Byrd v. Norman
| Decision Date | 10 April 2017 |
| Docket Number | CIVIL ACTION NO. 16-563-JWD-EWD |
| Parties | KEDRICK BYRD v. GARY F. NORMAN, ET AL. |
| Court | U.S. District Court — Middle District of Louisiana |
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Signed in Baton Rouge, Louisiana, on April 10, 2017.
/s/_________
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
Before the court is a Motion to Remand and for Costs and Expenses (the "Motion to Remand")1 filed by plaintiff, Kedrick Byrd ("Plaintiff"). Gary F. Norman ("Norman") and P&S Transportation, LLC ("P&S, LLC") (collectively, the "Removing Parties") have filed an opposition.2 For the reasons set forth herein, it is the recommendation3 of the undersigned that Plaintiff's Motion to Remand be DENIED. Because the undersigned recommends that the Motion to Remand be denied, the undersigned further recommends that Plaintiff's request for fees and costs pursuant to 28 U.S.C. § 1447(c) also be DENIED.
In the event this report is adopted and Plaintiff's Motion to Remand is denied, the undersigned further recommends that: (1) this matter be referred to the undersigned for a scheduling conference;4 and (2) P&S, LLC and P&S Transportation, Inc. ("P&S, Inc.") be ordered to jointly file, within seven (7) days of the order adopting this recommendation, a Motion to Substitute P&S, LLC as a party defendant, specifically stating whether Plaintiff objects to the proposed substitution.
This suit arises out of a vehicular accident occurring on or about August 7, 2015.5 Plaintiff alleges that he was driving a car owned by Stacey A. Henry ("Henry") when he was rear-ended by a "2016 Peterbuilt T/T" operated by Norman and owned by P&S Inc.6 Plaintiff filed suit against P&S, Inc., Norman, and Allstate Insurance Company ("Allstate") on July 13, 2016.7
On August 24, 2016 P&S, LLC and Norman filed a Petition for Removal.8 Although not named in the original state court Petition, P&S, LLC has admitted that it was Norman's employer at the time of the accident.9 On August 25, 2016, P&S, Inc. filed a Concurrence in Removal asserting that P&S, Inc. "has erroneously been designated as a defendant in this proceeding even though Gary F. Norman was not employed by P&S Transportation, Inc. and was not under its dispatch at the time of the subject accident."10 Despite this assertion, Plaintiff has not amended his Petition to assert claims against P&S, LLC, and P&S, LLC has not intervened or moved to be substituted as a defendant.11
On September 23, 2016, Plaintiff filed the instant Motion to Remand.12 Therein, Plaintiff asserts that this court "has grounds for discretionary abstention" pursuant to Colorado River Water Conservation District v. United States, 424 US 800 (1976) because "there is another case pending in state district court which has the same exact facts and defendants,"13 specifically, Stacey Henry v. Gary F. Norman, 18th Judicial District Court, No. 43027-A, West Baton Rouge Parish, Louisiana (the "Henry Suit"). Plaintiff asserts that this matter and the Henry Suit "are identical with the exception of the Plaintiff being the husband in one suit, versus the wife in another."14 Plaintiff additionally argues that remand is appropriate because "Defendants have not proven complete diversity"15 based on allegedly defective allegations of citizenship set forth in the Notice of Removal.16
Pursuant to 28 U.S.C. § 1332(a), this court has 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." "It is axiomatic that the federal courts have limited subject matter jurisdiction and cannot entertain cases unless authorized by the Constitution and legislation." Coury v. Prot, 85 F.3d 244, 248 (5th Cir. 1996). The removing party bears theburden of showing that federal jurisdiction exists and that removal was proper. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). "Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand." Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
Although not raised by Plaintiff in the Motion to Remand, the undersigned notes that the Notice of Removal was filed by P&S, LLC; however, Plaintiff named P&S, Inc. as a defendant in his original Petition for Damages. Despite P&S, LLC's assertion that it was "erroneously designated as 'P&S Transportation, Inc.'" in Plaintiff's state court petition, it does not appear that P&S, LLC ever moved to intervene or be substituted as the proper party defendant in the state court proceeding.
28 U.S.C. § 1441(a) provides that "[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." Emphasis added. In an unpublished opinion, the Fifth Circuit has stated that De Jongh v. State Farm Lloyds, 555 Fed. Appx. 435, 437 (5th Cir. 2014) (citing Salazar v. Allstate Tex. Lloyd's, Inc., 455 F.3d 571, 575 (5th Cir. 2006); Housing. Auth. of City of Atlanta, Ga. v. Millwood, 472 F.2d 268, 272 (5th Cir. 1973). See also, Martinez v. El Paso Corp., 2011 WL 3606813, at * 2 (W.D. Tex. Aug. 16, 2011) ().
Although the language of De Jongh appears broad, the situation addressed in De Jongh involved the manufacturing of federal subject matter jurisdiction via substitution of a non-diverse defendant. In stating that "[a] non-party, even one that claims to be a real party in interest, lacks the authority to institute removal proceedings," the De Jongh court relied on Housing. Auth. of City of Atlanta, Ga. v. Millwood, 472 F.2d 268 (5th Cir. 1973) and Salazar v. Allstate Tex. Lloyd's, Inc., 455 F.3d 571 (5th Cir. 2006), two cases which also considered whether federal subject matter jurisdiction could be obtained via removal by a non-party. In Millwood, defendants sought to join the Secretary of the U.S. Department of Housing and Urban Development ("HUD") but failed to properly serve HUD or move for an order adding HUD as a party in the state court action. Thereafter, HUD removed the suit to federal district court based solely on "removal jurisdiction over HUD." Id. at 270. The Fifth Circuit explained that "HUD was not made a party to the suit, a precondition for the district court to have removal jurisdiction under either Title 28, U.S.C., Section 1441 or Section 1442(a)(1)." Id. at 272. In Salazar, plaintiff, a citizen of Texas, originally sued Allstate Texas, also a citizen of Texas, based on plaintiff's dissatisfaction with the way his insurance claim had been processed. Plaintiff did not sue Allstate Illinois, an Illinois citizen and the entity that had actually underwritten the policy. Id. at 572. Allstate Texas removed to federal court and filed a motion to join Allstate Illinois as a defendant and dismiss Allstate Texas, arguing that Allstate Illinois was the proper defendant. Id. at 572. The district court granted a motion to add Allstate Illinois and dismissed Allstate Texas, effectively substituting Allstate Illinois (a diverse entity) as the defendant in place of Allstate Texas (a nondiverse entity). Id. The Fifth Circuit explained that under Millwood, "where an entity has not properly been made a party in state court, removal jurisdiction cannot be premised on its presence in the action." Id. at 575 (citing Millwood, 472 F.2d at 272). Further, although Fed. R. Civ. P. 21 includes broad languageregarding substitution of parties, "Rule 21 does not allow for substitution of parties to create jurisdiction." Id. at 575. Id.
Similar to the facts of Salazar, in De Jongh, plaintiff, a Texas resident, sued State Farm Lloyds, Inc. ("Lloyds"), also a Texas resident. De Jongh, 555 Fed. Appx. at 436. State Farm Lloyds ("State Farm"), an entity completely diverse from plaintiff, filed an answer asserting it had been incorrectly named as Lloyds. Id. However, "State Farm did not move to intervene or otherwise request that the state court substitute it as the proper party in interest." Id. Thereafter, State Farm removed the case to federal court on the basis of diversity jurisdiction. The court noted that Id. at 438 (internal citations omitted). Significantly, the court noted that although State Farm argued...
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