United States District Court, W.D. Louisiana, Monroe Division
DAVID GIBSON, ET AL.
BP AMERICA PRODUCTION CO., ET AL.
G. JAMES, JUDGE
REPORT AND RECOMMENDATION
L. HAYES, JUDGE
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.
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
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
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.
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.
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.
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.
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.
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.
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