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Lowry v. Total Petrochemicals & Refining USA, Inc.

United States District Court, W.D. Louisiana, Monroe Division

October 26, 2018

JAMES E. LOWRY, ET AL.
v.
TOTAL PETROCHEMICALS & REFINING USA, INC., ET AL.

          TERRY A. DOUGHTY JUDGE

          REPORT AND RECOMMENDATION

          KAREN L. HAYES UNITED STATES MAGISTRATE JUDGE

         Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to remand [doc. # 9] filed by plaintiffs James E. Lowry, et al. The motion is opposed. For reasons explained below, it is recommended that the motion to remand be DENIED, and that plaintiffs' claims brought as relators on behalf of the State of Louisiana and the Commissioner of Conservation be dismissed, without prejudice, and that plaintiffs' individual capacity claims against Bethlan Production Corporation; Capital Gas, Inc.; J.B.X. Royalties, Inc.; NEPCO, Inc.; Big Creek Operating, Inc.; and Cisco Petroleum, Inc. be dismissed, without prejudice.

         Background

         On February 9, 2018, James E. Lowry, Charles M. Johnson, Jimmy R. Smith, Donald W. Smith, and Leslie H. Smith (collectively, “Lowry” or “plaintiffs”), filed the instant oilfield contamination suit individually, and as relators on behalf of the State of Louisiana and the Commissioner of Conservation, in the 5th Judicial District Court for the Parish of Richland, State of Louisiana against eight defendants arising out of decades-long oil and gas exploration and production activities conducted on the plaintiffs' properties by the defendants and/or their predecessors in title. Made defendants were: Total Petrochemicals & Refining USA, Inc. (“Total”); ConocoPhillips Company (“ConocoPhillips”); Bethlan Production Corporation (“Bethlan”); Capital Gas, Inc. (“Capital Gas”); J.B.X. Royalties, Inc. (“J.B.X.”); NEPCO, Inc. (“NEPCO”); Big Creek Operating, Inc. (“Big Creek”); and Cisco Petroleum, Inc. (“Cisco”).

         On June 29, 2018, defendant, ConocoPhillips, removed the suit to federal court on the sole basis of diversity jurisdiction, 28 U.S.C. § 1332. (Notice of Removal).[1] Plaintiffs, James Lowry and Charles Johnson, are domiciled in Louisiana, whereas, plaintiffs, Jimmy Smith, Donald Smith, and Leslie Smith, are Mississippi domiciliaries. Id., § II(B)(1).[2] ConocoPhillips and Total are both Delaware corporations, with their principal places of business in Texas. Id., §§ 2(C)(1) & (2). The remaining six defendant-corporations (Bethlan, Capital Gas, J.B.X., NEPCO, Big Creek, and Cisco) all were incorporated in Louisiana. Id., §§ II(C)(3). To overcome the patent lack of diversity between the six Louisiana corporations and the two Louisiana plaintiffs, ConocoPhillips argued in its notice of removal that plaintiffs have no reasonable possibility of recovery against the non-diverse, forum-domiciled defendants, and therefore, they were improperly joined in an attempt to defeat federal subject matter and removal jurisdiction. See Notice of Removal.

         Plaintiffs disagree with ConocoPhillips' assessment of their claims against the Louisiana corporations, and on July 27, 2018, filed the instant motion to remand the case to state court on the following grounds: 1) removal was procedurally defective because it did not include the consent of a properly joined and served defendant (Bethlan); 2) the notice of removal was procedurally defective because it did not properly allege citizenship for six of the eight defendants (the Louisiana corporations); and 3) the court lacked subject matter jurisdiction because the parties were not completely diverse.

         On August 20, 2018, ConocoPhillips filed its opposition to the motion to remand in which it maintained that the non-diverse, in-state defendants were improperly joined, and therefore, their presence must be disregarded for purposes of diversity and removal jurisdiction. [doc. # 11]. Plaintiffs filed a reply brief in support of remand on August 28, 2018. [doc. # 14]. Removing defendant filed a sur-reply on September 6, 2018. [doc. # 17]. The matter is ripe.

