United States District Court, E.D. Louisiana
ZAINEY UNITED STATES DISTRICT JUDGE
the Court is an Amended Motion to Remand to State Court (Rec.
Doc. 67) filed by Plaintiff Michelle Nogess. Plaintiff Debra
Yates joins the Motion. (Rec. Doc. 69). Defendant Velocity
Consulting, Inc. (“Velocity”) opposes the Motion.
(Rec. Doc. 76). Defendant Clampett Industries joins
Velocity's opposition. (Rec. Do. 77). The Motion, set for
submission on March 8, 2017, is before the Court on the
briefs without oral argument.
matter arises out of an accident wherein Tyrone Nogess drove
a vehicle through the barrier system of the Poydras Center
parking garage, fell to the ground in his vehicle, and died.
His widow, Plaintiff Michelle Nogess brought a lawsuit on
behalf of her husband, herself, and her children against
Defendants: Poydras Center LLC, Poydras Center Manager LLC,
Bobby Schloegel, the Travelers Casualty Company, Clampett
Industries LLC, and Velocity Consulting, Inc. Plaintiff Debra
Yates also brought a lawsuit against Defendants claiming
damages as a result of sitting in her car next to the impact
zone where Tyrone Nogess fell. Defendant Velocity Consulting
then removed this case to Federal Court.
now move to remand this matter to state court alleging that
Velocity failed to meet its burden to allege citizenship of
the parties on the face of its amended removal notice.
Plaintiffs further argue that Defendant Bobby Schloegel was
not improperly joined in this matter.
argue that Plaintiffs waived any procedural defects by
failing to file a response to the amended notice of removal
within the time period specified by the Court, that the Court
should allow Velocity to amend its Notice of Removal, and
that Bobby Schloegel was improperly joined in this matter.
Notice of removal
Court finds Velocity's argument that Plaintiffs waived
any procedural defects of no avail. The Court further finds
that Velocity's Notice of Removal is defective on its
face. Several of the Defendants are limited liability
companies. The citizenship of limited liability companies is
determined by the citizenship of its members. Harvey v.
Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir.
2008). In order to establish diversity of citizenship, the
notice of removal “must allege diversity both at the
time of filing the suit in state court and at the time of
removal.” In re Allstate Ins. Co., 8 F.3d 219,
221 (5th Cir. 1993). The Amended Notice of Removal alleges
diversity at the time of filing of Plaintiff's petition,
but does not set forth the citizenships of the members of
Poydras Center, LLC or Clampett Industries LLC at the time
Velocity removed this case to federal court. (Rec. Doc. 65).
Moreover, Velocity names Josam Defined Benefit Plan as a
member of Poydras Center Member, LLC without identifying
individual participants. (Rec. Doc. 65).
Court finds that, under the circumstances, Velocity is
permitted to amend its defective Notice of Removal. A
defendant may freely amend a notice of removal within the
30-day period set out in 28 U.S.C. § 1446(b).
Richardson v. United Steel Workers of Am., 864 F.2d
1162, 1165 (5th Cir. 1989). After this 30-day period, a
defendant may still amend its notice of removal in order to
cure technical defects of jurisdictional allegations in a
notice of removal. Manzella v. United Parcel Service,
Inc., 2002 WL 31040170, *8 (E.D. La. 2002) (Wilkinson,
Joseph C.). Defendants are allowed to more specifically set
out the grounds for removal that have already been stated.
Giardina v. Mentor Corp., 1997 WL 346723, *1 (E.D.
La. 1997) (citing D.J. McDuffie, Inc. v. Old Reliable
Fire Ins. Co., et al., 608 F.2d 145, 146 (5th Cir.
1979)). Therefore, Velocity is permitted to amend its amended
notice of removal insofar as it cures only the technical
defects of the notice of removal, including alleging
citizenship of the members of each defendant limited
liability company at the time of removal.
Court must now turn to the larger issue of jurisdiction,
which turns on whether Bobby Schloegel was improperly joined.
If Schloegel was improperly joined, then the Court has
jurisdiction over this matter under 1332 diversity
jurisdiction. However if Plaintiff has a valid claim against
Schloegel, a Louisiana citizen, then diversity is destroyed
and this Court no longer has jurisdiction over this matter.
the doctrine of improper joinder, or fraudulent joinder
doctrine, “the presence of an improperly
joined non-diverse defendant” does not defeat federal
diversity jurisdiction. Borden v. Allstate Ins. Co.,
589 F.3d 168 171 (5th Circ. 2009). Courts must look at
“whether the defendant has demonstrated that there is
no possibility of recovery by the plaintiff against an
in-state or nondiverse defendant.” Salazar v.
Allstate Texas Lloyd's, Inc., 455 F.3d 571 (5th
Circ. 2006) (citing Smallwood v. Ill. Cent. R.R.,
385 F.3d 568 (5th Cir.2004)). The removing party bears ...