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Miles v. Woerner Development, Inc

United States District Court, M.D. Louisiana

March 1, 2018




         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 Plaintiff, Steven Miles (“Plaintiff”). Defendant, Woerner Development, Inc. (“Woerner Development”) has filed an Opposition.[2] For the reasons set forth herein, the undersigned RECOMMENDS[3] that the Motion to Remand be DENIED. If this Report and Recommendation is adopted by the District Judge, the scheduling conference in this matter will be reset.[4]

         I. Background

         Plaintiff filed a Petition for Damages (the “Petition”) in state court on July 14, 2017 against Woerner Development and ABC Insurance Company, Woerner Development's unknown insurer.[5]Per his Petition, Plaintiff alleges that he is the owner of residential property located at 513 Catadonna Street in Donaldsonville, Louisiana, [6] and that Woerner Development “built several weirs and dug out a canal which crosses under La. 308 and joins Bayou Lafourche just south of the La. 943 bridge, to alter the unnamed canal's flow.”[7] Plaintiff alleges that “[t]he dredging work changed the flow of water, so that water in Bayou Lafourche goes upstream into the canal, instead of water flowing downstream into the bayou” and that “[a]s a direct result of the actions of [Woerner Development], on August 11, 2016, plaintiff's property was flooded.”[8] In addition to flooding in August, 2016, Plaintiff alleges that “he has been a victim of a continuing tort because his property was also flooded two other times as a result of drainage changes on February 28, 2016 and May 28, 2014”[9] and that as a result of the flooding, his “property was overtaken with mold.”[10]

         On September 15, 2017, Plaintiff filed a First Amended Petition for Damages in state court, averring that “his damages exceed the jurisdictional limit of $75, 000.00, exclusive of interest and costs.”[11] On October 6, 2017, Woerner Development removed the suit to this court pursuant to 28 U.S.C. § 1332. Per its Notice of Removal, Woerner Development alleged that “it is a foreign company incorporated in the state of Alabama with its principal place of business at 818 N. McKenzie Street, Foley, AL 36536”[12] and that Plaintiff “is a citizen of Louisiana.”[13]

         On October 25, 2017, Plaintiff filed the instant Motion to Remand.[14] Plaintiff asserts that “[w]hile it is clear that the amount in controversy exceeds $75, 000 and the only parties currently in this matter are diverse, ”[15] remand is nevertheless proper because Plaintiff intends to add additional, non-diverse defendants.[16] Plaintiff asserts that these “not yet parties are indispensable to the litigation, and some are non-diverse” from the Plaintiff.[17] Although Plaintiff does not specifically state which of these future potential defendants is non-diverse from him, he lists the following “not yet parties” in his Motion to Remand: Doug Woerner (individually);[18] Woerner Turf, Montgomery, Inc;[19] Woener Realty, Inc.[20] (collectively, the “New Woerner Defendants”); Bayou Lafourche Freshwater District (“Bayou Lafourche”); and Nationwide Agribusiness Insurance Company (“Nationwide”).[21] While Plaintiff fails to adequately allege the citizenship of the New Woerner Defendants and Nationwide, the undersigned assumes that Plaintiff is concerned with the possible future joinder of Bayou Lafourche, which Plaintiff asserts is “a political entity of the State of Louisiana.”[22]

         In opposition to the Motion to Remand, Woerner Development “does not dispute that Plaintiff intends to name non-diverse parties to this lawsuit.”[23] However, Woerner Development points out that “at the time of Woerner's filing of its Notice of Removal, Plaintiff had not yet named these parties as additional defendants” and that “[s]till now, Plaintiff has not yet named these parties as additional defendants.”[24]

         II. Law and Analysis

         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).[25] 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).

         Significantly, the parties agree that the parties presently named in this suit (which are the same parties named at the institution of Plaintiff's suit in state court) are completely diverse from one another. Although Plaintiff states that he intends to name a non-diverse defendant (presumably Bayou Lafourche), Plaintiff has not sought to file an Amended Petition in this court. Instead, Plaintiff asks this court to remand this ...

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