United States District Court, W.D. Louisiana, Lake Charles Division
MICHAEL WAGNER D.O.C. # 444022
WARDEN KEITH COOLEY, ET AL.
REPORT AND RECOMMENDATION
MAGISTRATE JUDGE KAY
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.
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.
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.
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.
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).
Motion to Remand
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].”
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