United States District Court, M.D. Louisiana
NOTICE AND ORDER
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE
a civil action involving claims for damages based upon the
injuries allegedly sustained by Denetra Boudreaux
(“Plaintiff”), as a result of a motor vehicle
accident that occurred on or about August 29,
2016. On or about August 30, 2017, Plaintiff
filed a Petition for Damages against Melvin Redmon, Davis
Distributing, Inc. and Travelers Property Casualty Insurance
Company (collectively, “Defendants”) in the
Nineteenth Judicial District Court for the Parish of East
Baton Rouge, State of Louisiana. The matter was removed to
this Court on October 18, 2017 by Redmon, Davis Distributing,
Inc., Davis Gate & Wire Manufacturing, Inc. and Travelers
Property Casualty Company of America on the basis of diversity
jurisdiction under 28 U.S.C. § 1332(a).
the assertion by the removing parties that Davis Gate &
Wire Manufacturing, Inc. and Travelers Property Casualty
Company of America were incorrectly named in the state court
Petition for Damages, 28 U.S.C. § 1441(a) provides that,
“Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of which
the district courts of the United States have original
jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a) (emphasis
added). In an unpublished opinion, the Fifth Circuit has
stated that, “Under 28 U.S.C. § 1441(a), only a
defendant may remove a civil action from state court to
federal court. A non-party, even one that claims to be a real
party in interest, lacks the authority to institute removal
proceedings.” De Jongh v. State Farm Lloyds,
555 Fed.Appx. 435, 437 (5th Cir. 2014) (citing Salazar v.
Allstate Tex. Lloyd's, Inc., 455 F.3d 571, 575 (5th
Cir. 2006)). The De Jongh court further explained
that, “In Salazar, we held, under facts nearly
identical to those here, that a district court cannot
‘create removal jurisdiction based on diversity by
substituting parties.'” De Jongh, 555
Fed.Appx. at 438 (citing Salazar, 455 F.3d at 573).
However, other courts in this Circuit have distinguished
situations in which a removing party is merely misnamed
(i.e., all parties agree that the removing party is
the proper defendant) and the court “would not be
manufacturing diversity jurisdiction based on inserting
defendants into or dismissing them from a case.”
Lefort v. Entergy Corp., Civ. A. No. 15-1245, 2015
WL 4937906, at *3 (E.D. La. Aug. 18, 2015).
Plaintiff's Petition for Damages alleges the following:
and without warning, the vehicle operated by MELVIN REDMON
left its lane of travel and collided into the side of the
vehicle operated by DENETRA BOUDREAUX.
collision caused by the negligence of MELVIN REDMON caused
serious injuries to DENETRA BOUDREAUX.
way did DENETRA BOUDREAUX contribute to any cause of this
information and belief, at the time of the accident, MELVIN
REDMON was in the course and scope of his employment with
DAVIS DISTRIBUTING, INC.
. . . .
are informed, believes, and therefore alleges that at the
time of the accident the defendant, TRAVELERS PROPERTY
CASUALTY COMPANY OF AMERICA, had issued a liability insurance
policy to MELVIN REDMON and/or DAVIS DISTRIBUTING, INC.,
insuring MELVIN REDMON and/or DAVIS DISTRIBUTING, INC. and
the vehicle REDMON operated, and under the laws of the State
of Louisiana, was in full force and effect at the time of the
accident, and which insurance inures to the benefit of
Petitioners under the provisions of the Louisiana Direct
Action Statute, L.A. R.S. 22:1269.
further allege on information and belief that under the terms
of the said policy, TRAVELERS PROPERTY CASUALTY COMPANY OF
AMERICA obligated itself to pay any and all damages caused to
others as a result of the negligence of MELVIN REDMON in the
operation of said vehicle, and the vehicle being driven by
MELVIN REDMON, described above, was covered by said policy at
the time of said collision.
on the allegations set forth in Plaintiff's Petition for
Damages, it appears that Plaintiff intended to name Melvin
Redmon's employer as a defendant. It also appears that
Plaintiff intended to name as a defendant the insurance
company that had issued an insurance policy to Melvin Redmon
and/or Redmon's employer that allegedly provides coverage
for the underlying accident.
respect to subject matter jurisdiction, the Notice of Removal
contains the following allegations regarding the citizenship
of the parties:
2. Plaintiff names as defendants (1) Melvin Redmon, (2) Davis
Distributing, Inc., and (3) Travelers Property Casualty
Insurance Company. Plaintiff alleges that all defendants are
nonresidents and/or foreign companies. Melvin Redmon is a
resident of and domiciled in the State of Kentucky. Davis
Distributing, Inc. (and Gate & Wire Manufacturing, Inc.)
is formed under the laws of and has its principal place of
business in the State of Kentucky. Travelers Property
Casualty Insurance Company (and Travelers Property Casualty
Company of America) is a foreign insurance company, formed
under the laws of and has its ...