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Gooch v. Packaging Corporation of America

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

August 30, 2018

DERRICK G. GOOCH, individually and on behalf of JODY L. GOOCH
v.
PACKAGING CORPORATION OF AMERICA, ET AL.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.

         Before the court is a Motion to Remand filed by plaintiff Derrick G. Gooch, individually and on behalf of Jody L. Gooch. Doc. 11. Defendant, Packaging Corporation of America (“PCA”), opposes remand. Doc. 13. This motion has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636. For the reasons stated below, IT IS RECOMMENDED that the motion be DENIED and that all claims against Lester, LeBleu, and JMW be DISMISSED WITHOUT PREJUDICE.

         I.

         Background

         This cases arises from an explosion that occurred on February 8, 2017, during an annual maintenance outage at the paper mill owned by PCA in DeRidder, Louisiana, and resulted in the death of plaintiff's father, Jody L. Gooch. Doc. 1, att. 8, p. 3. According to the complaint, the decedent was a welder who had been contracted by PCA to conduct repairs, including “hot work, ” at the mill. Id. at 3-4. On February 2, 2018, plaintiff, a Texas resident, filed suit in the 36th Judicial District Court, Beauregard Parish, Louisiana. Id. at 3. He seeks to recover individually and on behalf of his father against PCA, “a Delaware corporation with its principal place of business in Illinois;” Floyd J. LeBleu and Raymond Lester, both of whom are residents of Louisiana; and James Machine Works, LLC (“JMW”), “a Louisiana limited liability company with its principal place of business located in the Parish of Ouachita, State of Louisiana.” Id.

         On March 5, 2018, PCA removed the action to this court on grounds it has jurisdiction pursuant to 28 U.S.C. § 1332 because plaintiff seeks damages totaling more than $75, 000 and there is complete diversity between the parties. Doc. 1. PCA maintains that LeBleu, Lester, and JMW are improperly joined because plaintiff fails to state a valid cause of action against them. Id.

         Plaintiff filed a Motion to Remand on April 4, 2018. Doc. 11. He argues that his petition set forth a valid cause of action against LeBleu and Lester through the requirements set forth under Louisiana jurisprudence for employee liability. Doc. 11, att. 1, pp. 4-7 (citing Canter v. Koehring Co., 283 So.2d 716, 722 (La. 1973)). He also asserts that JMW was properly joined because it manufactured the tank that exploded. Id. at pp. 8-9. Accordingly, he states, defendants have violated the forum defendant rule, 28 U.S.C. § 1441(b)(2), by removing this suit even though LeBleu, Lester, and JMW are citizens of the forum state. Id. at p. 3. He also asserts another procedural defect in removal through JMW's lack of consent thereto. Id. at 8. PCA opposes remand. Doc. 13.

         II.

         Law & Analysis

          Federal courts are courts of limited jurisdiction, possessing “only that power authorized by Constitution and by statute.” Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013) (quotation omitted). Generally, a defendant may remove a civil action to federal court if the federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a). District courts have original jurisdiction over all civil actions between citizens of different states where the amount in controversy exceeds $75, 000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1). The diversity provisions of 28 U.S.C. § 1332(a)(1) require complete diversity among the parties. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996).

         Here the parties do not contest that the amount in controversy is met or that there is complete diversity among them. Instead, plaintiff alleges two procedural defects to removal: failure to obtain the consent of a codefendant and violation of the forum defendant rule.

         A. Consent to removal.

         Plaintiff first argues that the notice of removal was defective because PCA failed to obtain JMW's consent. Doc. 11, att. 1, p. 8. “When a civil action is removed under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. § 1442(b)(2)(A). It is unclear when JMW was served in this matter. However, removal is premised on the notion that JMW was not properly joined. Doc. 1, p. 9. As PCA notes, it is well settled that an improperly joined party is not required to consent to removal. Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993).

         B. ...


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