Constantin Land Trust v. Epic Diving & Marine Servs., LLC

• Decision Date: 27 March 2013
• Docket Number: CIVIL ACTION NO. 12-259
• Parties: CONSTANTIN LAND TRUST v. EPIC DIVING AND MARINE SERVICES, LLC
• Court: U.S. District Court — Eastern District of Louisiana

CONSTANTIN LAND TRUST v. EPIC DIVING AND MARINE SERVICES, LLC

CIVIL ACTION NO. 12-259

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

Dated: March 27, 2013

MAGISTRATE JUDGE

JOSEPH C. WILKINSON, JR.

ORDER AND REASONS

This action for damages by a land trust against a limited liability company was removed to this court solely on the basis of diversity jurisdiction. Defendant impleaded another limited liability company as a third-party defendant, which then brought counterclaims against both the original plaintiff and the defendant. When the plaintiff filed its own counterclaim against the third-party defendant/plaintiff-in-counterclaim, the court sua sponte decided to examine its subject matter jurisdiction. The parties were ordered to file sworn affidavits or declarations under penalty of perjury that would establish the citizenship of the parties for purposes of diversity jurisdiction.

All parties consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Record Doc. Nos. 11, 40.

Having considered the complaint, as amended, the third-party demand, the counterclaims, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that this matter is remanded to the SeventeenthJudicial District Court for the Parish of Lafourche, State of Louisiana, because the court lacks subject matter jurisdiction.

IT IS FURTHER ORDERED that Constantin's motion to dismiss, motion for more definite statement and motion to strike Pitre's counterclaims, Record Doc. No. 48, is DISMISSED AS MOOT.

I. PROCEDURAL BACKGROUND

"Constantin Land Trust , a Louisiana Trust, represented herein through its duly authorized Trustee, James Constantin," brought this action against EPIC Diving and Marine Services, LLC ("EPIC") in the Seventeenth Judicial District Court for the Parish of Lafourche, State of Louisiana. Petition for Damages, Record Doc. No. 1-1 at p. 3. Constantin Land Trust ("Constantin") alleges that EPIC trespassed¹ on a 2.35 acre tract of land known as the Texaco Dock, which Constantin owns. Constantin claims that EPIC used, occupied, performed construction and dumped unspecified materials on plaintiff's property without any legal right or authorization, and that EPIC's use, occupancy and dumping caused damage to Constantin. Id. at p. 4.

EPIC removed the action to this court based solely on diversity jurisdiction. As to jurisdiction, defendant's Notice of Removal alleges:2.

This controversy is between citizens of different states. Upon information and belief, Plaintiff, Constantin Land Trust, is a Louisiana trust represented by its duly authorized trustee, James Constantin, who, upon information and belief, is an individual domiciled and residing in Oklahoma.

3.

Defendant EPIC is a citizen of states other than that of the Plaintiff. EPIC is a limited liability company whose sole member is TETRA Applied Technologies, LLC. The sole member of TETRA Applied Technologies, LLC is TETRA Applied Holding Company, which is a Delaware corporation with its principal place of business in The Woodlands, Texas.

Record Doc. No. 1, at pp. 1-2. Constantin never moved to remand the action to state court.

Constantin amended its complaint to add allegations that (a) EPIC knew that plaintiff had leased the Texaco Dock property to a third party, Pitre Industries, LLC ("Pitre"), and that the lease required Constantin's approval of any sublease; (b) EPIC willfully or negligently colluded with Pitre to circumvent that lease provision and entered into an unauthorized sublease with Pitre; and (c) EPIC's vessels and crew members negligently used, struck and damaged "bulkheads and pilings during navigation and/or while docking." Record Doc. No. 17 at pp. 2-4.

Without opposition from Constantin, EPIC received leave to file a "Third Party Demand and Rule 14(c) Tender" against Pitre. The third-party complaint states that Pitre Industries, LLC, is "a Louisiana limited liability company, who is authorized to do and doing business within this district, and can be served through its registered agent, ElmoJ. Pitre, III, at 18814 West Main, Galliano, Louisiana," and that "[j]urisdiction over this Third Party Demand exists under diversity jurisdiction, 28 U.S.C. § 1332, and maritime jurisdiction, 28 U.S.C. § 1333." Record Doc. No. 33 at p. 2. EPIC alleges that it was one of many customers of Pitre who used the Texaco Dock and that it had no knowledge of the lease between Pitre and Constantin. After explaining that Constantin has sued Pitre separately in state court for causes of action arising out of several leases between those two entities, including the Texaco Dock lease, EPIC asserts that Constantin

has alleged that EPIC² is liable for both (1) maritime tort and property damages, and (2) lease damages arising from Pitre's obligations to perform and pay CLT [Constantin] under its Texaco Dock lease with CLT. CLT seeks the same damages from EPIC in this suit. Thus, CLT is trying to collect the same tort and lease damages under state and maritime law from both EPIC and Pitre.