         Discussion

         A defendant may remove an action from state court to federal court, provided the action is one in which the federal court may exercise original jurisdiction. Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing 28 U.S.C. § 1441(a)). The removing defendant bears the burden of establishing federal subject matter jurisdiction and ensuring compliance with the procedural requirements of removal. Id. Because federal courts are courts of limited jurisdiction, a suit is presumed to lie outside this limited jurisdiction unless and until the party invoking federal jurisdiction establishes to the contrary. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (citation omitted). The removal statutes are strictly construed in favor of remand. Manguno, supra.

         I. Unanimity

         It has long been the rule in the Fifth Circuit, that all properly joined and served defendants must join in the notice of removal or otherwise consent to removal within the 30 day period set forth in 28 U.S.C. § 1446(b). Jones v. Scogin, 929 F.Supp. 987, 988 (W.D. La. 1996) (citing Getty Oil, Div. Of Texaco v. Ins. Co. of North America, 841 F.2d 1254, 1263 (5th Cir. 1988)). Failure to do so, renders the removal defective. Getty Oil, 841 F.2d at 1263. While each defendant need not sign the notice of removal, there must be “some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have the authority to do so, that it has actually consented to such action.” Gillis v. Louisiana, 294 F.3d 755, 759 (5th Cir. 2002) (quoting, Getty, supra).

         The Federal Courts Jurisdiction and Venue Clarification Act of 2011 (“JVCA”), codified the foregoing principles, as follows, “[w]hen a civil action is removed solely 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. § 1446(b)(2)(A). Here, ConocoPhillips plainly effected removal solely under § 1441(a). (Notice of Removal, § I(A)). Therefore, all properly served and joined defendants were required to timely consent to removal herein.

         Plaintiffs contend that remand is required because defendant, Bethlan, was served on May 15, 2018, but failed to join in or timely consent to removal. However, a removing party need not obtain the consent of a co-defendant that the removing party contends is improperly joined. Rico v. Flores, 481 F.3d 234, 239 (5th Cir.2007) (citing Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.1993)). Moreover, the removing defendant need not even explain the absence of consent in its notice of removal when it contends that the other defendant(s) is improperly joined. Jernigan, supra.

         Here, of course, ConocoPhillips maintains that the six Louisiana corporate defendants (Bethlan included) were improperly joined such that their presence may be disregarded - not only for purposes of diversity jurisdiction, but also for purposes of complying with the procedural requirements of removal, including unanimity. Therefore, plaintiffs' argument(s) directed towards the alleged defect in the removal process, in effect, is subsumed within the court's improper joinder analysis below.

         II. Subject Matter Jurisdiction

         ConocoPhillips invoked this court's subject matter jurisdiction via diversity, which requires an amount in controversy greater than $75, 000, and complete diversity of citizenship between plaintiffs and defendants, 28 U.S.C. § 1332(a). In their motion to remand, plaintiffs stipulated that the amount in controversy exceeded $75, 000. More importantly, however, the court finds that it is facially apparent that the claimed damages exceeded $75, 000 at the time of removal. See Notice of Removal, § II(A). Therefore, the sole jurisdictional issue is whether the parties are completely diverse.

         The diversity jurisdiction statute presupposes a civil action between “citizens of different states, ” where all plaintiffs are diverse from all defendants. 28 U.S.C. § 1332; Farrell Const. Co. v. Jefferson Parish, La., 896 F.2d 136, 139-140 (5th Cir. 1990). Removing defendant contends that the court need not consider the citizenship for the six Louisiana defendants, Bethlan, Capital Gas, J.B.X., NEPCO, Big Creek, and Cisco, because they were not properly served and/or joined as defendants. The court emphasizes, however, that the fact that a defendant was not served does not mean that its citizenship may be ignored. New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th Cir.1998). Rather, “[w]henever federal jurisdiction in a removal case depends upon complete diversity, the existence of diversity is determined from the fact of citizenship of the parties named and not from the fact of service.” Id. (citations omitted). Thus, the sole inquiry, at least for purposes of subject matter jurisdiction, is whether the non-diverse defendants were properly joined.

         To disregard the citizenship of the six non-diverse defendants, ConocoPhillips must establish that they were but nominal defendants/improperly joined. “The improper joinder doctrine constitutes a narrow exception to the rule of complete diversity.” McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir.2005). Moreover, the burden of persuasion on a party claiming improper joinder is a “heavy one.” Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir.2007) (citation omitted). The focus of the improper joinder inquiry must be ...


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