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Wagner v. Cooley

United States District Court, W.D. Louisiana, Lake Charles Division

February 14, 2018

MICHAEL WAGNER D.O.C. # 444022
v.
WARDEN KEITH COOLEY, ET AL.

         SECTION P

          TRIMBLE JUDGE

          REPORT AND RECOMMENDATION

          MAGISTRATE JUDGE KAY

         Before the court are a Motion to Remand and Motion for Attorney's Fees [doc. 6] filed by plaintiff Michael Wagner. The motions were filed in response to the Notice of Removal [doc. 1] filed by defendants GEO Group, Inc. (“GEO”) and Keith Cooley (collectively, “defendants”). Defendants oppose the motions [doc. 10] and Wagner has filed a reply.

         These motions were referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For the reasons stated below, IT IS RECOMMENDED that the Motion to Remand be GRANTED and that the Motion for Attorney's Fees be DENIED.

         I.

         Background

         This action began with a petition for damages filed in the 33rd Judicial District Court, Allen Parish, Louisiana, on October 12, 2017. Doc. 1, att. 1. As defendants Wagner names GEO and Cooley who were, at that time, the operator and warden of Allen Correctional Center (“ACC”), respectively. See Id. There Wagner, an inmate at ACC, alleges that he was injured when trying to climb into his bed. Id. Specifically, he maintains that due to the lack of ladders he “had to climb the bars or jump from a desk on an adjacent wall” and “twist in an awkward manner to get over a piece of metal that is welded to the end of the bed” to reach the upper bunk, and that in doing so one day he fell and struck his back on a metal bar. Id. at 3. He also maintains that Cooley had actual knowledge of the bunks' condition or constructive knowledge that, due to the lack of ladders, inmates had to find “an alternative manner” to reach the top bunks. Id. at 2-3. Wagner asserts that his injury is attributable to the defendants under Louisiana tort law. Id. at 2-5.

         Defendants removed the suit to this court, alleging diversity jurisdiction under 28 U.S.C. § 1332 and making no claim of federal question jurisdiction under 28 U.S.C. § 1331. Doc. 1. They allege that the amount in controversy exceeds $75, 000 and that, for diversity purposes, Wagner is a citizen of Louisiana and GEO is a citizen of Florida. Id. at 3-4. They also admit that Cooley is a citizen of Louisiana but maintain that he is improperly joined to this action to defeat diversity. Id. Wagner has now brought the instant motions, alleging that defendants cannot meet their burden of showing improper joinder or that the amount in controversy exceeds $75, 000. Doc. 6, att. 2. Accordingly, he maintains, he is also entitled to costs and fees associated with the removal under 28 U.S.C. § 1447(c). Doc. 6, p. 3.

         II.

         Law and Analysis

         Any civil action brought in a State court of which the district courts have original jurisdiction may be removed to the proper district court. 28 U.S.C. § 1441(a). District courts have original jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds $75, 000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1). The removing party bears the burden of showing that removal was procedurally proper and that federal jurisdiction exists. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

         A. Motion to Remand

         If removal is based on a claim that a non-diverse party has been improperly joined, then the removing party must establish either “actual fraud in the pleading of jurisdictional facts” or an “inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573 (5th Cir. 2004) (citing Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). Only the latter method is relevant here, because no fraud is alleged. Thus the relevant question is “whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.” Id. The movant is therefore required to put forth evidence defendant to “that would negate a possibility of liability on the part of [the nondiverse defendant].” Davidson v. Georgia-Pacific, LLC, 819 F.3d 758, ...


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