[b]y summary judgment or otherwise” whether joinder was fraudulent. Id. at 333.
In short, this circuit treats fraudulent joinder claims as capable of summary determination. When determining fraudulent joinder, the district court may look to the facts as established by summary judgment evidence as well as the controlling state law. Hence, the trial court properly considered affidavits and depositions in ruling on the plaintiffs’ motion to remand. We now turn to the plaintiffs’ argument that the district court erred in determining that the nondiverse parties were fraudulently joined.
B.
The removing party bears the burden of demonstrating fraudulent joinder. Laughlin v. Prudential Ins. Co., 882 F.2d 187, 190 (5th Cir.1989). The diverse defendants in this case contend that the nondiverse defendants, Mclnnis and Sizeler, were fraudulently joined because the plaintiff had no possibility of obtaining judgment against them. The standard for judging fraudulent joinder claims of this sort is clearly established in this circuit: After all disputed questions of fact and all ambiguities in the controlling state law are resolved in favor of the nonremoving party, the court determines whether that party has any possibility of recovery against the party whose joinder is questioned. B., Inc. [*101] v. Miller Brewing Co., 663 F.2d at 551. We will examine defendants’ claim of fraudulent joinder against each nondiverse party in turn.
1. Mclnnis
The defendants contend that joinder of William Mclnnis was fraudulent because Mclnnis, as Samuel Carriere’s co-employee, is entitled to tort immunity under the Louisiana workers’ compensation scheme. See La.Rev.Stat.Ann. § 23:1032. The plaintiffs argue that Mclnnis is not entitled to tort immunity because he committed an intentional act. We agree with the district court that the plaintiffs could not possibly recover against Mclnnis and that Mclnnis was therefore fraudulently joined.
An intentional act for purposes of Louisiana workers’ compensation immunity means an intentional tort. Bazley v. Tortorick, 397 So.2d 475, 480 (La.1981). To prove “intent” under Louisiana law, the plaintiff must at least prove that the actor was substantially certain that harmful consequences would result from his conduct. Mayer v. Valentine Sugars, Inc., 444 So.2d 618, 621 (La.1984).
The plaintiffs’ original state court petition included an allegation that Mclnnis was “substantially certain” that his inaction would result in harm to Carriere. But Mclnnis, in his affidavit, stated that he saw Carriere leave the control room but had no knowledge where Carriere was going or that he was likely to be in danger. In opposition to this affidavit, plaintiffs rely on the affidavit of the police officer who investigated Carriere’s murder. According to the officer, Mclnnis told him after the incident that he “should have” accompanied Carriere to the loading dock.
Construing, as we must, all disputed facts in the plaintiffs’ favor, we still find no possibility of recovery by plaintiffs against Mclnnis on an intentional tort theory. The officer’s affidavit, the only factual support for the plaintiffs’ intentional act allegation, shows only that Mclnnis, after Carriere’s tragic murder, wished he had accompanied Carriere to assist him. This is not enough to allow a factfinder to infer that Mclnnis knew or was substantially certain that harm would befall Carriere. See Kent v. Joma Products, Inc., 542 So.2d 99, 100-01 (La.App. Cir.1989); Davis v. Southern Louisiana Insulations, 539 So.2d 922, 924 (La.App.1989).
Thus, viewing the facts most favorably to the plaintiffs, they could not possibly recover from Mclnnis. We therefore agree with the trial court that Mclnnis was fraudulently joined.
2. Sizeler
The plaintiffs also sued Sizeler Real Estate Management Company on a theory that Sizeler failed to take reasonable measures to protect Carriere against a threat of criminal harm. Ordinarily, Louisiana law imposes no duty to protect against the criminal acts of third persons. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984). However, a duty to protect against foreseeable criminal misconduct may arise from a special relationship. For example, an innkeeper may be required, under some circumstances, to take reasonable measures to protect its guests against criminal activity. Banks v. Hyatt, 722 F.2d 214 (5th Cir.1984). Likewise, business owners must take reasonable steps to protect those who enter their premises from the foreseeable criminal acts of others. See Harris, 455 So.2d at 1369.
The plaintiffs do not argue that a special relationship existed between Sizeler and Sears security employees such as Carriere. However, relying on Harris v. Pizza Hut, the plaintiffs contend that because Sizeler guards crossed Sears’ property during its patrol, had handled unspecified criminal incidents there, had changed light bulbs on the Sears lot, and had control over the source of power for Sears’ parking lot lights, Sizeler assumed a duty to protect Carriere against criminals.
Carriere’s reliance on Harris is misplaced. In Harris, the Louisiana Supreme Court found that Pizza Hut assumed a duty to protect customers on its premises when it provided a security guard. The case before us has none of the features of Harris. Sizeler had no relationship, special or otherwise, with Carriere. Carriere was not a Sizeler patron. Carriere was not on[*102] Sizeler’s “premises” when he was killed, but instead was on Sears’ premises, which he had been hired to protect.
