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Bares v. Progressive Gulf Insurance Co.

United States District Court, M.D. Louisiana

October 17, 2019

ASHLEY NICHOLE MAJOR BARES, ET AL.
v.
PROGRESSIVE GULF INSURANCE COMPANY, ET AL.

          NOTICE AND ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         On or about September 5, 2019, plaintiffs, Ashley Nichole Major Bares and James Wesley Major (“Plaintiffs”) filed a Petition for Damages for the Wrongful Death and Survival Action of James D. Major, Jr. (the “Petition”) against Progressive Gulf Insurance Company (“Progressive”); Beezy Trucking, LLC (“Beezy”); Roy M. Jones (“Jones”); Cashiola, Inc. and/or Cash's Casino, Inc. d/b/a Cash's Truck Plaza (“Cash's”); and ABC Insurance Company.

         Per the Petition, Plaintiffs allege that Jones, while in the course and scope of his employment with Beezy, unloaded and left four trailer loads of sand on a private driveway known as “Plaza West Drive/Future Street” in West Baton Rouge Parish, Louisiana (the “Roadway”)[1] and that Decedent, while operating a three-wheeler, “slammed into a load of sand left in the roadway…causing [Decedent's] three-wheeler to flip, throwing him off the three-wheeler and causing blunt force trauma to [Decedent's] head” ultimately resulting in Decedent's death.[2]Plaintiffs allege that although the Roadway was “a private driveway located on property owned by” Cash's, the “local motoring public” used the Roadway with the permission and knowledge of Cash's and that Cash's had “given permission to [Jones] and/or otherwise instructed [Jones] to unload the sand onto” the Roadway.[3]

         On October 14, 2019, Beezy and Jones (“Removing Defendants”) filed a Notice of Removal pursuant to 28 U.S.C. § 1332 based on the assertion that the amount in controversy exceeds $75, 000, exclusive of interest and costs, and the properly joined parties are completely diverse. Although the Notice of Removal includes adequate allegations regarding the citizenship of Plaintiffs, Beezy, and Jones, Removing Defendants do not adequately allege the citizenship of Progressive.[4] Further, although Removing Defendants allege that Cash's is non-diverse from Plaintiffs, Removing Defendants contend that Cash's is improperly joined such that Cash's citizenship should be disregarded.[5]

         With respect to Progressive, Removing Defendants allege that Progressive “is a foreign insurer organized under the laws of the State of Ohio.”[6] This is an insufficient allegation of Progressive's citizenship. In the event Progressive is a limited liability company or other type of unincorporated association, Removing Defendants must identify each of the members of the association and the citizenship of each member in accordance with the requirements of § 1332(a) and (c).[7] The same requirement applies to any member of a limited liability company or other type of unincorporated association which is also a limited liability company or unincorporated association.[8] In the event Progressive is a corporation, Progressive's principal place of business and state of incorporation must be alleged.[9]

         With respect to Cash's, Removing Defendants aver that there is no reasonable possibility of recovery against Cash's because “the accident did not occur on any property owned or controlled by Cash's. Cash's does not own any portion of the land which is to the east of the former Wal Mart Store, and does not own any portion of the road which runs north south to the east of the former Wal Mart store where the sand was dumped.”[10] Removing Defendants further assert that “Cash's never instructed any person to unload sand on any property. Neither Cash's or any of its representatives knew sand had been dumped on the roadway located to the east of the former Wal Mart in Port Allen, Louisiana…until representatives of the West Baton Rouge Parish Sheriff's office came to Cash's to investigate the accident….”[11] Removing Defendants conclude that “[b]ecause Cash's did not own, operate, or control the ‘Plaza West Drive/Future Street' where the accident occurred, there is no reasonable basis of recovery against them. As such, Cash's was improperly joined and their citizenship should not be considered.”[12]

         The party seeking removal bears a heavy burden of proving that the joinder of the in-state party was improper.”[13] “‘[A]ny contested issues of fact and any ambiguities of state law must be resolved' in favor of remand, ”[14] and “[a]ny doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.”[15] The Fifth Circuit has “recognized two ways to establish improper joinder: ‘(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.'”[16] As to the second method, the test “is whether the defendant has demonstrated that there is no possibility of recovery by the plaintiff against an in-state defendant, which stated differently means that there is no reasonable basis for the district court to predict that the plaintiff might be able to recover against an in-state defendant.”[17]

         Here, Removing Defendants appear to rely on the second method of establishing improper joinder. A court may resolve this issue in one of two ways. “The court may conduct a Rule 12(b)(6) analysis, looking at the allegations of the complaint to determine whether the complaint states a claim under state law against the in-state defendant. Ordinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder. That said, there are cases, hopefully few in number, in which a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine the propriety of joinder. In such cases, the district court may, in its discretion, pierce the pleadings and conduct a summary inquiry.”[18] The Fifth Circuit has cautioned that such summary inquiry “is appropriate only to identify the presence of discrete and undisputed facts that would preclude plaintiff's recovery against the in-state defendant.”[19]

         “Federal courts are duty bound to determine their own jurisdiction and may do so sua sponte if necessary.”[20] Here, this Court cannot ensure the existence of federal subject matter jurisdiction until Progressive's citizenship is adequately alleged and the issue of Cash's joinder is resolved. Accordingly, IT IS HEREBY ORDERED that on or before October 25, 2019, Beezy Trucking, LLC and Roy M. Jones shall file a Motion to Substitute the Notice of Removal with a Notice of Removal that adequately alleges the citizenship of Progressive.

         IT IS FURTHER ORDERED that on or before November 7, 2019, Plaintiffs shall file either: (1) a Motion to Remand based on lack of subject matter jurisdiction, addressing the alleged improper joinder of Cashiola, Inc. and/or Cash's Casino, Inc. d/b/a Cash's Truck Plaza (“Cash's”); or (2) an Amended Complaint deleting all claims against Cash's.

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

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Notes:

[1] R. Doc. 1-2, p. 2 ¶ 5.


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