United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge
the Court is a Rule 12(b)(6) Motion to Dismiss, filed by
Defendant Ferriday Healthcare, L.L.C.
(“Ferriday”). (Doc. 9). Pro se Plaintiff Sharon
Sewell (“Sewell”) filed an untimely response.
(Doc. 12). The Court issued a sua sponte
Jurisdictional Briefing Order for Ferriday to brief the
citizenship of all its members. (Doc. 13). Ferriday responded
with a “Consent to Remand.” (Doc. 17). Because
this Court lacks diversity jurisdiction, Ferriday's Rule
12(b)(6) Motion to Dismiss (Doc. 9) should be DENIED for lack
of jurisdiction, and the case should be REMANDED to the
Seventh Judicial District Court, Concordia Parish, State of
January 18, 2017, Sewell filed an action in the Seventh
Judicial District Court, Concordia Parish, State of
Louisiana. (Doc. 1-1). Sewell asserts claims for violation of
Louisiana's whistleblower protection law, La. R.S. 23:967
(“whistleblower claim”). (Doc. 1-1). Sewell also
alleges a state tort claim for intentional infliction of
emotional distress. (Doc. 1-1).
originally named as Defendants Consulate Health Care, doing
business as Heritage Manor Health and Rehabilitation Center
Ferriday, in error. (Doc. 1-1). Sewell alleges she was
employed at Ferriday's nursing home in Ferriday,
Louisiana. (Doc. 1-1). Sewell claims she made a
whistle-blower report of an abuse of a patient at the nursing
home. (Doc. 1-1). Sewell alleges she then experienced
retaliation, including sudden write-ups, and was prevented
from attended her normal meetings. (Doc. 1-1). Sewell further
alleges she was accused of stealing candles. (Doc. 1-1).
Sewell claims these actions were pretext for retaliation for
her whistleblower activity. (Doc. 1-1). Sewell alleges the
retaliatory treatment culminated with her termination on
January 15, 2017. (Doc. 1-1).
petition alleges two counts: (1) violation of Louisiana's
whistleblower protection statute, La. R.S. 23:967; and (2)
intentional infliction of emotional distress. (Doc. 1-1).
Sewell alleges she was fired because of her knowledge of
illegal workplace practices and her refusal to participate in
those practices, and her intention to report them. (Doc.
1-1). Sewell claims she suffered injuries and incurred
damages. (Doc. 1-1). She seeks statutory damages under La.
R.S. 23:967, including “compensatory damages, back pay,
benefits, special damages, reinstatement, and reasonable
attorney fees resulting from the reprisal.” (Doc. 1-1).
Sewell further alleges Ferriday's conduct was extreme and
outrageous causing her severe emotional distress. (Doc. 1-1).
Sewell claims Ferriday intended to inflict severe emotional
distress or knew severe emotional distress would result from
their actions. (Doc. 1-1). She also seeks compensatory
damages for severe emotional distress, mental anguish,
embarrassment, humiliation, physical pain and suffering, past
and future medical expenses, loss of enjoyment of life, and
loss of earnings and/or earning capacity. (Doc. 1-1).
removed based upon diversity jurisdiction. (Doc. 1). Ferriday
alleges this action is between citizens of different states
and the controversy exceeds the value of $75, 000.00. (Doc.
1-1). Sewell is a resident and citizen of the state of
Mississippi. (Docs. 1, 1-1). Ferriday is a limited liability
company (“L.L.C.”). (Doc. 1). Ferriday alleges
its sole member is Centennial Healthcare Holding Company,
L.L.C (“Centennial”), which is a citizen of
Delaware. (Doc. 1). Ferriday alleges Centennial's sole
member is LaVie Care Centers, L.L.C (“LaVie”),
also a citizen of Delaware. (Doc. 1). However, no further
members were identified by Ferriday.
also seeks dismissal under Fed.R.Civ.P. Rule 12(b)(6) (Doc.
9). Ferriday alleges Sewell fails to state a plausible claim
for relief under the Louisiana whistleblower protection law,
and that Sewell's claim is untimely. (Doc. 9). Sewell
responded in one sentence that the Concordia Parish Clerk of
Court was closed due to inclement weather on the date of the
statute of limitations. (Doc. 12).
Law and Analysis
The record fails to establish diversity jurisdiction,
axiomatic that federal courts are courts of limited
jurisdiction. Howery v. Allstate Ins. Co., 243 F.3d
912, 916 (5th Cir. 2001). The burden of establishing federal
jurisdiction rests on the party invoking the federal forum.
Id. Here, Ferriday bears that burden.
action filed in state court may be removed to federal court
if the action is one over which the Court has original
jurisdiction. 28 U.S.C. § 1441(a). This action was
removed to federal court based on diversity jurisdiction.
(Doc. 1). Title 28 U.S.C. § 1332(a) provides that the
district courts have original jurisdiction of all civil
actions upon a showing of: (1) diversity of citizenship
between the parties; and (2) an amount in controversy in
excess of $75, 000, exclusive of interest and costs. 28
U.S.C. § 1332. “Complete diversity requires that
all persons on one side of the controversy be citizens of
different states than all persons on the other side.”
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077,
1079 (5th Cir. 2008) (citing Harrison v. Prather,
404 F.2d 267, 272 (5th Cir. 1968)) (internal citation and
jurisdiction depends on citizenship, citizenship must be
distinctly and a firmatively
alleged.” Getty Oil Corp., a Div. of Texaco, Inc.
v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir.
1988) (internal quotation omitted); see also Mullins v.
Testamerica, Inc., 2008 WL 4888576 (5th Cir. 2008) (per
curiam). The citizenship of an individual is his or her
domicile, meaning the place where an individual ...