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Lewis-Wallace v. Johnson

United States District Court, E.D. Louisiana

March 29, 2018

JUDY LEWIS-WALLACE
v.
JEREMY JOHNSON ET AL.

         SECTION I

          ORDER AND REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE.

         Invoking the Court's diversity jurisdiction, defendants Wal-Mart Louisiana, LLC and Wal-Mart Stores Inc. (collectively, “Wal-Mart”) removed[1] this case from the Orleans Parish Civil District Court to this Court on February 8, 2018. Plaintiff Judy Lewis-Wallace (“Wallace”) now moves[2] the Court for a remand. Specifically, Wallace argues that Wal-Mart's removal was improper for two reasons: 1) complete diversity does not exist in the case, and 2) the removal was untimely.

         Because Wallace's arguments fail, this case will remain on the Court's docket.

         I.

         Wallace initiated her case against Wal-Mart in the Orleans Parish Civil District Court on October 27, 2017.[3] In her petition, Wallace alleges that she “suffered physical injuries to her head, her back, and her right shoulder, her neck and her right side” resulting from an alleged third-party criminal act on Wal-Mart's property in November 2016.[4] As compensation for these alleged injuries, Wallace seeks damages for “[p]hysical and mental pain, suffering and disability (past, present and future), ” “[m]edical expenses, ” and “[l]ost wages.”[5]

         Wal-Mart was served with Wallace's petition on November 7, 2017.[6] On November 21, 2017, Wal-Mart filed an answer and propounded discovery on Wallace.[7]Wallace fulfilled Wal-Mart's discovery request on February 6, 2018.[8] Wallace's response included medical bills totaling approximately $52, 000 allegedly stemming from the incident at issue.[9] Wal-Mart removed the case two days later, on February 8, 2018.[10]

         II.

         Wallace asserts that this case should be remanded to the Orleans Parish Civil District Court for lack of complete diversity of citizenship.[11] Wal-Mart disagrees, arguing that the lone defendant with Louisiana citizenship has yet to be served and so he should not be considered when determining whether complete diversity exists.[12]

         Title 28, United States Code, § 1332(a)(1) provides that “[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000 . . . and is between . . . citizens of different States.” Courts have long interpreted § 1332 to demand complete diversity. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005) (“Since Strawbridge v. Curtiss, . . . we have read the statutory formulation ‘between . . . citizens of different States' to require complete diversity between all plaintiffs and all defendants.”). Complete diversity “requires that all persons on one side of the controversy be citizens of different states than all persons on the other side.” McLaughlin v. Miss. Power Co., 376 F.3d 344, 353 (5th Cir. 2004) (quoting Harrison v. Prather, 404 F.2d 267, 272 (5th Cir. 1968)).

         In her petition, Wallace names Jeremy Johnson (“Johnson”) as a defendant.[13]Johnson is a Louisiana citizen[14] as is Wallace.[15] As such, Johnson's presence in the case would typically destroy complete diversity.

         However, 28 U.S.C. § 1441(b)(2) provides that “[a] civil action otherwise removable . . . under section 1332(a) of [Title 28] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” (emphasis added). Looking to the plain language of § 1441(b)(2), Johnson's Louisiana citizenship can only serve as a bar to removal if he has been served. See Leech v. 3M Co., 278 F.Supp.3d 933, 941 (E.D. La. 2017) (Brown, J.) (“[T]he plain language of [28 U.S.C. § 1441(b)(2)] provides that the citizenship of an unserved forum defendant should not be considered in determining whether the forum defendant rule is satisfied.”). “[C]ourts have virtually uniformly held that, where complete diversity exists between the parties, the presence of an unserved resident defendant does not prevent removal.” Colletti v. Bendix, No. 16- 308, 2016 WL 770646, at *2 (E.D. La. Feb. 29, 2016) (Lemelle, J.) (quoting Stewart v. Auguillard Constr. Co., No. 09-6455, 2009 WL 5175217, at *3 (E.D. La. Dec. 18, 2009) (Lemmon, J.)). Since Johnson has never been served, either prior to or following removal, [16] Wal-Mart's removal will not fail for lack of complete diversity.

         III.

         With respect to the timeliness of Wal-Mart's removal, 28 U.S.C. § 1446(b)(1) provides that “[t]he notice of removal of a civil action . . . shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action . . . is based.” Wallace seizes on this language to assert that Wal-Mart's removal was untimely because, despite having been served on November 7, 2017, Wal-Mart did not remove the case until February 8, 2018-well outside § 1446(b)(1)'s 30-day window.[17]

         Yet, there is an exception to the removal period established under § 1446(b)(1):

If the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ...

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