United States District Court, W.D. Louisiana, Lake Charles Division
SUMMERHAYS MAGISTRATE JUDGE.
REPORT AND RECOMMENDATION
KATHLEEN`KAY UNITED STATES MAGISTRATE JUDGE.
the court is a Motion to Remand filed by plaintiff Elite
Specialty Welding, LLC (“Elite.”) Doc. 6.
Defendant Packaging Corporation of America, Inc.
(“PCA”) opposes remand. Doc. 11. This motion has
been referred to the undersigned for review, report, and
recommendation in accordance with the provisions of 28 U.S.C.
reasons stated below, IT IS RECOMMENDED that
the Motion to Remand be DENIED and that all
claims against defendants Eric Snelgrove, Joseph Flores,
David Martinez be DISMISSED WITHOUT
February 8, 2017, Elite's employees were performing their
duties as part of a welding crew at a paper mill owned by PCA
in DeRidder, Louisiana, when a foul condensate tank exploded
at the facility. Doc. 1, att. 11, p. 4. One year later,
Elite, a citizen of Louisiana, Texas, and Indiana,
filed suit in the 36th Judicial District Court,
Beauregard Parish, Louisiana. Id. at 3-5. It named
as defendants PCA, a citizen of Delaware and Illinois,
three of its mill managers - Eric Snelgrove, Joseph Flores,
and David Martinez (hereafter collectively referred to as
“the mill managers”) - all of whom were citizens
of Louisiana. Doc. 1, att. 11, p. 3.
September 26, 2018, PCA removed the action to this court
pursuant to 28 U.S.C. § 1332. Doc. 1. It asserts
complete diversity exists and alleges that the citizenship of
the mill managers should be ignored because Elite has failed
to state a valid cause of action against them. Doc. 1, pp.
4-7. In its Notice of Removal PCA notes that it was served
with the original petition on June 4, 2018. Doc. 1, p. 1. It
further notes, however, that the citizenship of plaintiff LLC
was not made clear by the original complaint and that
thereafter counsel for plaintiff “provided ambiguous
information” as to whether one of its members
“was a corporation or a limited liability
company.” Id. at 2. PCA states in its notice
that the citizenship of plaintiff was ultimately clarified by
correspondence dated September 17, 2018. Id.
filed the instant motion for remand on October 26, 2018. It
asserts that it has stated a valid cause of action against
the mill managers. Doc. 6, att. 1, pp. 4-7. Alternatively,
Elite asserts PCA's removal was untimely because
diversity was apparent on July 10, 2018. Id. at 8.
PCA opposes remand. Doc. 11. It maintains that the mill
managers are improperly joined [id. at 17], and that
the removal was timely because it was filed within thirty
days of PCA's receipt of an “other paper from which
it may first be ascertained that the case is one which is or
has become removable” pursuant to 28 U.S.C. §
1446(b)(3). See Id. at 24-27.
Law & Analysis
courts are courts of limited jurisdiction,' possessing
‘only that power authorized by Constitution and
statute.'” Gunn v. Minton, 133 S.Ct. 1059,
1064 (2013) (citing Kokkonen v. Guardian Life Ins. Co. of
America, 114 S.Ct. 1673, 1675 (1994)). Generally,
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction, may be removed by the defendant.” 28
U.S.C. § 1441(a). The removing defendant bears the
burden of showing that removal was procedurally proper and
that federal jurisdiction exists. See De Aguilar v.
Boeing Co., 47 F.3d 1404, 1408 (5th Cir.1995).
courts have original jurisdiction over all civil actions
between citizens of different states where the amount in
controversy exceeds $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332(a)(1). This diversity provision
requires complete diversity among the parties.
Caterpillar Inc. v. Lewis, 117 S.Ct. 467, 472
(1996). This means that there must be complete diversity
between all named parties. Jernigan v. Ashland Oil
Inc., 989 F.2d 812, 814 (5th Cir.1993).
Improper Joinder of the Mill Managers
argues diversity jurisdiction exists because the mill
managers were improperly joined in the suit. Doc. 1
improper joinder doctrine constitutes a narrow exception to
the rule of complete diversity.” McDonal v. Abbot
Labs., 408 F.3d 177, 183 (5th Cir.2003). If removal is
based on a claim that a non-diverse party has been improperly
joined, then the removing party must establish either
“actual fraud in the pleading of jurisdictional
facts” or the “inability of the plaintiff to
establish a cause of action against the non-diverse party in
state court.” Smallwood v. Ill. Cent. R.R.
Co., 385 F.3d 568, 573 (5th Cir.2004) (citing Travis
v. Irby, 326 F.3d 644, 648 (5th Cir.2003)). Only the
latter method is relevant here, as no fraud is alleged. Thus,
the relevant question is “whether the defendant has
demonstrated that there is no possibility of recovery by the