United States District Court, E.D. Louisiana
“B” (2) Pertains to both cases
ORDER & REASONS
IS ORDERED that Ruby Poole's opposed Motion to
Remand is GRANTED and this case is remanded
to the Civil District Court for the Parish of Orleans. See
Rec. Docs. 10, 15, 29.
11, 2018 Ms. Ruby Poole (Ms. Poole) filed suit in Orleans
Parish Civil District Court for multiple injuries allegedly
caused by Mr. Dennis Poppell (Poppell) while he was operating
a U.S. Xpress Enterprises, Inc. (USX) 18-wheeler in a
negligent manner on June 13, 2017. Ms. Poole asserts claims
against Poppell, USX, its liability insurer, and USAA in its
capacity as Ms. Poole's underinsured motorist carrier.
Shortly after the latter lawsuit was filed, a new lawsuit was
filed in the same state court by Mr. Warren Poole (Mr. Poole)
and Mr. Robert Savage (Savage) for alleged injuries they
sustained as guest passengers in Ms. Poole's car based on
the same June 13, 2017 accident. In addition to asserting
similar claims against Poppell, USX, and its liability
insurer, Mr. Poole and Savage specifically assert negligence
claims directly against Ms. Poole and her insurer, USAA,
claiming all defendants are liable jointly, severally and in
solido for their injuries.
thereafter and prior to serving all defendants, Mr. Poole and
Savage filed a motion to transfer and consolidate their
lawsuit with the one filed by Ms. Poole. That motion asserts
both lawsuits arise out of the same alleged accident, involve
the same common issues of law and fact, and consolidation
would best service the ends of justice. In granting that
motion and invoking interests of justice, efficiency and
economy, the presiding state court judge ordered
consolidation of both cases for all further proceedings and
on July 23, 2018 and pursuant to diversity jurisdiction under
28 U.S.C. §§ 1332, 1441 and 1446, USX removed the
new consolidated action. It is apparent that USX sought
removal of the entire litigation in order to proceed with a
single new or merged proceeding for all purposes, along with
treatment of claims against Ms. Poole as
“cross-claims” or, alternatively, realigning Ms.
Poole as a “plaintiff/defendant-in-cross-claim”.
Poole timely filed the subject motion to remand within thirty
dates from the filing of USX's notice of removal as
required by 28 U.S.C. §1447 (c), followed by USX's
memorandum opposing remand and USAA's adoption of the
U.S.C. § 1332(a)(1) provides that “…
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and cost, and is
between … citizens of different States.”
undisputed that if considering only the
first lawsuit filed in connection with the June 13, 2017
accident, the plaintiff Ms. Poole and all defendants in that
first filed action are completely diverse and the amount in
controversy exceeds $75, 000. Conversely, if we were
considering only the second lawsuit filed by
plaintiffs Mr. Poole and Savage against all defendants in
that action, the parties are not citizens of different
States. As one of the defendants in the second lawsuit, Ms.
Poole is a citizen of the same state as plaintiffs Mr. Poole
and Savage. The state court's consolidation order, for
all purposes, merged the two lawsuits into one for full
disposition on all claims and defenses.
state law definition and parameters of
“consolidation” guide the federal court's
analysis in ruling on the motion to remand. White v.
Fisher-Price, Inc., 96-cv-114, 1996 WL 408051, at pp.
3-4 (N.D. Miss. June 24, 1996) (federal court judge reviewed
Mississippi law to define “consolidation” and to
classify the type of consolidated cases in ruling on a motion
to remand). When two consolidated state court cases are
removed, as here, federal courts look to state substantive
law to determine the precise effect of consolidation in
relation to the remand analysis, namely whether “the
state consolidation destroyed the identity of each suit and
merged them into one, ” thereby requiring the complete
diversity requirements under Section 1332(a)(1) to be
determined based upon the consolidated lawsuit at the time of
removal as opposed to the pre-consolidated separate actions.
See Lerille v. Monsanto Corp., 07-3621,
2007 WL 2284570, at *2 (E.D. La. Aug. 6, 2007); In re
MTBE Products Liability Litigation, 399 F.Supp.2d 340,
353 (S.D.N.Y. 2005); See also Tonyco, Inc. v.
Equity Marketing, Inc., No. 99-74995, 2000 WL 654957, at
*3 (E.D. Mich. Apr. 25, 2000) (finding that had the actions
been consolidated in state court, as opposed to federal
court, making the amount in controversy sufficient for
purposes of diversity jurisdiction, removal would have been
appropriate); Bley v. Travelers Ins. Co., 27 F.Supp.
351, 356 (D. Ala. 1939) (distinguishing a pre-removal state
consolidation order from federal consolidations and finding
that the state consolidation destroyed the identity of each
suit and merged them into one for purposes of assessing the
removability of the new suit).
consolidation of lawsuits “for trial purposes
only” or for some other limited manner would not
typically merge the consolidated claims into a singular suit,
a merger of all claims and all parties occurs when the state
court makes clear its intention to join the parties'
claims into a single proceeding for all purposes. See, e.g.,
Johnson v. Shafor, 22 So.3d 935, 941 (La.App. 1st
Cir. 2009). As seen earlier, the state court order here
declares a consolidation for all further proceedings,
including final disposition.
a consolidation may not in every respect merge separate
actions into a single suit, we see no reason why a proper
consolidation [as here] may not cause otherwise separate
actions to thenceforth be treated as a single judicial unit
…” Ringwald v. Harris, 675 F.2d 768,
771 (5th Cir. 1982); see also Corpus Juris Secundum,
Actions, vol. 1, p. 1341, Sec. 107 (identifying the
differing types of consolidation, i.e., “trial of
several actions together” vs. the merging of two or
more actions into one so that they lose their separate
state court order in this matter did not limit consolidation
for either discovery or trial purposes only or in any other
manner. The two lawsuits became fully merged into a single
action for all further proceedings and final disposition, all
prior to the instant removal.
USX's Notice of Removal notes that the two initial
lawsuits and all related claims have been fully merged into a
single proceeding pursuant to Judge Cates' Consolidation
Order. Rec. Doc. 1 at ¶ 23 and fn 25. USX acknowledges
that a merger of claims does occur when the parties clearly
demonstrate an intention to join their claims into a single
proceeding for all purposes, which is what occurred here.
must be based on the posture and the claims as they existed
at the time of removal. See e.g. Cavallini v.
State Farm Mutual Auto Ins. Co.,44 F.3d 256, 264 (5th
Cir. 1995). We decline defendants' post-removal request
to adjust claims, realign parties, or question the
appropriateness of pre-removal state-ordered consolidation in
this instance as unconvincing. The state court-consolidation
order has Louisiana plaintiffs on one side ...