United States District Court, M.D. Louisiana
STEPHEN C. RIEDLINGER, Magistrate Judge.
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.
In accordance with 28 U.S.C. §636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT
Before the court is a Motion to Remand filed by plaintiffs Renetta and Rolon Glover. Record document number 5. The motion is opposed.
Based on the applicable law and the analysis which follows, the plaintiffs' Motion to Remand should be granted.
On November 4, 2013, the plaintiffs filed a Petition for Damages in state court against defendants DG Louisiana, LLC, Dolgencorp, LLC (collectively "Dollar General") and K & L Real Estate, LLC ("K & L") for damages arising from a slip and fall accident at a Dollar General store located in Baton Rouge, Louisiana. Dollar General removed the state court action on March 17, 2014 based on diversity jurisdiction under 28 U.S.C. § 1332(a) and argued that Louisiana defendant K & L was improperly joined. Plaintiffs moved to remand the case. The Court found that the K & L was not improperly joined because a provision in the lease agreement between Dollar General and K & L created a reasonable possibility of liability under Louisiana law for K & L. Plaintiff's motion to remand was granted.
On October 27, 2014 the state court granted a Motion for Summary Judgment filed by K & L and dismissed the plaintiffs' claims against it. Defendant Dollar General then filed a second Notice of Removal on November 3, 2014 pursuant to 28 U.S.C. 1446(b)(3). Defendants asserted that diversity jurisdiction now exists because of the state court order which dismissed the plaintiffs' claims against K & L. In the alternative, the defendants argued that removal is proper because testimony from the corporate representatives of K & L and Dollar General at depositions taken on October 15 and 24, 2014 established that Dollar General was responsible for maintaining the interior of the store. Thus, defendant Dollar General argued, K & L could not be liable to the plaintiffs under LSA-R.S. 9:3221 and therefore was improperly joined.
Plaintiffs moved to remand arguing that since K & L was not dismissed though the voluntary actions of the plaintiffs, the voluntary-involuntary rule bars removal. Plaintiffs also argued that the court's prior finding that K & L was not improperly joined should stand and that weighing the evidence produced by the defendants should not determine the jurisdictional issue.
In their opposition the defendants reasserted their arguments made in the Notice of Removal. Defendants also argued that the Motion to Remand was untimely because it was not properly filed within 30 days of the Notice of Removal as required by § 1447(c). Defendants argued that the 30-day time limitation was applicable because a motion to remand based on the voluntary-involuntary rule relies on a procedural defect with the removal.
It is well settled that when faced with a motion to remand, the removing party bears the burden of establishing the facts necessary to show that federal jurisdiction exists. Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335, rhrg. denied, 70 F.3d 26 (5th Cir. 1995). A defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). "If jurisdiction is based on diversity of citizenship, however, the action is removable only if there is complete diversity and none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.'" Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 531-32 (5th Cir. 2006) (quoting 28 U.S.C. § ...