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Melton v. Toney

United States District Court, M.D. Louisiana

December 5, 2017




         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.



         Before the court is a Motion to Remand[1] filed by plaintiffs, Joecephus Melton and Debra Melton (“Plaintiffs”). Various defendants have filed oppositions, [2] and Plaintiffs have filed a Reply.[3] For the reasons set forth herein, the undersigned RECOMMENDS[4] that the Motion to Remand be GRANTED and that this suit be remanded to 19th Judicial District Court for the State of Louisiana.

         I. Background

         Plaintiffs filed a Petition for Damages (the “Petition”) against: (1) Roosevelt Toney II (“Toney”); (2) Chohan Express, Inc. (“Chohan Express”); (3) Ranvir Singh d/b/a Young's Transport Inc. (“Singh”); (4) United Financial Casualty Company (“United Financial”); (5) United Specialty Insurance Company (“United Specialty”); (6) Francis Hancock (“Hancock”); (7) Jones Transportation, Inc. (“Jones Transportation”); (8) The Insurance Company of the State of Pennsylvania (“ICSP”); (9) American International Group, Inc. (“AIG”); (10) State Farm Mutual Automobile Insurance Company (“State Farm”); and (11) Safeway Insurance Company of Louisiana (“Safeway”).[5] Per the Petition, Plaintiffs allege that on August 31, 2016, they were involved in “a catastrophic vehicle wreck”[6] and sustained “severe injuries including, but not limited to, brain injuries, broken vertebrae, collapsed lung, injuries necessitating ventilators and a colostomy bag, [and] injuries necessitating long-term hospital stays.”[7]

         Plaintiffs allege that on the date of the accident, Toney was driving a semi-truck in the course and scope of his employment with Chohan Express and/or Singh[8] and that Hancock was driving a semi-truck in the course and scope of his employment with Jones Transportation.[9] Plaintiffs allege that

Toney and Hancock were driving their vehicles through a work zone on I-20 in Webster Parish, Louisiana. A line of cars stopped or slowed due to traffic conditions. Toney and Hancock, however, failed to slow down and plowed into the line of cars while driving approximately 70 mph. The driver of the rear vehicle was killed. Toney crashed into Plaintiffs. As their car was pushed off the side of the road, Hancock crashed into them again. Upon information and belief, vehicles driven by Charlie Grice and/or Roshana Crow then crashed into Plaintiffs again.[10]

         In addition to naming Toney, Chohan Express, Singh, Hancock, and Jones Transportation, Plaintiffs also named these parties' alleged liability insurers - United Financial, United Specialty, ICSP, and AIG - as defendants pursuant to the Louisiana Direct Action Statute, LA R.S. § 22:1269.[11] Additionally, although Plaintiffs did not name Charlie Grice (“Grice”) or Roshana Crow (“Crow”) as defendants, Plaintiffs named Grice's alleged liability insurer, State Farm, and Crow's alleged liability insurer, Safeway, and asserted claims against both State Farm and Safeway pursuant to § 22:1269.[12]

         On July 24, 2017, United Specialty and Toney (the “Removing Defendants”) filed a Notice of Removal asserting this court has federal subject matter jurisdiction pursuant to 28 U.S.C. § 1332.[13] The Removing Defendants allege that Plaintiffs are completely diverse from Chohan Express, Singh, United Specialty, Hancock, Jones Transportation, ICSP, and American.[14] With respect to Safeway, the Removing Defendants allege that Safeway “is a Louisiana corporation with its principal place of business in Louisiana.”[15] Additionally, both the Plaintiffs and Removing Defendants acknowledge that because Plaintiffs did not name Grice or Crow as defendants, State Farm and Safeway are considered citizens of Louisiana.[16] See, 28 U.S.C. § 1332(c)(1) (“in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of--(A) every State and foreign state of which the insured is a citizen….”). While the Removing Defendants acknowledge that State Farm and Safeway are not diverse from Plaintiffs, the Removing Defendants contend that the citizenship of State Farm and Safeway should be disregarded because they were improperly joined.[17]

         On August 23, 2017, Plaintiffs filed the instant Motion to Remand.[18] Therein, Plaintiffs contend that this matter should be remanded to state court because (1) State Farm and Safeway are properly joined, non-diverse defendants; and (2) the Removing Defendants failed to obtain the written consent of all defendants prior to removing the case.

         There is no dispute that ICSP and AIG were properly joined and served at the time the Removing Defendants filed their Notice of Removal. Because the undersigned finds that ICSP and AIG failed to timely file a written consent to the Notice of Removal, it is recommended that the Motion to Remand be granted on that procedural ground, and therefore it is not necessary to reach the question of whether the non-diverse defendants, State Farm and Safeway, were improperly joined. See, Allement v. Ameristep Corp., Civil No. 13-498, 2013 WL 12183655, at * 3 (M.D. La. Dec. 30, 2013) (“Because the Court finds that the removal was procedurally defective in that not all parties joined in the removal or filed a timely written consent in such removal as required, and that amending the notice of removal cannot remedy this defect, it is recommended that the Motion to Remand be granted on that ground. The Court does not address the remaining arguments for remand.”).[19]

         II. Law and Analysis

         A. Removal Standard

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). When original jurisdiction is based on diversity of citizenship, the cause of action must be between “citizens of different States” and the amount in controversy must exceed the “sum or value of $75, 000, exclusive of interest and costs.” 28 U.S.C. § 1332(a)-(a)(1). Subject matter jurisdiction must exist at the time of removal to federal court, based on the facts and allegations contained in the complaint. St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (“jurisdictional facts must be judged as of the time the complaint is filed”). In removed actions, diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court. Coury v. Prot, 85 F.3d 244, 248-289 (5th Cir. 1996) (citation omitted).[20] The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand. Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007). The removing party has the burden of proving federal diversity jurisdiction. Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir. 2003). Remand is proper if at any time the court lacks subject matter jurisdiction. See, 28 U.S.C. § 1447(c).

         B. ICSP and AIG Failed to Timely File a ...

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