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Ashley v. Devon Energy Corp.

United States District Court, M.D. Louisiana

January 30, 2015

KENNETH ASHLEY, ET AL
v.
DEVON ENERGY CORP., ET AL

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RICHARD L. BOURGEOIS, Jr., Magistrate Judge.

Before the court is Plaintiff's Motion to Remand. (R. Doc. 5). The motion is opposed. (R. Doc. 6). Based on the following, the Motion to Remand should be denied.

I. BACKGROUND

On or about May 2, 2014, Kenneth Ashley and Gerald Paul Bellanger, Jr. (collectively, "Plaintiffs") filed this suit in the 18th Judicial District Court for the Parish of Iberville, Louisiana ("State Court"), naming as defendants Devon Energy Corporation, Devon Energy Production Company, L.P., and Equipment, Inc. Plaintiffs own approximately 108 acres of property in Iberville Parish and allege that the Defendants contaminated the property's soil, groundwater, and surface water while conducting oil and gas exploration and production on the property. (R. Doc. 1-2 at 5-8). Plaintiffs allege that the contaminants include "naturally occurring radioactive materials" (NORM), produced water, and drilling fluid. (R. Doc. 1-2 at 8-12). Plaintiffs allege that between 1980 and 1984, many of the named Defendants buried wastes to avoid meeting closure standards that became effective on January 1, 1986. (R. Doc. 1-2 at 10).

Plaintiffs raise various causes of actions sounding in tort, contract, and pursuant to the Louisiana Mineral Code. (R. Doc. 1-2 at 12-16). Plaintiffs are seeking recovery of restoration damages, assessment and response costs, stigma damages, as well as declaratory and injunctive relief. (R. Doc. 1-2 at 16-18).

Devon Energy Corporation and Devon Energy Production Company, L.P. ("Removing Defendants") removed the action on August 15, 2014, alleging that the court has diversity jurisdiction. (R. Doc. 1). The Removing Defendants allege that they are citizens of Delaware and Oklahoma, and the Plaintiffs are citizens of Louisiana. (R. Doc. 1 at 3-4). The Removing Defendants further allege that Equipment, Inc. (which is a citizen of Louisiana) is a defunct corporation not subject to suit and, therefore, its citizenship may be disregarded as it was improperly joined. (R. Doc. 1 at 3-6). Equipment, Inc. has not been served. (R. Doc. 1 at 3).

The Removing Defendants attached documents to their Notice of Removal in support of a finding that Equipment, Inc. is an improperly joined defendant. The Removing Defendants attached an affidavit of Robert Carpenter, which provided the following:

1. My name is Robert Carpenter. I am over eighteen years old and am fully capable of making this affidavit. I have personal knowledge of the facts stated herein and they are true and correct to the best of my knowledge.
2. The principal of Equipment, Inc. was my father, Lewis Carpenter. My father died in January 1991.
3. I was employed with Equipment, Inc. from approximately 1976 until 1984.
4. Equipment, Inc. filed for bankruptcy in 1984. I attended the bankruptcy auction, which was held in or about January 1986. It is my understanding that Equipment, Inc. was dissolved prior to my father's death in 1991.
5. Equipment, Inc. is no longer an active corporation.
6. Equipment, Inc. ceased operations and shut down in or ...

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