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Ziegler v. Weatherspoon

United States District Court, M.D. Louisiana

April 30, 2019

PHILIP M. ZIEGLER
v.
LIONEL WEATHERSPOON, ET AL.

          NOTICE AND ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         On October 12, 2018, plaintiff, Philip Ziegler (“Plaintiff”) filed a Petition for Damages against Lionel Weatherspoon (“Weatherspoon”), Progressive Security Insurance Company (“Progressive”), The Hanover American Insurance Company (“Hanover”), and James River Insurance Company (“James River”) for damages allegedly sustained in an October 13, 2017 automobile accident.[1] On April 22, 2019, James River filed a Notice of Removal pursuant to 28 U.S.C. § 1332.[2]

         With respect to the citizenship of the parties, James River alleges that Plaintiff is a Louisiana citizen and that James River is an Ohio corporation with its principal place of business in Virginia.[3] James River does not allege the citizenship of Hanover. Instead, James River contends that “[i]n its Answer, Allmerica Financial Benefit Insurance Company [“Allmerica”] indicated it was incorrectly identified in the Petition for Damages”[4] as Hanover. James River alleges that Allmerica is incorporated in Michigan with its principal place of business in Massachusetts.[5] Because Hanover was a named defendant in this action at the time of removal, Hanover's citizenship must be adequately alleged for this Court to determine whether subject matter jurisdiction exists pursuant to 28 U.S.C. § 1332.[6]

         James River also does not allege the citizenship of Weatherspoon or Progressive, although Plaintiff alleges in his Petition that Weatherspoon is a domiciliary of Louisiana.[7] Instead, James River asserts that “Plaintiff has reached a settlement agreement with Lionel Weatherspoon and Progressive Security Insurance Company”[8] and that the citizenship of Weatherspoon and Progressive may be disregarded because “[p]rior to the filing of this Notice of Removal, plaintiff filed a voluntary motion to dismiss Lionel Weatherspoon and Progressive Security Insurance Company.”[9] A review of the documentation attached to the Notice of Removal includes a Motion for Partial Dismissal filed by Plaintiff in state court seeking to dismiss Weatherspoon and Progressive with prejudice.[10] It does not appear that the Motion to Dismiss was granted by the state court judge. “In determining diversity jurisdiction, ‘a federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship of real parties to the controversy.'”[11] In the Fifth Circuit, “‘a case may be removed based on any voluntary act of the plaintiff that effectively eliminates the nondiverse defendant from the case.'”[12] Where a plaintiff has “effectively eliminated” the nondiverse defendant(s) via a settlement, the case becomes removable.[13] Here, James River contends that Weatherspoon and Progressive are nominal defendants whose citizenship may be disregarded for purposes of determining diversity jurisdiction.

         “Federal courts are duty bound to determine their own jurisdiction, and may do so sua sponte if necessary.”[14] In order to determine this Court's jurisdiction based on 28 U.S.C. § 1332, the citizenship of all parties (including Hanover, Weatherspoon, and Progressive) should be set forth in the Notice of Removal.[15] Accordingly, IT IS HEREBY ORDERED that on or before May 10, 2019, James River Insurance Company shall file a motion to substitute the Notice of Removal with a comprehensive Amended Notice of Removal that adequately alleges the citizenship of all named parties in this action, including Lionel Weatherspoon, Progressive Security Insurance Company, and The Hanover American Insurance Company.

         IT IS FURTHER ORDERED that on or before May 24, 2019, Plaintiff shall file either: (1) a Notice stating that Plaintiff does not dispute that James River has established the jurisdictional requirements of 28 U.S.C. § 1332; or (2) a Motion to Remand.

         The case will be allowed to proceed if jurisdiction is adequately established.

---------

Notes:

[1] R. Doc. 1-1.

[2] R. Doc. 1. With respect to the amount in controversy, James River asserts that in a March 22, 2019 demand, Plaintiff indicated that he had incurred $49, 433.00 in medicals and was continuing to treat. R. Doc. 1, ¶ 13. James River asserts that a future bilateral medial branch block is estimated to cost $11, 992.00, bringing Plaintiff's incurred medical expenses to $61, 425.00. Although the records attached to the Notice of Removal indicate that Plaintiff settled with Progressive for $15, 000, R. Doc. 1-6, it appears based on the outstanding medical expenses, the amount in controversy likely meets the jurisdictional threshold.

[3] R. Doc. 1, ¶¶ 7-8.

[4] R. Doc. 1, ¶ 5.

[5] R. Doc. 1, ¶ 9.


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