Alexander v. Lancaster

• Decision Date: 31 December 1971
• Docket Number: Civ. A. No. 15609.
• Citation: 330 F. Supp. 341
• Parties: J. Earl ALEXANDER v. J. B. LANCASTER et al.
• Court: U.S. District Court — Western District of Louisiana

330 F. Supp. 341

J. Earl ALEXANDER v. J. B. LANCASTER et al.

Civ. A. No. 15609.

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

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.

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 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, Alexander sought to amend his complaint to add Times as a party defendant. (See F.R.Civ.P. 21.) To allow such an amendment, however, would defeat this Court's diversity jurisdiction by creating a lack of complete diversity. In the removal situation we have here, as discussed supra, complainant cannot, through post-removal joinder of Times (which is not an indispensable party), defeat this Court's jurisdiction. Consequently, we will not allow the complaint to be amended to join Times, and dismiss it from this suit. This dismissal, however, is without prejudice to the right of Times, in the event a State Court action is instituted against it, to remove to this Court. At that time, if such suit should be instituted and Times removes, this Court can determine whether independent federal-question jurisdiction exists. We need not make that determination now and imply no judgment upon that issue.

Accordingly, the proposed amendment attempting to add Times as a party defendant is disallowed, and it is dismissed from this suit.

IV. The Associated Press

a) Background

Due to the nature of a motion for summary judgment, full exposition of the undisputed facts developed here is necessary.

Complainant is now, and for many years has been, engaged in road repair and construction work as Earl Alexander Construction Company, a sole proprietorship. A very substantial portion of his business has consisted of road repair and construction for public bodies.

March 11, 1968, the Jackson Parish Police Jury adopted a resolution awarding Earl Alexander Construction Company a "contract" to blacktop approximately two miles of road in Ward 6 of Jackson Parish. When this resolution was adopted, Alexander was a police juror-elect from Ward 2 of Jackson Parish.

Shortly after adoption of the March 11, 1968, resolution, Mr. McBride, a police juror, verbally notified Alexander to blacktop approximately 2 miles of road. One of the roads designated by McBride to be blacktopped was a one-half (½) mile segment of Davis Road. Alexander stated he then began preparatory work for blacktopping that segment of Davis Road.

Despite preparatory work, Davis Road was never blacktopped. When asked to explain his failure to complete the job, complainant first asserted that he was prevented because of rain. Later, he stated he stopped because of his assuming office. He also offered other reasons. There is no question, however, that on May 16, 1968, he submitted a statement for $2,000 covering work allegedly performed by him on the Davis Road project and that the bill was approved and paid by the Police Jury that same day. Without going into minute detail, it is obvious that complainant's explanations of his failure to perform the work are highly inconsistent and anomalous.

Significantly, an application was filed in August, 1968, with the Louisiana Department of Highways to obtain State funds for the Davis Road project. The description of the project matches exactly the job undertaken, but not completed, by Alexander.

It is unnecessary that we attempt to ascertain why the Davis Road project was never completed. As counsel for AP ably demonstrates, the point is simply that,...