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Boudreaux v. Redmon

United States District Court, M.D. Louisiana

October 22, 2017

DENETRA BOUDREAUX
v.
MELVIN REDMON, ET AL.

          NOTICE AND ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         This is 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.[1] 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.[2] The matter was removed to this Court on October 18, 2017 by Redmon, Davis Distributing, Inc., Davis Gate & Wire Manufacturing, Inc.[3] and Travelers Property Casualty Company of America[4] on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a).[5]

         Despite 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 In an unpublished opinion, the Fifth Circuit has stated that, “Under 28 U.S.C. § 1441(a), only a defendant may remove a civil action from state court to federal court.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).

         Here, Plaintiff's Petition for Damages alleges the following:

         Suddenly 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.

         The collision caused by the negligence of MELVIN REDMON caused serious injuries to DENETRA BOUDREAUX.

         In no way did DENETRA BOUDREAUX contribute to any cause of this accident.

         Upon information and belief, at the time of the accident, MELVIN REDMON was in the course and scope of his employment with DAVIS DISTRIBUTING, INC.

         . . . .

         Petitioners 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.

         Petitioners 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.[6]

         Based 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.

         With 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 ...

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