United States District Court, W.D. Louisiana, Monroe Division
PERCELL F. GREEN, ET AL.
BP AMERICA PRODUCTION COMPANY, ET AL.
A. DOUGHTY MAG. JUDGE
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE
the undersigned Magistrate Judge, on reference from the
District Court, is a motion to remand [doc. # 9] filed by
plaintiff Percell F. Green, Jr. The motion is opposed. For
reasons explained below, it is recommended that the motion to
remand be DENIED, and that the following claims be dismissed,
without prejudice: 1) plaintiff's claims brought as
relator on behalf of the State of Louisiana and the
Commissioner of Conservation; and 2) plaintiff's
individual capacity claims against Rowe, Inc.; Bethlan
Production Corporation; Caldwell Drilling Company, Inc.; and
February 23, 2018, Percell F. Green, Jr. filed the instant
oilfield contamination suit individually, and as relator 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 seven
defendants arising out of decades-long oil and gas
exploration and production activities conducted on
plaintiff's property by defendants and/or their
predecessors in title. Made defendants were: BP Production
Company (“BP”); Total Petrochemicals &
Refining USA, Inc. (“Total”); ConocoPhillips
Company (“ConocoPhillips”); Rowe, Inc.
(“Rowe”); Bethlan Production Corporation
(“Bethlan”); Caldwell Drilling Company, Inc.
(“Caldwell”); and Claxton Mayo. On May 22, 2018,
plaintiff amended his complaint to dismiss BP as a defendant.
(Pl. 1stSuppl. & Amend. Petition).
7, 2018, defendant, ConocoPhillips, removed the suit to
federal court on the sole basis of diversity jurisdiction, 28
U.S.C. § 1332. (Notice of Removal). Plaintiff is a
Louisiana domiciliary. (Petition, ¶ 1). ConocoPhillips
and Total are both Delaware corporations, with their
principal places of business in Texas. (Notice of Removal,
§§ 2(C)(1) & (2). The three remaining
defendant-entities (Rowe, Bethlan, and Caldwell) are
Louisiana corporations, and the lone individual defendant,
Mayo, is a Louisiana domiciliary. Id., §§
II(C)(3). To overcome the patent lack of diversity between
the plaintiff and the four Louisiana defendants,
ConocoPhillips argued in its notice of removal that plaintiff
has no reasonable possibility of recovery against them, and
therefore, they were improperly joined in an attempt to
defeat federal subject matter and removal jurisdiction.
See Notice of Removal.
disagrees with ConocoPhillips' assessment of his claims
against the Louisiana defendants, and on August 6, 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 properly joined and
served defendants (Bethlan, Rowe, and Mayo); 2) the notice of
removal was procedurally defective because it did not
properly allege citizenship for four of the six defendants
(the Louisiana defendants); and 3) the court lacked subject
matter jurisdiction because the parties were not completely
diverse, and ConocoPhillips concomitantly failed to prove
that the non-diverse defendants were improperly joined.
August 28, 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 should be disregarded for purposes of
diversity and removal jurisdiction. [doc. # 11]. Plaintiff
filed a reply brief in support of remand on September 4,
2018. [doc. # 12]. Removing defendant filed a sur-reply on
September 11, 2018. [doc. # 15]. The matter is ripe.
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.
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).
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.
contends that remand is required because defendants Bethlan,
Rowe, and Mayo were served on June 8, 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 defendants are improperly joined.
of course, ConocoPhillips maintains that the four Louisiana
defendants 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, plaintiff's argument(s) directed towards the
alleged defect in the removal process, in effect, is subsumed
within the court's improper joinder analysis below.
Subject Matter Jurisdiction
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
plaintiff and defendants, 28 U.S.C. § 1332(a). In his
motion to remand, plaintiff 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
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 four Louisiana defendants because
they were not properly served and/or joined as defendants.
However, 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