United States District Court, W.D. Louisiana, Alexandria Division
November 13, 2014
ALISON GIFFORD, ET AL
METROPOLITAN PROPERTY & CAS. CO., ET AL
For Alison Gifford, John Gifford, Plaintiffs: Jerold Edward Knoll, Jr, LEAD ATTORNEY, Edmond Humphries Knoll, Laura B Knoll, Knoll Law Firm, Marksville, LA.
For Metropolitan Property & Casualty Insurance Co, Defendant: Russell L Potter, LEAD ATTORNEY, Andrew P Texada, Stafford Stewart & Potter, Alexandria, LA.
JAMES D. KIRK, UNITED STATES MAGISTRATE JUDGE. DISTRICT JUDGE DRELL.
REPORT AND RECOMMENDATION
JAMES D. KIRK, UNITED STATES MAGISTRATE JUDGE.
Before the court is plaintiff's motion to remand, doc. #16. Plaintiffs sued their uninsured motorist carrier, Metropolitan, in state court for injuries allegedly sustained in an automobile accident. Plaintiff did not originally sue the Louisiana adverse driver because he is alleged to have been uninsured (and presumably, judgment proof). After the case was timely removed to this court, plaintiff, with consent of defendant, added the adverse driver as a party defendant, by order of the District Judge.
If, after removal, the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder or permit joinder and remand the case to state court. 28 U.S.C. § 1447(e).
Defendant argues in brief that this court should exercise its discretion to retain jurisdiction until service is made on the new defendant. Defendant cites no legal authority for that proposition but does state a compelling argument that, if service of process is not required, a party can simply name a diversity-destroying defendant and not make service on him for the sole purpose of destroying federal jurisdiction. Despite the logic of that argument, the statute is clear: if a diversity destroying party is allowed to be added as a defendant, the court must remand the case to state court.
The District Judge, after considering the required factors, exercised his judgment to allow the amendment. Therefore, the case must be remanded to state court.
Therefore, IT IS RECOMMENDED that the Motion to Remand be GRANTED and this case be remanded to the 12th Judicial District Court, Parish of Avoyelles, State of Louisiana.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the parties have fourteen (14) calendar days from service of this Report and Recommendation to file specific, written objections with the clerk of court. . A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. No other briefs (such as supplemental objections, reply briefs etc.) may be filed. Providing a courtesy copy of the objection to the magistrate judge is neither required nor encouraged. Timely objections will be considered by the district judge before making a final ruling.
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN FOURTEEN (14) CALENDAR DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT UPON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UN-OBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.