United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations 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 of the Magistrate Judge which have been 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 AND RECOMMENDATION
Before the Court is a referral from the district judge requesting a report and recommendation from the undersigned on removal jurisdiction. (R. Doc. 10). For the reasons provided below the undersigned recommends that the court retain jurisdiction over this matter.
Plaintiffs Bernard Charles, Karl Charles, Latasha Charles, and Jacob Hill ("Plaintiffs") filed this action in the 18th Judicial District Court for the Parish of Pointe Coupee. (R. Doc. 1-2). Plaintiffs alleged that "[o]n or about May 17, 2013, at approximately 7:24 a.m., ... defendant Michael Hill was driving a 2007 Ford F-150 or F-250, owned by defendant, Travis Estes, in the course and scope of his employment for the defendant, Estes Refractory and Insulation of Louisiana, LLC, ... with passengers Bernard Charles, Karl Charles, Jacob Hill, and Nicholas Kristicevich, when suddenly and without warning defendant Michael Hill fell asleep and struck the attenuator/crash cushion head-on...." (R. Doc. 1-2 at 3). Plaintiffs named as defendants Michael Hill, Traves Estes, Ford Motor Company, Progressive Security Insurance Company, Zurich Insurance Company, Houston Specialty - Commercial Automobile Insurance Company, Estes Refractory and Insulation of Louisiana LLC, USAA, and the fictional XYZ Insurance Company as defendants. (R. Doc. 1-2 at 1-2).
Defendant Ford Motor Company ("Ford") removed the action to this court on July 9, 2014. (R. Doc. 1). The Notice of Removal asserts that this court has jurisdiction pursuant to 28 U.S.C. § 1332 as the amount in controversy has been satisfied and "all properly joined parties are diverse." (R. Doc. 1 at 5). In particular, Ford alleges that defendants Estes Refractory and Insulation of Louisiana, LLC; Travis Estes; and Michael Hill "are all improperly joined parties; as the co-employee and employer of the plaintiffs, the only remedy against these parties is in Workers' Compensation." The Notice of Removal sets forth the basis for Ford's position that these defendants have been improperly joined and therefore their citizenship should be disregarded for purposes of determining jurisdiction.
On November 7, 2014, in response to a court order (R. Doc. 14), Ford filed an Amended Notice of Removal providing the correct citizenship of the plaintiffs and principal place of business of defendant Houston Specialty-Commercial Automobile Insurance Company. (R. Doc. 16). This filing confirmed the position in the Notice of Removal that all properly joined parties are diverse. According to Ford, the Plaintiffs are all citizens of Louisiana and the properly joined defendants are citizens of Delaware, Michigan, Ohio, New York, Illinois, and Texas. (R. Doc. 16 at 6-7).
On October 29, 2014, the undersigned ordered that within 21 days of its order the "plaintiffs shall file a brief or appropriate motion regarding jurisdiction, specifically addressing Ford's assertion that certain defendants have been improperly joined." (R. Doc. 13). As of the date of this Report and Recommendation, the plaintiffs have not filed a brief or motion to remand the action for lack of subject matter jurisdiction.
II. Law and Analysis
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). When jurisdiction is based on diversity of citizenship, the cause of action must be between "citizens of different states" and the amount in controversy must exceed the "sum or value of $75, 000, exclusive of interest and costs." 28 U.S.C. § 1332(a)-(a)(1). Subject matter jurisdiction must exist at the time of removal to federal court, based on the facts and allegations contained in the complaint. St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) ("jurisdictional facts must be judged as of the time the complaint is filed"). The removing party has the burden of proving federal jurisdiction and, if ...