United States District Court, W.D. Louisiana, Lafayette Division
PATRICK J. HANNA, Magistrate Judge.
Pending before the Court is the plaintiff's motion to remand (Rec. Doc. 8). The motion is opposed. Oral argument was heard on April 28, 2015. Following the hearing, the undersigned ordered the removing defendants to amend their removal notice with summary-judgment-style evidence proving the citizenship of the parties to this lawsuit and ordered all of the parties to supplement their arguments regarding the alleged improper joinder of defendants AssuredPartners Gulf Coast Insurance Agency, LLC and Frankie S. Harris, III. (Rec. Doc. 24). The parties complied with the order (Rec. Docs. 25, 26, 28, 29), and the undersigned has reviewed the additional submissions. Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, the motion to remand is DENIED.
The factual background set forth in the order of May 15, 2015 (Rec. Doc. 24) is incorporated herein by reference.
Defendants Liberty Mutual Insurance Company and Peerless Insurance Indemnity Company contend that this Court has subject-matter jurisdiction over this action under 28 U.S.C. §1332 because the amount in controversy exceeds the jurisdictional minimum and the parties are diverse in citizenship when the citizenship of the allegedly improperly joined defendants is ignored.
The undersigned previously found that it is facially apparent from the plaintiff's First Amended, Supplemental and Restated Petition for Damages and Declaratory Judgment (hereinafter "the restated petition") that the amount in controversy exceeds the $75, 000 statutory threshold for jurisdiction under 28 U.S.C. § 1332. (Rec. Doc. 24). The analysis used in reaching that conclusion is incorporated herein by reference.
However, in the prior order (Rec. Doc. 24), the undersigned explained that the removing defendants had failed to prove the citizenship of each of the parties, precluding the undersigned from determining whether the plaintiff was diverse in citizenship from all of the defendants. The removing defendants were ordered to amend their removal notice to provide additional information to be used in evaluating the parties' citizenship (Rec. Doc. 24), and the removing defendants complied with that order (Rec. Doc. 28). Based on the additional information provided, the undersigned now finds that the plaintiff is a citizen of Louisiana, defendant AssuredPartners is a citizen of Delaware and Florida, defendant Mr. Harris is a citizen of Louisiana, defendant Liberty Mutual is a citizen of Massachusetts, and defendant Peerless is a citizen of Illinois and Massachusetts. Because the plaintiff and Mr. Harris are both citizens of Louisiana, the parties are not completely diverse.
The removing defendants argue, however, that Mr. Harris's citizenship should be disregarded because he was improperly joined as a defendant in this lawsuit. To establish the improper joinder of a non-diverse defendant, the removing defendants must demonstrate either: (1) actual fraud in the pleading of jurisdictional facts, or (2) the inability of the plaintiff to establish a cause of action against the non-diverse party in state court. The removing defendants have not alleged any actual fraud in this case; instead, they contend that the plaintiff has no possibility of recovering against Mr. Harris.
A defendant who contends that a non-diverse party is improperly joined has a heavy burden of proof. The court must ordinarily evaluate all of the factual allegations in the plaintiff's state-court pleadings in the light most favorable to the plaintiff, resolving all contested issues of substantive fact in favor of the plaintiff. If the court then finds that there is no possibility of recovery against the non-diverse party, the non-diverse party has been improperly joined, and its citizenship must be disregarded for jurisdictional purposes. The test to be applied in evaluating improper joinder is "whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant."
Employing that test, the court first looks to the allegations of the complaint to determine whether it states a claim against the in-state defendant,  reading them leniently in favor of remand, under a standard similar to that used in evaluating a Rule 12(b)(6) motion to dismiss. If the defendant argues that the plaintiff has misstated or omitted discrete facts that would preclude recovery against the in-state defendant, however, the court may, in its discretion, pierce the pleadings and conduct a summary inquiry. In such cases, the court may consider summary judgment-type evidence. The burden of proof remains with the removing parties to show that there is no possibility of recovery against the nondiverse defendant.
Here, the removing defendants argue that any claim against Mr. Harris has perempted. It is undisputed that the timeliness of the plaintiff's claim against Mr. Harris is governed by La. R.S. 9:5606(A), which reads as follows:
No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
Subsection D of the same statute makes it clear that both the one-year time period and the three-year time period established in the statute are peremptive periods that cannot be renounced, interrupted, or suspended. Therefore, to be timely, the plaintiff's claim must have been brought not more than one year after the date or discovery of a negligent act or omission but ...