United States District Court, W.D. Louisiana, Lake Charles Division
FRANCES G. "BUDDY" ALLEMANG
STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY (LOUISIANA OFFICE OF STATE POLICE, TROOP D) ET AL.
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Remand [doc. 5] filed by Francis G.
Allemang (“plaintiff”). Defendants the State of
Louisiana, through the Department of Public Safety &
Corrections (“DPSC”), and Louisiana State Trooper
Freddie Rogers (“Rogers”) (collectively,
“defendants”) oppose the motion. Doc. 9. For the
reasons stated below, IT IS RECOMMENDED that
plaintiff's Motion to Remand [doc. 5] be
August 19, 2016 plaintiff filed suit against defendants
Rogers and DPSC in the 14thJudicial Court for the
Parish of Calcasieu, State of Louisiana. Doc. 1, att. 2, p.
2. In plaintiff's original petition, he alleges that
Rogers's actions during and following a DWI checkpoint
stop violated his “right to due process of law afforded
by Louisiana Constitution Article 1, Section 2, his right to
privacy afforded by Louisiana Constitution Article 1, Section
5, Louisiana Civil Code Article 2315, ” as well as
“other rights provided by Louisiana law and the United
States Constitution.” Id. at 3-4.
Specifically, plaintiff contends that Roger's actions,
for which DPSC is vicariously liable, constituted a false
April 17, 2018, Plaintiff filed a Motion to Compel [doc. 1,
att. 2, p. 68] seeking documentation, recordings, and
interviews concerning internal affairs investigations of
Rogers and other members of the Louisiana State Police. Doc.
1, att. 3, pp. 19-20, 22. The hearing on the motion was held
on July 23, 2018. Id. at 1. There, plaintiff's
counsel stated that this case is “part in parcel of a
system that was ongoing with the Louisiana State Police Troop
D, ” explaining that officers were given incentives to
make DWI arrests early in the day and punished if they failed
to meet a certain quota. Id. at 11. Plaintiff argued
the relevance of the information and its
“crucial” role to the case as an aid in
establishing the pattern, incentives, and punishments that
had allegedly taken place. Id. at 9, 19, 34-35.
same day plaintiff was granted leave to file his First
Supplemental and Amending Petition (hereinafter “first
amended petition”) [doc. 1, att. 2, pp. 87-89], most
notably adding a qualification that the alleged violations
“includ[e] but [are] not limited to the 14th
Amendment and 42 U.S.C. Section 1983.” Id. at
87. In plaintiff's Second Supplemental and Amending
Petition (hereinafter “second amended petition”),
filed on January 31, 2019, the word
“individually” was added next to defendant
Rogers's name. Doc. 1, att. 5, p. 6. In other words, in
this petition plaintiff alleged that Rogers was to be held
liable in his individual, rather than official capacity.
removed the action to this court pursuant to 28 U.S.C. §
1331 on February 1, 2019. Doc. 1. In support of removal,
defendants assert that the second amended petition clearly
identified a claim giving rise to subject matter
jurisdiction, that is, a federal claim against Rogers in his
personal capacity. Id. at 9. Further, defendants
allege that the original and first amended petitions lacked
grounds for removal because they presented state law claims,
hints of federal claims that would not survive a motion to
dismiss, and official-capacity claims over which the federal
court would not have jurisdiction due to Eleventh Amendment
immunity. Doc. 9, att. 1, pp. 5-6.
filed the instant Motion to Remand on February 26, 2019,
arguing that the original and first amended petitions clearly
assert a § 1983 claim against Rogers individually. Doc.
5, p. 2. Thus, because defendants failed to remove within
thirty days of service of either petition, plaintiff contends
removal was untimely. Id. He also claims that
defendants' filing of a supervisory writ regarding
attorney fees in the Third Circuit Court of Appeal
constituted a waiver of removal rights. Doc. 5, att. 1, p. 2.
Lastly, plaintiff maintains that the removal was not effected
under 28 U.S.C. § 1446(d) because defendants failed to
“promptly file a notice of removal” with the
Third Circuit within thirty days of service of the pleading.
Doc. 5, pp. 1-2.
civil action brought in a State court over which the district
courts have original jurisdiction may be removed to the
proper district court. 28 U.S.C. § 1441(a). District
courts have original jurisdiction over “all civil
actions arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. The removing
party 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).
a defendant must file a notice of removal within thirty days
from the time the defendant receives an “initial
pleading setting forth the claim for relief . . . .” 28
U.S.C. § 1446(b)(1). For removal based on federal
question jurisdiction, this thirty-day period starts to run
when the pleading reveals on its face that plaintiff is
asserting a cause of action based on federal law. Leffall
v. Dallas Independent School Dist., 28 F.3d 521');">28 F.3d 521, 525
(5th Cir. 1994). When the initial pleadings do not provide
grounds for removal, defendants may remove the action
“within 30 days after receipt . . . of an amended
pleading, motion, or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3). “[T]he
information supporting removal in a copy of an amended
pleading, motion, order or other ...