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Guillory v. Haza Foods of Louisiana, LLC

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

June 13, 2018

JENNIFER GUILLORY
v.
HAZA FOODS OF LOUISIANA, LLC, d/b/a Wendy's #356

          TRIMBLE MAGISTRATE, JUDGE.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.

         Before the court is a Motion to Remand filed by plaintiff Jennifer Guillory. Doc. 7. Plaintiff also moves for an award of costs and attorney's fees associated with the removal. Id. The motion is opposed by defendant Haza Foods of Louisiana, LLC (“Haza Foods”). Doc. 10. For the following reasons, it is RECOMMENDED that the Motion to Remand be GRANTED. It is further RECOMMENDED that plaintiff's Motion for Costs and Attorney's Fees be GRANTED.

         I.

         Background

         Plaintiff, a Louisiana resident, filed suit in the 14th Judicial District, Calcasieu Parish, State of Louisiana on June 15, 2017. Doc. 1, att. 2, pp. 1-3. She alleges she was injured when she slipped and fell on a wet floor at a Wendy's restaurant located in Lake Charles, Louisiana. Id. Her Original Petition for Damages named Haza Foods, a limited liability company whose sole member is a resident of the State of Texas as defendant. Id. at p. 1; Doc. 2. Plaintiff's First Supplemental and Amending Petition, filed in the 14th Judicial District Court on September 6, 2017, named Samantha Bias (“Bias”), an employee of Haza Foods and a Louisiana resident as an additional defendant. Doc. 1, att. 2, pp. 4-6.

         On April 6, 2018, Haza Foods removed the lawsuit to this court alleging jurisdiction based on diversity, 28 U.S.C. § 1332. Doc. 1. Haza Foods maintains, citing 28 U.S.C. § 1441, that complete diversity exists because, although defendant Bias is named as a defendant and is a resident of the State of Louisiana, she was not served at the time of removal.[1] Doc. 1, p.1, n. 2. Haza Foods also maintains that that removal is timely because it was filed within thirty days of receiving “other paper” in the form of discovery responses and medical records which establish that the amount in controversy exceeds $75, 000. Doc. 1, p. 3.

         Plaintiff's motion to remand contends that removal is improper because complete diversity does not exist and, in the alternative, because the removal was untimely. Doc. 7. Plaintiff maintains that since both she and defendant Bias are Louisiana citizens diversity does not exist and the matter must be remanded. Doc. 7, att. 1, p. 2. She also argues that removal was untimely because Haza Foods knew as early September 26, 2017, when it was served with the supplemental and amending petition that plaintiff's injuries exceeded $75, 000. Id. at p. 3. According to plaintiff, the amended petition set forth in greater detail the nature of plaintiff's injuries and included the need for ankle surgery. Id. Plaintiff maintains that this removal, filed over six months after receipt of plaintiff's supplemental and amending petition, is too late. Id. at p. 4.

         In its memorandum in opposition to the motion to remand Haza Foods again relies on 28 U.S.C. § 1441, the removal statute, and argues that diversity jurisdiction exits because Bias was “never served with process and never joined as a defendant.” Doc. 10, p. 3. Haza Foods also asserts that removal is timely because plaintiff's supplemental and amending petition did not make it “unequivocally clear and certain” that the amount in controversy exceeded $75, 000. Id. at p. 7. Rather, it contends that it was not until it received discovery responses on March 7, 2018, that it became clear that the amount in controversy was met and removal on April 6, 2018 was therefore timely. Id. at p. 12.

         II.

         Law and Analysis

         When removal is based on the federal court's diversity jurisdiction, the removing party “must demonstrate that all of the prerequisites of diversity jurisdiction contained in 28 U.S.C. § 1332 are satisfied.” Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir.2004). Diversity jurisdiction exists only when there is complete diversity of citizenship and the amount in controversy exceeds $75, 000, exclusive of interests and costs. See 28 U.S.C. § 1332(a); Felton v. Greyhound Lines, Inc., 324 F.3d 771, 773 (5th Cir.2003). Complete diversity “requires that all persons on one side of the controversy be citizens of different states than all persons on the other side.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir.2008)(citing McLaughlin v. Mississippi Power Co., 376 F.3d 344, 353 (5th Cir.2004)). The prerequisites to diversity jurisdiction “must exist at the time of removal.” Texas Beef Group v. Winfrey, 201 F.3d 680, 686 (5th Cir.2000)(citing 14B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3723 at 574-75 (1998 ed.)).

         In this case, the pleadings demonstrate that at the time of removal plaintiff was a citizen of Louisiana, defendant Haza Foods was a citizen of Texas, and defendant Bias was a citizen of Louisiana. Complete diversity is not present and federal subject matter jurisdiction is lacking.

         Haza Food's argument seems to confuse 28 U.S.C. § 1332, the statute that confers diversity jurisdiction upon federal courts with 28 U.S.C. § 1441, the statute that governs removal of actions to federal court. There is a distinction between what is relevant in determining diversity jurisdiction and in determining whether or not a case is removable. Under Section 1332 the citizenship of all named defendants, whether served with process or not, must be considered when deciding whether complete diversity exists, while under Section 1441(b)(2) if diversity exists ...


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