Batton v. Georgia Gulf

Decision Date06 May 2003
Docket NumberCivil Actions No. 02-381-D-M3.,Civil Actions No. 02-380-D-M3.,Civil Actions No. 02-565-D-M3.,Civil Actions No. 02-976-D-M3.,Civil Actions No. 02-355-D-M3.,Civil Actions No. 02-354-D-M3.,Civil Actions No. 02-943-D-M3.,Civil Actions No. 02-379-D-M3.,Civil Actions No. 02-353-D-M3.
Citation261 F.Supp.2d 575
CourtU.S. District Court — Middle District of Louisiana
PartiesGeorgenner BATTON, et al. v. GEORGIA GULF, et al. Donald Butler, Jr., et al. v. Georgia Gulf, et al. George Gardner, III, et al. v. State of Louisiana through the Department of Health & Hospitals, et al. Joseph Leonard, et al. v. State of Louisiana through the Department of Health & Hospitals, et al. Jerry Oldham, et al. v. State of Louisiana through the Department of Health & Hospitals, et al. Scott Cavalier, et al. v. State of Louisiana through the Department of Health & Hospitals, et al. Elvin Aucoin, et al. v. State of Louisiana through the Department of Health & Hospitals, et al. Sylvester & Kim Lavigne, et al. v. State of Louisiana through the Department of Health & Hospitals, et al. John Capone, et al. v. State of Louisiana through the Department of Health & Hospitals, et al.

Frank Tomeny, III, Bryan D. Fisher, Tomeny & Fisher, Baton Rouge, LA, Stephen Todd Hoover, Hoover Law Firm, Baton Rouge, LA, for Plaintiffs.

Emile C. Rolfs, III, Luis Arturo Leitzelar, Brent Paul Frederick, Breazeale, Sachse & Wilson, Baton Rouge, LA, F. Barry Marionneaux, F. Charles Marionneaux, Marionneaux & Marionneaux, Plaquemine, LA, Wilson E. Fields, Wilson Fields & Associates, L.L.C., Baton Rouge, Stephen Todd Hoover, Hoover Law Firm, Baton Rouge, LA, Richard J. Dodsonm, Dodson & Hooks, Baton Rouge, LA, for Defendants.

RULING & ORDER

BRADY, District Judge.

Pending before the court are motions to remand filed on behalf of the plaintiffs in the first five of the above captioned nine consolidated actions.1 Also pending are two identical motions to reconsider an earlier denial of a motion to remand filed by the plaintiffs in the seventh case captioned above.2 In the remaining three cases, the plaintiffs have no pending motions.3 Defendants Georgia Gulf Corporation and Georgia Gulf Chemical & Vinyl, L.L.C. have also submitted a motion requesting that the court deny the motions to remand for the purpose of certifying one dispositive question to the Fifth Circuit Court of Appeals for interlocutory appeal.4

The underlying cause of action sounds in tort. The various plaintiffs claim damages from arsenic in the water supply. Of particular importance for these motions is the fact that the plaintiffs all have included claims against the Louisiana Department of Health and Hospitals ("LDHH"), which failed to warn anyone of the arsenic levels despite being under an alleged duty to test the water supply and warn citizens of contamination.5 The plaintiffs claim that the presence of LDHH as a defendant destroys diversity jurisdiction. They also claim that there is no federal question and that supplemental jurisdiction is not available. As a consequence, they argue, the court has no subject matter jurisdiction and should remand these cases to state court. Besides the state agency, the remaining defendants named in these actions are the Georgia Gulf Corporation, Georgia Gulf Chemicals & Vinyl, L.L.C., Hercules, Inc., ATOFINA Petrochemicals (formerly American Petrofina), Inc., Hercofina, Ashland, Inc. (formerly Ashland Oil, Co.), International Minerals & Chemicals Corporation, Allemania Chemicals Company, Ashland Chemical Co., and the Parish of Iberville.6

Defendants brought these matters to this court. All the plaintiffs originally filed their complaints in the 18th Judicial District Court in the Parish of Iberville, Louisiana. Georgia Gulf removed all the cases in which it is a named defendant (all except Oldham and Capone) based on diversity of citizenship.7 The defendants in Oldham and Capone—at least the ones who responded at all—sought removal on the same basis. Upon receiving the motions to remand in Batton, Butler, Gardner, Leonard, and Oldham, the court referred them to the Magistrate Judge assigned to the cases. The parties filed briefs in support of their positions. On March 27, 2003, the Magistrate Judge issued her report and recommendation, which advised that the court dismiss these five lawsuits and remand them to state court because:

(1) There is no federal question upon which to base jurisdiction; and

(2) The presence of LDHH destroys diversity jurisdiction; and

(3) The plaintiffs did not fraudulently join LDHH.

