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Allemang v. State Through the Department of Public Safety

United States District Court, W.D. Louisiana, Lake Charles Division

June 19, 2019

FRANCES G. "BUDDY" ALLEMANG
v.
STATE OF LOUISIANA THROUGH THE DEPARTMENT OF PUBLIC SAFETY (LOUISIANA OFFICE OF STATE POLICE, TROOP D) ET AL.

          SUMMERHAYS JUDGE.

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES DISTRICT JUDGE.

         Before 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 DENIED.

         I.

         Background

         On 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 arrest. Id.

         On 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.

         That 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.

         Defendants 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.

         Plaintiff 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.

         II.

         Law & Analysis

         Any 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).

         Generally, 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 ...


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