330 F.Supp. 341 (W.D.La. 1971), Civ. A. 15609, Alexander v. Lancaster

Docket Nº:Civ. A. 15609
Citation:330 F.Supp. 341
Party Name:Alexander v. Lancaster
Court:United States District Courts, 5th Circuit, Western District of Louisiana

Page 341

330 F.Supp. 341 (W.D.La. 1971)

J. Earl ALEXANDER

v.

J. B. LANCASTER et al.

Civ. A. No. 15609.

United States District Court, W.D. Louisiana, Monroe Division.

1971.

Page 342

William H. Baker, Holloway, Baker, Culpepper & Brunson, Jonesboro, La., for plaintiff.

Billy R. Pesnell, Hargrove, Guyton, Van Hook & Ramey, Shreveport, La., Royall, Koegel & Wells, New York City, Robert McLean Jeter, Jr., Tucker, Martin, Holder, Jeter & Jackson, Shreveport, La., for defendants.

Page 343

DAWKINS, Chief Judge.

RULING ON PENDING MOTIONS

I. Background and Issues

J. Earl Alexander, a Louisiana citizen, commenced this action in the Second Judicial District Court, Jackson Parish, Louisiana, against J. B. Lancaster, Legislative Auditor of the State of Louisiana, and The Associated Press (AP), seeking recovery of $1,250,000 as damages for alleged defamation.

Complainant alleges that Lancaster in his capacity as Legislative Auditor prepared and issued a defamatory audit report addressed to the Jackson Parish Police Jury. He further charges that after the audit report had been issued, AP released a defamatory news dispatch which materially departed from the audit report on which it was purportedly based. Complainant demanded judgment against defendants, J. B. Lancaster and AP, jointly, severally, and in solido.

Lancaster is a resident and citizen of Louisiana; The Associated Press, however, is a non-profit corporation organized and existing under the laws of the State of New York with its principal place of business also located there.

AP timely filed a petition to remove complainant's State Court action to this Court.

Subsequent to removal of the action to this Court, complainant filed a Supplemental and Amending Petition attempting to add the Times Publishing Company, Ltd., (Times) as a party defendant, complaining of an additional alleged libelous news report published in The Shreveport Times February 22, 1970, which he attributed entirely to the Times Publishing Company, Ltd. (This news report, however, purports to be an AP release picked up by Times.)

Alexander then filed a Motion to Remand his action to the State Court, contending this Court has no jurisdiction.

Both the AP and Times have moved for summary judgment. The Court, therefore, has before it at this time three questions: 1) Is removal by AP proper or should the matter be remanded; 2) should this Court allow amendment of the complaint to add Times as a defendant; and 3) assuming jurisdiction is found, is summary judgment proper in favor of either or both parties defendant?

II. Removal and Motion to Remand

Removal jurisdiction was invoked by AP upon three grounds: First, that the asserted cause of action against AP was entirely separate and independent of those asserted against Lancaster; second, that since Louisiana's Legislature had not waived the immunity of Lancaster from suit or liability, complete diversity of citizenship existed; and, third, that Alexander's claim raised a federal question involving an essential element of his right to recover damages.

Clearly, the belated attempt at post-removal joinder (filed in connection with the motion to remand) was at least in part an attempt to defeat this Court's jurisdiction by destroying complete diversity, assuming arguendo at this point that Lancaster is not more than a nominal party. (See the Legislative immunity discussion, infra.)

It is clear, however, that the right of removal is determined by the posture of the case at the time the petition for removal was filed. Wright summarizes: "The plaintiff cannot, however, take action to defeat federal jurisdiction and force remand after the case has been properly removed." Wright, Federal Courts (2d ed. 1970), § 38, at p. 134. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); 1 Barron and Holtzoff, Federal Practice and Procedure, § 102. No attempt having been made to join Times as a party defendant until the removal petition had been filed, its presence in this case (if jurisdiction over it is found) is wholly irrelevant to petitioner's motion to remand.

While AP in its brief, in an exhaustive and capable manner, has argued that the

Page 344

actions against AP and Lancaster are separate and independent claims and are removable under 28 U.S.C. § 1441(c), and we generally agree with it, we do not find it necessary to venture into this admittedly nebulous area of the law of federal jurisdiction depending upon characterization of a state cause of action.

We think AP's contention that removal is proper because Lancaster is no more than a formal or nominal party, and that no more than a colorable claim has been asserted against him, disposes of the question of removal jurisdiction without need of further discussion of AP's other arguments.

It is clear that Lancaster, as Legislative Auditor of Louisiana, was and is now immune from both suit and liability for acts performed by him in exercising his official duties. Article 3, Section 35 of the Louisiana Constitution empowers the Legislature to waive its immunity (and its officials acting in their de jure capacity) from suit and from liability, but the Legislature has refused to do so. When the suit was filed, and now, Lancaster's immunity from suit was clear. It would be no more than a legal sham to allow his formal "presence" to defeat removal jurisdiction. It is well settled that presence of mere formal or nominal parties-as here, one against whom no valid cause of action is alleged-is not considered in determining diversity jurisdiction for removal purposes. See Wright, Federal Courts (2d ed. 1970), § 29; Salem Trust Co. v. Manufacturers' Finance Co., 264 U.S. 182, 44 S.Ct. 266, 68 L.Ed. 628 (1924); 1A Moore, Federal Practice (1965), ¶ 0.161 at p. 522; 1 Barron and Holtzoff, Federal Practice and Procedure, § 103. The presence of Lancaster, against whom it is clear that no more than a colorable claim has been asserted, does not defeat diversity removal jurisdiction. See Miami Pipe Line Co. v. Panhandle Eastern Pipe Line Co., 384 F.2d 21 (10th Cir. 1967), for a closely analogous situation. See also, Scott v. Board of Supervisors, L. S. U., 336 F.2d 557 (5th Cir. 1964); Weinstein, Bronfin & Heller v. LeBlanc, 249 La. 936, 192 So.2d 130 (1966); Watts v. Town of Homer, 207 So.2d 844 (La.App.2d Cir. 1968), writs refused 252 La. 109, 209 So.2d 39 (1968), for discussions of the nature of sovereign immunity in Louisiana.