The defendants have filed objections to the Magistrate Judge's report.8 They seek to have the court either:

(1) Reject the Magistrate Judge's recommendation and deny the motion to remand, or

(2) In the event that the court intends to follow the recommendation, to deny the motions for the purpose of certifying the question of diversity jurisdiction to the Fifth Circuit for interlocutory review.

The report did not specifically address the Aucoin, Capone, Lavigne or Cavalier cases.

This court has carefully considered the objections, the record, the law applicable to this action, and the report and recommendation of United States Magistrate Judge Docia Dalby dated March 27, 2003.9 The court hereby approves the report and recommendation and adopts its reasons. The court will, however, offer some supplementary reasons for this result as it concerns the effect that LDHH's status as a party defendant has on diversity and supplemental jurisdiction. In addition, the court will take up two other matters below. First, the court will discuss its reason for denying Georgia Gulfs motion to certify the diversity jurisdiction question for interlocutory appeal. Second, the court has determined that, for the same reasons discussed herein and in the report and recommendation, it does not have subject matter jurisdiction over Lavigne, Cavalier, Capone or Aucoin. Aucoin has an active motion to reconsider. The court here grants that motion and remands that case. The other three cases have no active motions regarding remand. Consequently, the court raises the issue of subject matter jurisdiction in those cases sua sponte and rules that those cases must be remanded as well. The court discusses its reasons for taking both these actions below as well.

STANDARD OF REVIEW

This court conducts a ale novo review of the Magistrate Judge's report and recommendation. According to 28 U.S.C. § 636(b), a "judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Consequently, the court reviews all issues to which the defendants have objected as if freshly presented.

ANALYSIS
I. Diversity Jurisdiction

The question the court must consider is whether the presence of the LDHH destroys diversity jurisdiction in this case. Everyone agrees—and it is clearly established in the law—that the LDHH, as a non-independent agency of the state of Louisiana, is not a citizen of any state. So the problem with diversity jurisdiction is not that the plaintiffs are citizens of Louisiana and the LDHH is a citizen of Louisiana. Instead, the problem is that LDHH is not a citizen at all. The question is whether having one defendant with no citizenship destroys diversity jurisdiction. The Magistrate Judge concluded that it does and the court agrees.

The defendants argue that the proper question is whether the LDHH destroys the diversity jurisdiction that would exist if LDHH were not a party. In Cavalier, Lavigne, and Aucoin, the Magistrate Judge assigned to those cases wrote:

It is well settled that a state is not a "citizen" for purposes of diversity jurisdiction under § 1332. Thus, the presence of the State of Louisiana as a named defendant does not destroy diversity of citizenship which otherwise exists between the plaintiffs and the remaining defendants.10

This argument relies on a suppressed premise, which Georgia Gulf supplies in its brief: Diversity jurisdiction requires that no plaintiff and defendant be citizens of the same state. Only by including that premise does the conclusion follow. And though the premise will yield the correct answer in any case in which each party is a citizen of some state, it does not do so when a party has no citizenship.

The Magistrate Judge whose report this court here adopts concludes that 28 U.S.C. § 1332 does not allow federal courts to hear diversity cases against entities that are not citizens of any state. That position is clearly supported in the language of the statute and in case law interpreting the statute. Of primary importance is the statutory language itself. Section 1332(a) provides as follows:

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state;

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

Defendants would turn this affirmative requirement—that a suit must be "between citizens of different States"—into a proscription—that a suit in diversity may not be between citizens of the same state. The language of the statute does not support this reading for several reasons. First, the express language of subsection 1332(a)(1) allows only those suits in which plaintiffs and defendants are citizens of different states. If a party is not a citizen of a state at all, then it is not a citizen of a different state and it would be inappropriate...

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