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Nogess v. Poydras Center, LLC

United States District Court, E.D. Louisiana

April 21, 2017

MICHELLE NOGESS
v.
POYDRAS CENTER, LLC et al.

         SECTION: A(5)

          ORDER

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Background

         This 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.

         II. Analysis

         Plaintiffs 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.

         Defendants 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.

         a. Notice of removal

         The 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).

         The 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.

         b. Diversity Jurisdiction

         The 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.

         Under the doctrine of improper joinder, or fraudulent joinder doctrine[1], “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 ...


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