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Gibson v. BP America Production Co.

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

January 30, 2018





         Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to remand [doc. # 9] filed by plaintiffs, David and Sharon Gibson. The motion is opposed. For reasons explained below, it is recommended that the motion to remand be GRANTED.


         On September 18, 2017, Plaintiffs filed the instant oilfield contamination suit in the 5thJudicial District Court for the Parish of Richland, State of Louisiana against seven defendants arising out of decades-long oil and gas exploration and production activities conducted on the plaintiffs' properties by the defendants and/or their predecessors in title. See Notice of Removal, doc. # 1, p. 1. The seven entities named as defendants are: BP America Production Company (“BP”), Total Petrochemicals & Refining USA, Inc. (“Total”), Belden & Blake Operating Company (“Belden & Blake”), Richland-Oakland, Capital Gas, Inc. (“Capital Gas”), Winchester of Louisiana, Inc. (“Winchester”), and OGM Research Corporation (“OGM”).

         On November 3, 2017, defendant BP removed the suit to federal court on the sole basis of diversity jurisdiction, 28 U.S.C. § 1332. See Notice of Removal, doc. # 1. On July 7, 2017, plaintiffs filed the instant motion to remand the case to state court on the grounds that (1) the Notice of Removal is procedurally defective; (2) BP cannot prove fraudulent joinder of a non-diverse defendant; and (3) there is no complete diversity, and thus, this Court lacks subject matter jurisdiction.

         On July 31, 2017, defendants, BP and Total, filed their Joint Opposition to Plaintiffs' Motion to Remand [doc. # 11]. BP and Total argued that the Notice of Removal was procedurally sound, Winchester, OGM, Richland-Oakland, and Belden & Blake were not properly served, and that Winchester, Capital Gas, and OGM were improperly joined. Plaintiffs filed a reply in support of remand on January 4, 2018. [doc. # 14]. Removing defendants filed a sur-reply on January 11, 2018. [doc. # 173]. Thus, the matter is ripe.


         A defendant may remove an action from state court to federal court, provided the action is one in which the federal court may exercise original jurisdiction. Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing 28 U.S.C. § 1441(a)). The removing defendant bears the burden of establishing federal subject matter jurisdiction and ensuring compliance with the procedural requirements of removal. Id. Because federal courts are courts of limited jurisdiction, a suit is presumed to lie outside this limited jurisdiction unless and until the party invoking federal jurisdiction establishes to the contrary. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (citation omitted). The removal statutes are strictly construed in favor of remand. Manguno, supra.

         Defendant BP invoked this court's subject matter jurisdiction via diversity, which requires an amount in controversy greater than $75, 000, and complete diversity of citizenship between plaintiffs and defendants, 28 U.S.C. § 1332(a). Plaintiffs do not contest that the amount in controversy exceeded $75, 000 at the time of removal. See Memorandum in Support of Motion to Remand, doc. # 9-1, p. 8. The undersigned agrees that it is facially apparent that the claimed damages exceed $75, 000. See Notice of Removal, doc. #1, pp. 10-11. Thus, the sole jurisdictional issue is whether the parties are completely diverse.

         The diversity jurisdiction statute presupposes a civil action between “citizens of different states, ” where all plaintiffs are diverse from all defendants. 28 U.S.C. § 1332; Farrell Const. Co. v. Jefferson Parish, La., 896 F.2d 136, 139-140 (5th Cir. 1990). When jurisdiction depends on citizenship, “citizenship must be ‘distinctly and affirmatively alleged.'” Getty Oil, supra (citation omitted) (emphasis in citing source); see also, Illinois Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 & n.2 (5th Cir.1983) (the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference). This rule requires “strict adherence.” Getty Oil, supra.

         Here, BP correctly alleged and established that Plaintiffs are individuals domiciled in and citizens of Louisiana. See Notice of Removal, doc. # 1, p. 4. BP also affirmatively (and properly) alleged that BP and Total are Delaware corporations with their principal places of business in Texas, and are citizens both Delaware and Texas. See Id. at pp. 5-6.

         The remaining five defendants are more problematic. The Motion to Remand raises three issues: (A) whether the Court should consider the citizenship of three named defendants who are Louisiana citizens; (B) whether BP obtained the necessary consent of its co-defendants; and (C) whether BP sufficiently alleged the citizenship of its co-defendants.

         I. Improper Joinder.

         BP alleged that Capital Gas, Winchester, and OGM (the “Louisiana Corporations”) were incorporated and domiciled in Louisiana. Accordingly, the inclusion of any one of the Louisiana Corporations as a defendant in this ...

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