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Jalbert v. Leibold

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

February 13, 2019

CRAIG JALBERT, TRUSTEE, o/b/o GERMAN PELLETS LOUISIANA, L.L.C. AND LOUISIANA PELLETS, INC.
v.
PETER LEIBOLD, et al.

          DRELL, JUDGE.

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes, United States Magistrate Judge.

         Plaintiff Trustee filed a Motion to Remand (Doc. 8), and Defendants filed Motions to Dismiss. (Docs. 31, 33, 34, 35). Because removal was defective, Plaintiff's Motion to Remand (Doc. 8) should be GRANTED, the case should be REMANDED, and Defendants' Motions to Dismiss should be DENIED FOR LACK OF JURISDICTION. (Docs. 31, 33, 34, 35).

         I. Background

         Plaintiff Craig Jalbert, the Chapter 11 liquidating trustee (the “Trustee”) for German Pellets Louisiana, L.L.C. (“GPLA”) and Louisiana Pellets, Inc. (“LP”), filed a petition for damages and injunctive relief in the 28th Louisiana Judicial District Court in LaSalle Parish. (Doc. 1-1). The named defendants are Peter Leibold, Anna Kathrin Leibold, Michael Leibold, Meranda Hyman, GP GmbH (parent company of SPLA and LAP), and VOV GmbH (“VOV”). GPLA and LP defaulted on their obligations to bond holders in 2016 and filed voluntary petitions for Chapter 11 relief in the United States Bankruptcy Court for the Western District of Louisiana. Jalbert was named their Trustee in a confirmed joint chapter 11 plan of liquidation.[1] (Doc. 1-4, p. 23/28)). At the same time, their parent company, GP GmbH filed for bankruptcy protection in Germany (Doc. 1-1).

         The Leibolds and Hyman are four former officers and directors of LP and GPLA (Hyman was the most senior accountant). (Doc. 1-1). VOV is an insurance association based in Cologne, Germany. VOV represents the six underwriters that provided “officer and director coverage” for policyholder GP GmbH and its subsidiaries, LP and GPLA. (Doc. 1-2, pp. 2-3, 30-33/40).

         The Trustee filed a post-confirmation complaint in a Louisiana state court, seeking monetary damages and alleging Defendants breached their fiduciary duties by transferring millions of dollars from LP and GPLA to GP GmbH for no consideration. The Trustee contends Defendants placed the money from the LP and GPLA accounts beyond the reach of creditors and bondholders in the United States. The Trustee also seeks injunctive relief to preclude VOV from paying its policy limits to GP GmbH, to the detriment of LP's and GPLA's creditors.

         Hyman answered the petition and made a reconventional demand against the Trustee, the Leibolds, GP GmbH, and VOV. (Doc. 1-3). Hyman seeks monetary damages, contending she was never an officer, director, or shareholder of GPLA, has no liability as a corporate actor, and was fraudulently joined as a defendant in this action. (Doc. 1-3).

         VOV removed alleging federal jurisdiction pursuant to: (1) 9 U.S.C. § 203 and § 205 because this matter relates to an arbitration agreement falling under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, 21 U.S.T. § 2517, T.I.A.S. § 6997, 330 U.N.T.S. § 3 (9 U.S.C. §§ 201, et seq.); (2) 28 U.S.C. § 1334 because this case is “related to” a case under title 11; and (3) 28 U.S.C. § 1332 because there is diversity in citizenship.

         Defendants Hyman and GP GmbH did not consent to removal. GP GmbH has never appeared.

         Both the Trustee and Hyman admit they never served GP GmbH.[2] (Docs. 27, 28). Since GP GmbH was never served, its consent to removal is not required. See 28 U.S.C. § 1446(b)(2)(A).

         The Trustee filed a Motion to Remand (Docs. 8, 11), which the Leibolds and VOV oppose. (Docs.13, 14). The Trustee filed a reply brief. (Doc. 17).

         The Leibolds and VOV did not answer the complaint.

         Pursuant to an order of this Court. (Doc. 22), Defendants were ordered to show the citizenship of each party with specificity for purposes of diversity jurisdiction, and to respond to the Complaint and Third-Party Demand. Defendants filed a response to the Order to set forth the parties' citizenship (Doc. 30). Defendants ...


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