Most importantly, in Harris, the business owner had taken affirmative action to protect its patrons by hiring a security guard for that purpose. By contrast, the plaintiffs’ evidence, viewed as favorably to them as possible, shows only that Sizeler personnel occasionally crossed the Sears parking lot and had some minimal involvement with lighting the entire parking area including that allotted to Sears.
This conduct by Sizeler employees is compatible with its efforts to protect Connecticut General’s property as required by Sizeler’s contract with Connecticut General. The facts do not support the conclusion that Sizeler assumed a duty to protect Sears property or personnel. See Kane v. Braquet, 368 So.2d 1176, 1182 (La.App.), writ denied, 369 So.2d 1366 (La.1979) (company did not assume a duty to protect third persons from criminal attack simply by taking security measures solely for its own benefit). The district court correctly concluded that the plaintiff had no possibility of recovering from Sizeler and that Sizeler was therefore fraudulently joined.
III.
Appellants next raise a number of objections to the district court’s rulings on ap-pellees’ motions for summary judgment.
A.
The plaintiffs first argue that they had inadequate opportunity to conduct discovery before the hearing on the motions for summary judgment filed by Sears and Sizeler. The plaintiffs contend that under Rule 56(f), the district court should have granted them additional time to complete discovery before the summary judgment hearing. Denial of a continuance under Rule 56(f) is governed by an abuse of discretion standard. Fontenot v. Upjohn Co., 780 F.2d 1190, 1193 (5th Cir.1986). We find no abuse of discretion.
This case was removed to federal court over four months before the hearing on the motions for summary judgment. The record reveals that the plaintiffs took little or no action toward completing discovery during this time.
The plaintiffs did not explain to the district court why they had not completed discovery in the time already allotted. The only justification the plaintiffs offered for an additional delay was that the district court had not yet ruled on the motion to remand. The plaintiffs were not, however, entitled to have the trial judge rule on the motions in any particular order. Therefore, the fact that a motion for remand was pending does not excuse failing to pursue discovery diligently. Under these circumstances, the district court did not abuse its discretion in denying the plaintiffs a further continuance.
B.
Finally, the plaintiffs contend that Sizeler and Connecticut General were not entitled to summary judgment. To uphold a summary judgment, we must find that no genuine issue of material fact remained for trial and that judgment was proper as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Because we have already concluded that Sizeler was fraudulently joined, we need not consider appellant’s argument on this point further. Summary judgment will always be appropriate in favor of a defendant against whom there is no possibility of recovery.
We also find that all of the plaintiffs’ theories against Connecticut General are deficient. The plaintiffs first argue that Connecticut General could be vicariously liable for Sizeler’s negligence. Since we have already determined that Sizeler owed no duty to Carriere, it is clear that no vicarious liability for Sizeler’s fault would flow to Connecticut General.
Plaintiffs next argue that Connecticut General somehow assumed responsibility for security in the Sears loading area, and thereby assumed a duty to protect Carriere against criminal acts of others. But the plaintiffs offered no summary judgment evidence to support this argument. The available summary judgment evidence refutes this contention.
[*103] The plaintiffs’ final argument seems to be that as the owner of a business premises, Connecticut General owed a duty to protect Carriere, the security guard on an adjacent premises, from the risk of criminal harm. We have already noted that Louisiana law under some circumstances imposes a duty on owners of business places to protect others against the risk of criminal harm. However, that duty has been extended beyond the actual business premises only in very rare circumstances, and then only when some specific relationship existed between the plaintiff and the defendant. See Banks v. Hyatt, 722 F.2d 214 (5th Cir.1984). See also Weldon v. Great Atlantic & Pacific Tea Co., 818 F.2d 459, 461 (5th Cir.1987). Because Carriere was not on the Connecticut General premises when he was attacked, and because no special relationship existed between Carriere and Connecticut General, Connecticut General owed no duty to Carriere. Connecticut General was therefore entitled to judgment in its favor as a matter of law.
AFFIRMED.
. Appellees, relying on Ninth Circuit authority, contend that because Carriere's survivors did not seek interlocutory review of the district court's denial of their motion to remand, they are now foreclosed from seeking such review. See Johnson v. Mutual Benefit Life Ins. Co., 847 F.2d 600, 602-03 (9th Cir. 1988); Sorosky v. Burroughs Corp., 826 F.2d 794, 798-99 (9th Cir. 1987). Our circuit has not adopted this position. We consider the plaintiffs’ motion to remand sufficient objection to removal to preserve the point for later appeal after final judgment is entered. Paxton v. Weaver, 553 F.2d 936, 942 (5th Cir. 1977).