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Williams v. Sentry Insurance A Mutual Co.

United States District Court, W.D. Louisiana, Monroe Division

November 2, 2017

KENGARRICA WILLIAMS, et al.
v.
SENTRY INSURANCE A MUTUAL CO., et al.

          JAMES JUDGE.

          REPORT AND RECOMMENDATION

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.

         Before the Court is a Motion to Remand and for Attorney Fees filed by Plaintiffs (Doc. 22). Williams' Motions to Remand and for Attorney Fees should be granted.

         I. Background

         Plaintiff Kengarrica Williams (“Williams”) filed a petition for personal injury damages on behalf of herself and her minor child A.L., Jr., in a Louisiana state court (Doc. 1-5). The named defendants are Rue 21, Inc., Cindy Hamby (an employee of Rue 21, Inc. in Bastrop, Louisiana), Shatoria Wilson (an employee of Rue 21, Inc. in Bastrop, Louisiana), Sentry Insurance, A Mutual Company (a general liability insurer of Rue 21, Inc. and its employees), and Burlington Sand Realty, L.L.C. (owner and operator of the premises occupied by Rue 21, Inc. in Bastrop, Louisiana) (Doc. 1-5).

         Williams alleges that, on May 28, 2016, Hamby and/or Wilson placed a metal sign holder on top of a clothing rack that had been placed on a sidewalk for a sale (Doc. 1-5). The metal sign holder was not secured to the rack and it fell, striking A.L. on the head and injuring him (Doc. 1-5). Plaintiffs seek monetary damages, costs, and judicial interest.

         Defendants removed, premising federal jurisdiction on diversity of citizenship (Doc. 1).

         Plaintiffs filed their petition for damages on May 9, 2017 (Doc. 1-5). Defendant Rue 21 filed for Chapter 11 bankruptcy on May 15, 2017 (Doc. 10-1). Defendants then removed this case on June 26, 2017, without any mention of the bankruptcy[1] (Doc. 1). Defendants alleged in their Notice of Removal that Cindy Hamby and Shatoria Wilson were fraudulently joined as defendants. Defendant Rue 21 filed a Suggestion of Bankruptcy on July 10, 2017 (Doc. 10), invoking the automatic stay. Plaintiffs' Motion to Lift the Stay for purposes of deciding the motion to remand (Doc. 26) was granted (Doc. 30).

         II. Law and Analysis

         A. Plaintiff's unopposed Motion to Remand should be granted.

         Plaintiffs' filed a motion to remand (Doc. 22), arguing Wilson and Hamby are not improperly joined. Defendants' contend in their response (Doc. 32) that, due to “recently discovered evidence uncovered during depositions of witnesses, ” they no longer have any opposition and do not oppose Plaintiffs' motion to remand.

         The diversity statute - 28 U.S.C. § 1332 - is satisfied upon a showing of: (1) diversity of citizenship between the parties; and (2) an amount in controversy in excess of $75, 000, exclusive of interest and costs. “Complete diversity requires that all persons on one side of the controversy be citizens of different states than all persons on the other side.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008) (internal citation and quotation omitted). Further, “when jurisdiction depends on citizenship, citizenship must be distinctly and affirmatively alleged.” Getty Oil Corp., a Div. of Texaco, Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988). The Court has “an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). This duty persists throughout all phases of the litigation, even after trial and the entry of final judgment. See id. at 506-07.

         Plaintiff Kengarrica Williams is a citizen of Louisiana (Doc. 1-2). Williams appears both individually and as tutrix of her minor child, A.L. The citizenship of A.L. is not alleged.

         Sentry Insurance A Mutual Company is a “foreign mutual insurance company” organized under the laws of Wisconsin, with its principal place of business in Wisconsin. Since Defendants have not alleged what type of business entity Sentry Insurance is, the ...


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