United States District Court, W.D. Louisiana, Lake Charles Division
TRIMBLE MAGISTRATE, JUDGE.
REPORT AND RECOMMENDATION
KATHLEEN KAY, UNITED STATES MAGISTRATE JUDGE.
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
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.
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. 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.
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.
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.
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.)).
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.
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 ...