The claim by plaintiff of unconstitutional action by Lancaster, in an attempt to invoke the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), is so patently without merit as to call for no discussion.

Accordingly, the Motion to Remand is Denied.

III. Times Publishing Company, Ltd.

As noted, after AP removed the suit to this Court...

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  • 515 F.Supp. 1004 (S.D.Ala. 1981), Civ. A. 80-0393, Oaks v. City of Fairhope, Alabama
    • United States
    • Federal Cases United States District Courts 11th Circuit Southern District of Alabama
    • May 20, 1981
    ...aff'd 580 F.2d 859 (5th Cir. 1978); Fram v. Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314, 1335 (W.D.Pa.1974); Alexander v. Lancaster, 330 F.Supp. 341, 350 (W.D.La.1971); Davis v. National Broadcasting Co., 320 F.Supp. 1070, 1073 (E.D.La.1970). Oaks has failed to adduce facts that demonstr......
  • 524 F.Supp. 249 (M.D.La. 1981), Civ. A. 81-631, Carpenter v. Illinois Cent. Gulf R. Co.
    • United States
    • Federal Cases United States District Courts 5th Circuit
    • October 9, 1981
    ...against a particular defendant, that defendant is a mere nominal party and cannot defeat removal jurisdiction. Alexander v. Lancaster, 330 F.Supp. 341 (W.D.La.1971). Such is the case here and the liability claim against Trinity does not destroy the requisite diversity in this However, even ......
  • 645 F.Supp. 618 (M.D.La. 1986), Civ. A. 86-333, Simon v. M/V Lady Fortune
    • United States
    • Federal Cases United States District Courts 5th Circuit Middle District of Louisiana
    • September 26, 1986
    ...cannot take action to defeat federal jurisdiction and force remand after the case has been properly removed. Alexander v. Lancaster, 330 F.Supp. 341, 344 (W.D.La.1971). Alternatively, the defendants argue that even if the Court considers the amended complaint, the case should not be remande......
  • 555 P.2d 556 (Wyo. 1976), 4475, Adams v. Frontier Broadcasting Co.
    • United States
    • Wyoming Supreme Court of Wyoming
    • October 21, 1976
    ...aff'd, 464 F.2d 986 (8th Cir. 1972), cert. den. 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (8th Cir. 1973); Alexander v. Lancaster, 330 F.Supp. 341 (W.D.La.1971); Konigsberg v. Time, Inc., 312 F.Supp. 848 (S.D.N.Y.1970); Cerrito v. Time, Inc., 302 F.Supp. 1071 (N.D.Cal.1969); Bon Air Hotel......
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5 cases
  • 515 F.Supp. 1004 (S.D.Ala. 1981), Civ. A. 80-0393, Oaks v. City of Fairhope, Alabama
    • United States
    • Federal Cases United States District Courts 11th Circuit Southern District of Alabama
    • May 20, 1981
    ...aff'd 580 F.2d 859 (5th Cir. 1978); Fram v. Yellow Cab Co. of Pittsburgh, 380 F.Supp. 1314, 1335 (W.D.Pa.1974); Alexander v. Lancaster, 330 F.Supp. 341, 350 (W.D.La.1971); Davis v. National Broadcasting Co., 320 F.Supp. 1070, 1073 (E.D.La.1970). Oaks has failed to adduce facts that demonstr......
  • 524 F.Supp. 249 (M.D.La. 1981), Civ. A. 81-631, Carpenter v. Illinois Cent. Gulf R. Co.
    • United States
    • Federal Cases United States District Courts 5th Circuit
    • October 9, 1981
    ...against a particular defendant, that defendant is a mere nominal party and cannot defeat removal jurisdiction. Alexander v. Lancaster, 330 F.Supp. 341 (W.D.La.1971). Such is the case here and the liability claim against Trinity does not destroy the requisite diversity in this However, even ......
  • 645 F.Supp. 618 (M.D.La. 1986), Civ. A. 86-333, Simon v. M/V Lady Fortune
    • United States
    • Federal Cases United States District Courts 5th Circuit Middle District of Louisiana
    • September 26, 1986
    ...cannot take action to defeat federal jurisdiction and force remand after the case has been properly removed. Alexander v. Lancaster, 330 F.Supp. 341, 344 (W.D.La.1971). Alternatively, the defendants argue that even if the Court considers the amended complaint, the case should not be remande......
  • 555 P.2d 556 (Wyo. 1976), 4475, Adams v. Frontier Broadcasting Co.
    • United States
    • Wyoming Supreme Court of Wyoming
    • October 21, 1976
    ...aff'd, 464 F.2d 986 (8th Cir. 1972), cert. den. 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (8th Cir. 1973); Alexander v. Lancaster, 330 F.Supp. 341 (W.D.La.1971); Konigsberg v. Time, Inc., 312 F.Supp. 848 (S.D.N.Y.1970); Cerrito v. Time, Inc., 302 F.Supp. 1071 (N.D.Cal.1969); Bon Air Hotel......
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