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Martin v. Boh Brothers Construction Co.

United States District Court, E.D. Louisiana

October 28, 2014

BRANDY MARTIN, on behalf of her minor children, RONALD MARTIN, III and DAMON MARTIN
v.
BOH BROTHERS CONSTRUCTION CO., L.L.C., ET. AL., SECTION:

ORDER AND REASONS

IVAN L.R. LEMELLE, District Judge.

Nature of Motion and Relief Sought

Before the Court are Plaintiff's Motion to Remand (Rec. Doc. No. 18) and Motion to Consolidate (Rec. Doc. No. 7). Defendants have filed an Opposition to the Motion to Remand (Rec. Doc. No. 19). Defendants have filed a Reply to the Motion to Consolidate. (Rec. Doc. No. 20-2).

IT IS ORDERED that the Motion to REMAND is GRANTED and the Motion to CONSOLIDATE is DISMISSED as MOOT.[1]

I. Procedural History and Facts of the Case

This case arrives on its second removal to this Court from the Orleans Parish Civil District Court. It arises from a workplace accident in which Ronald Martin received a violent blow to his head and neck when cutting a concrete pipe with a STIHL TS-400 "cut-off machine" and while working for Boh Brothers Construction Co., LLC ("Boh Brothers"). (Rec. Doc. No. 4). Rhonda Danos, as curatix for Ronald Martin, initiated a civil suit in state court in March of 2010, asserting claims against STIHL Incorporated, et. al. ("STIHL"), the manufacturer of the cut-off machine, and Boh Brothers, Martin's employer. Id. Brandy Martin, on behalf of her minor children, Ronald Martin, III and Damon Martin ("Brandy Martin, et. al.") filed a similar petition in April of 2010. (Rec. Doc. No. 19).

Defendants removed both cases to this Court, where they were ultimately consolidated (Rec. Doc. No. 18-1, 19). The cases both named Boh Brothers (Louisiana citizen) and STIHL (Virginia citizen) as defendants, and the amount in controversy exceeded $75, 000. (Rec. Doc. No. 19). The Plaintiffs demanded remand. Id. STIHL argued that diversity existed because Boh Brothers was fraudulently joined. Id. STIHL argued that Boh Brothers, as Ronald Martin's employer, was immune from tort suit under the Louisiana Worker's Compensation Act. STIHL further contended that the intentional tort exception La.Rev.Stat.An. ยง 23:1032(B) (1995) that was being alleged by the Plaintiffs did not apply in this matter, citing Louisiana case law. Id. The actions by Danos and Brandy et. al. were initially assigned to this section and consolidated. (Case 14-505, Rec. Doc. No. 13). This Court disagreed that Boh Brothers was fraudulently joined and remanded the cases to Orleans Parish Civil District Court on October 12, 2010. (Rec. Doc. No. 18-1, 19). In that decision, this Court emphasized that "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, not the merits of the Plaintiff's case." (Case No. 10-1469, Rec. Doc. No. 36 at 2 & 5)(quoting Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004)). The consolidated cases proceeded in state court for nearly four years until the Louisiana Supreme Court granted Boh Brother's Motion for Summary Judgment based on the grounds that it enjoyed tort immunity under the Louisiana Worker's Compensation scheme and that the intentional tort exception did not apply. (Case No. 10-1469, Rec. Doc. No. 36).

Defendants filed separate notices of removal on March 6, 2014 for Rhonda Danos and Brandy Martin, et. al. asserting that complete diversity now existed. Id. On March 7, 2014, Defendants filed a Notice of Related Cases associated with the Brandy Martin, et. al. case, claiming the subject matter comprised all or a material part of the subject matter or operative facts involved in the pending Danos case. (Rec. Doc. No. 4). The case was then transferred on March 12, 2014 to this section. Id.

On March 13, 2014, a "Motion to Remand on Behalf of All Plaintiffs" was filed under Civil Action 2:14-cv-00505, the case number assigned to the action by Rhonda Danos. (Rec. Doc. No. 6-1). This Motion to Remand purported to operate for both Rhonda Danos and Brandy Martin, et. al. Id. Brandy Martin, et. al. filed a Motion to Consolidate on April 9, 2014. (Rec. Doc. No. 7).

In response to the March, 2013 Motion to Remand, an order was issued by this Court on July 31, 2014 properly remanding Rhonda Danos's case for lack of subject matter jurisdiction. (Case No. 14-505, Rec. Doc. No. 6-1). This Court made it clear that STIHL was incorrect when it contends that the one-year time-limit for removal does not apply because the case was removable on the face of the original pleadings. Id. The Louisiana Supreme Court granted summary judgment on the merits, not on the basis of fraudulent joinder. Id. The Louisiana Supreme Court decision has no bearing on the prior holding of this Court that the case was not removable on the face of the pleading in 2010, and this second removal is untimely for being far beyond one year of commencement of suit. (Case No. 10-1469, Rec. Doc. No. 13). At the time of this Court's decision remanding the Danos case, there was no motion to remand pending before the Court in the Brandy Martin, et. al. action. On August 1, 2014, Brandy Martin, et. al. filed the Motion to Remand that is being addressed at this time. (Rec. Doc. No. 18).

II. Law & Analysis

The issues raised are three-fold: 1) whether the original Motion to Remand (Case No. 14-505, Rec. Doc. No. 6-1) applied to both cases; 2) whether the Motion to Consolidate (Rec. Doc. No. 7) can operate to effect a remand in this case; and 3) whether the second Motion to Remand (Rec. Doc. No. 18) is effective.

A. Original Motion to Remand

The original Motion to Remand on Behalf of All Plaintiffs was deficient. (Rec. Doc. No. 6-1). The case name was Rhonda Danos, as curatrix of Ronald Matin, Jr. v. STIHL Incorporated. Id. There is no mention of Brandy Martin, et. al. Id. The civil action number was docketed properly as 14:505, the docket number for the Danos case. Under Local Civil Rule 10.2 of the United States District Court for the Eastern District of Louisiana, all subsequent pleadings and findings must list the name and docket number for the case with the lowest docket number; however, no motion for consolidation had been filed at the time, and the cases were not consolidated at ...


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