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State ex rel. Guilbeau v. BEPCO, L.P.

United States District Court, W.D. Louisiana

March 23, 2018

STATE OF LOUISIANA, EX REL. KENNETH JAMES GUILBEAU
v.
BEPCO, L.P., ET AL.

          NOTICE

          RICHARTTL. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations 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 of the Magistrate Judge which have been accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Before the Court is Defendant Hess Corporation's (“Hess”) Motion to Transfer Venue. (R. Doc. 12). The Motion is opposed. (R. Doc. 22). Plaintiff has filed a Reply. (R. Doc. 30).

         I. Background

         The instant litigation concerns alleged contamination on real property in Avoyelles Parish that was subject to two previous lawsuits brought by Kenneth James Guilbeau (“Guilbeau” or “Plaintiff”) that were removed to the U.S. District Court for the Western District of Louisiana and subsequently dismissed.

         Guilbeau (with co-plaintiffs Justin Dale Tureau and Ritchie Grocer Company) filed his first suit in the 12th Judicial District, Avoyelles Parish, Louisiana, which was removed to the Western District of Louisiana on October 31, 2013. See Kenneth James Guilbeau v. 2H, Inc., et al., Civil Action No. 14-2867 (W.D. La.) (“Guilbeau I”). On August 23, 2015, the court dismissed the action by way of summary judgment, concluding Guilbeau did not have a right of action for pre-acquisition damage to his property pursuant to the subsequent purchaser doctrine. See Guilbeau v. 2 H, Inc., No. 14-2867, 2016 WL 4507634, at *2 (W.D. La. Aug. 23, 2016). The Fifth Circuit affirmed the decision on April 18, 2017, and denied rehearing on May 24, 2017. See Guilbeau v. Hess Corp., 854 F.3d 310 (5th Cir. 2017), rehearing denied, No. 16-30971 (5th Cir. May 24, 2017).

         On May 9, 2017, while his petition for rehearing was pending before the Fifth Circuit in Guilbeau I, Guilbeau, purportedly on behalf of the State of Louisiana, filed a second suit in the 12th Judicial District Court, Avoyelles Parish, Louisiana. See State of Louisiana ex rel. Kenneth James Guilbeau v. BEPCO, L.P., et al., Civil Action No. 17-779, (W.D. La.) (“Guilbeau II”), ECF No. 1-2. The action was removed to the Western District of Louisiana on June 16, 2017. Id. ECF No. 1. On June 21, 2017, the court issued a sua sponte order requiring briefing on the issue of diversity jurisdiction under 28 U.S.C. § 1332. Id., ECF No. 6. The same day, in a separate action brought by Justin Dale Tureau, purportedly on behalf of the State of Louisiana, the court issued a finding that it had diversity jurisdiction over the action notwithstanding Tureau's assertion that he was proceeding on behalf of the State of Louisiana. See Louisiana ex rel. Tureau v. BEPCO, L.P., No. 17-780, 2017 WL 2676792 (W.D. La. June 21, 2017). Guilbeau immediately filed a Notice of Dismissal Under Rule 41(a)(1) of the Federal Rules of Civil Procedure. Guilbeau II, ECF No. 7. On June 23, 2017, the district judge dismissed Guilbeau II without prejudice. Id., ECF No. 8.

         On September 15, 2017, Guilbeau, purportedly on behalf of the State of Louisiana, initiated the instant action in the 19th Judicial District Court, East Baton Rouge Parish, Louisiana, naming as defendants BEPCO, L.P., BOPCO, L.P., Chisolm Trail Ventures, L.P., and Hess Corporation (collectively, “Defendants”). (R. Doc. 1-2 at 6-12). Guilbeau brought the action against Defendants pursuant to La. R.S. 30:14 and 30:16 for violations of Statewide Order 29-B, along with other regulations and orders. Guilbeau seeks an injunction ordering remediation of alleged contamination of his property in Avoyelles Paris as a result of oil and gas operations, an order restraining Defendants from further violations, and costs pursuant to La. R.S. 30:29.

         On October 23, 2017, Hess removed the instant action on the basis of diversity jurisdiction. (R. Doc. 1).

         On November 10, 2017, Guilbeau filed a Motion to Remand on the basis that the presence of the State of Louisiana as a real party defeats diversity jurisdiction. (R. Doc. 11). In opposition, Defendants argue that the State of Louisiana is, at most, a nominal party whose presence must be disregarded for the purpose of determining diversity jurisdiction. (R. Doc. 25).

         On November 14, 2017, Hess filed the instant Motion to Transfer Venue. (R. Doc. 12). Hess argues that transfer of this action is warranted because “[t]he Western District is (1) where the Plaintiff resides; (2) where the subject property is located; and (3) where the operations that allegedly caused environmental damage to the subject property occurred.” (R. Doc 12-1 at 1-2). Hess argues that the Court should transfer this action before deciding Plaintiff's Motion to Remand. (R. Doc. 12-1 at 5-7). In addition to arguing that this action could have been brought in the Western District, Hess argues that the various factors to be considered ...


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