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Cabrero v. Brace Integrated Services, Inc.

United States District Court, M.D. Louisiana

November 28, 2017

DEBORAH CABRERO, ET AL.
v.
BRACE INTEGRATED SERVICES, INC., ET AL.

          NOTICE AND ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         This is a civil action involving claims of employment discrimination brought by Deborah Cabrero, Nicaurys Duran Garcia, Candida Rosa Echevarria, Miolanis Ferreira Reynoso, Alicia Morales, Maria A. Murillo, Reina Isabel Pavon and Andrea Mercedes Weddborn (collectively, “Plaintiffs”) against Brace Integrated Services, Inc. and Aptim Services, Inc. (collectively, “Defendants”).[1] On or about October 27, 2017, Plaintiffs filed a Petition for Damages against the Defendants in the Twenty-Third Judicial District Court for the Parish of Ascension, State of Louisiana, alleging that they were discriminated against based on their sex in violation of Louisiana law.[2] The matter was removed to this Court by Aptim Maintenance, LLC on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a).[3]

         Despite Aptim Maintenance, LLC's assertion that it was incorrectly named as “Aptim Services, Inc.” in Plaintiff's original Petition, 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 In an unpublished opinion, the Fifth Circuit has stated that, “Under 28 U.S.C. § 1441(a), only a defendant may remove a civil action from state court to federal court.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 F. App'x 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 F. App'x 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).

         In the Petition for Damages, Plaintiffs allege the following:

CB&I (Now APTIM SERVICES, INC.) INTENTIONAL INTERFERENCE WITH EMPLOYMENT CONTRACT
23.
CB&I (now APTIM) is the General Contractor on the OxyChem job and hired Brace Integrated Services to perform insulation services.
24.
Brace Integrated Services, Inc. Superintendent Israel Reyes stated to Brace Integrated Services, Inc. Foreman Jose Morales that CB&I, the general contractor on the Oxychem job wanted the women insulators working at Brace Integrated Services Inc. fired.[4]

         Based on the allegations set forth in the Petition, it appears that the Plaintiffs intended to name as a defendant the general contractor at Occidental Chemical Corporation (“OxyChem”) that hired Bruce Integrated Services, Inc. to provide insulation services. Plaintiffs have not contested the assertion that Aptim Maintenance, LLC was incorrectly named in the Petition.

         With respect to subject matter jurisdiction, the Notice of Removal contains the following allegations regarding the citizenship of the parties:

2.
On information and belief, all plaintiffs in the above captioned matter are domiciliaries of ...

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