United States District Court, W.D. Louisiana, Lake Charles Division
DERRICK G. GOOCH, individually and on behalf of JODY L. GOOCH
PACKAGING CORPORATION OF AMERICA, ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
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
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
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.
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.
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).
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.
Consent to removal.
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).