United States District Court, M.D. Louisiana
K&F RESTAURANT HOLDINGS, LTD. d/b/a IZZO'S ILLEGAL BURRITO, ET AL.
DONALD J. ROUSE, JR., ET AL.
RICHARD L. BOURGEOIS, JR., UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
the Court is Plaintiffs' Motion to Remand (R. Doc. 5)
filed on July 6, 2018. The motion is opposed by the
defendants (“Rouse's”). (R. Doc. 12). Oral
Argument was held on January 22, 2019. (R. Doc.
(“Izzo's”) initiated this action with the
filing of their “Petition for Preliminary Injunction
and for Damages Under the Louisiana Antitrust Statutes, the
Louisiana Unfair Trade Practices and Civil Conspiracy”
(“Petition”) in state court on May 14, 2018. (R.
Doc. 1-2 at 1-31). Izzo's alleges that, after it declined
a proposal from Rouse's to franchise within the grocery
store, Rouse's engaged in a pattern of conduct that
essentially excluded Izzo's from the market in violation
of fair trade practices. (R. Doc. 1-2 at 4). Izzo's
alleges that Rouse's has included clauses in its leases
with developers that would preclude Izzo's from
establishing locations in the same developments, as well as
that Rouse's has used a stolen recipe book from
Izzo's and set up a burrito bar in its stores that is
“similar, if not identical, to Izzo's.” (R.
Doc. 1-2 at 5).
Arguments of the Parties
alleges, in the Notice of Removal, that federal jurisdiction
is proper on the basis of federal question pursuant to 28
U.S.C. § 1331. (R. Doc. 1 at 2). In support of this
position, Rouse's suggests that Plaintiffs have disguised
their allegations as arising under state law when the claims
are actually pursuant to 18 U.S.C. § 1962, et
seq. (R. Doc. 1 at 3). The portion of the
Plaintiffs' petition that Defendants posit establishes a
federal question is a quote from 18 U.S.C. § 1832, which
is incorrectly cited as La. R.S. 51:121. (R. Doc. 1 at 3).
argue, in their Motion to Remand, that they have brought only
state law claims and that Defendants' “own
assumptions” regarding the existence of federal claims
is without merit. (R. Doc. 5-1 at 4-5). Defendants respond
that Plaintiffs “deliberately conceal the federal
question in their petition.” (R. Doc. 12 at 1).
Defendants stress the Plaintiffs' citation of an excerpt
of 18 U.S.C. § 1832 as La. R.S. 51:121, and
Plaintiffs' use of the phrase “racketeering
activity” as indicative of claims brought under federal
law. (R. Doc. 12 at 4-5).
alternatively suggest, in their Notice of Removal, a
reservation of their “rights to conduct discovery
regarding Plaintiffs' citizenship in order to assert
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)
if they discovery grounds sufficient to do so.” (R.
Doc. 1 at 3). Plaintiffs respond that Osvaldo Fernandez and
the Plaintiff companies are all citizens of Louisiana. (R.
Doc. 5-1 at 5).
Law and Analysis
Standards Defendants may remove “any civil
action brought in a State court of which the district courts
of the United States have original jurisdiction.” 28
U.S.C. § 1441. This Court has original subject matter
jurisdiction “of all civil actions arising under the
Constitution, laws, or treaties of the United States.”
28 U.S.C. § 1331. A federal question exists “if
there appears on the face of the complaint some substantial,
disputed question of federal law.” In re ...