Id. at p. 3. EPIC alleges that any damages Constantin suffered with respect to the Texaco Dock property are the responsibility of Pitre or other third parties who used the Texaco Dock. Therefore, if EPIC is held liable to Constantin in the instant lawsuit, EPIC seeks contribution or indemnity from Pitre. EPIC states that it "has made amicable demand on Pitre. EPIC also tenders Pitre to [Constantin] under Rule 14(c) of the Federal Rules of Civil Procedure." Id. at p. 3.

Pitre answered the Third Party Demand and asserted counterclaims against EPIC and Constantin, alleging both diversity and maritime jurisdiction. Record Doc. No. 42.Pitre's voluminous counterclaims arise out of its written lease of the Texaco Dock property from Constantin, other written and oral agreements regarding several other properties owned by Constantin, and an alleged settlement agreement between these two parties regarding their entire relationship.

Constantin then filed a motion to dismiss, for a more definite statement and to strike Pitre's counterclaims. Record Doc. No. 48. Constantin argues that Pitre's counterclaims against it destroyed diversity jurisdiction because Constantin "is a Louisiana Trust and Pitre is a Louisiana limited liability company. Thus, this Court has jurisdiction only over the allegations relating to the Texaco Dock and EPIC's use of the facility[, which are compulsory counterclaims]. None of the other allegations are relevant to the cause asserted herein. All the other allegations must be dismissed" because they are permissive counterclaims over which the court lacks subject matter jurisdiction. Record Doc. No. 48-1 at p. 6.

Without opposition from EPIC or Pitre, Constantin received leave to file a counterclaim against Pitre. Plaintiff's counterclaim asserts that Pitre breached its lease with Constantin regarding the Texaco Dock property by entering into a sublease with EPIC and that Pitre is responsible for any physical property damage caused by Pitre or any third parties whom it allowed to have access to the property. Record Doc. No. 54. Constantin does not make any claims against Pitre that do not arise out plaintiff's ownallegations against EPIC. The counterclaim does not allege any basis for subject matter jurisdiction.

The court decided sua sponte to examine its subject matter jurisdiction. The court ordered all parties to "file in the record affidavits sworn under oath or penalty of perjury, specifically identifying the full names of all of their respective members, trustees and beneficiaries and stating the place of domicile (for individuals) and state of incorporation and principal place of business for corporations of each of those persons or entities for purposes of diversity jurisdiction." Record Doc. No. 56 at p. 2. The order noted that the parties in this case are a land trust and two limited liability companies, and provided citations to cases that address the citizenship requirements of those types of entities.

In response, EPIC filed a memorandum of law regarding subject matter jurisdiction and the affidavit of its president, Edwin H. Goldwin. Record Doc. No. 64. Goldwin affirms that EPIC is a limited liability company organized under Delaware law, with its principal place of business in Texas. The sole member and owner of EPIC is TETRA Applied Technologies, LLC, which is also a limited liability company organized under Delaware law with its principal place of business in Texas. The sole member of TETRA Applied Technologies, LLC is TETRA Applied Holding Company, which again is a Delaware corporation with its principal place of business in Texas. Record Doc.No. 64-1. EPIC argues in its memorandum that the court has maritime jurisdiction, even if diversity jurisdiction does not exist.

Pitre submitted the affidavit of Elmo Jay Pitre, III, which only partially complies with the court's order. Mr. Pitre avers that he and Tammy Pitre are the members of Pitre Industries, LLC. Although he states that the "domicile of Pitre Industries, LLC is Golden Meadow, Louisiana," Record Doc. No. 67, he does not provide the domicile of either himself or Tammy Pitre, which is the information that the court ordered and that the case law cited in the order establishes is necessary to determine the citizenship of a limited liability company. Pitre also filed a memorandum of law, in which it argues that the court has admiralty, federal question and supplemental jurisdiction over the parties' causes of action. Record Doc. No. 68.

Constantin submitted the affidavit of Jim Constantin, Jr., the managing trustee of Constantin Land Trust, "a Louisiana Trust," who provides the names and addresses of "[t]he individual trustees." Record Doc. No. 63 at p. 1. The addresses of the five named trustees are in Kansas, Texas, Louisiana and Oklahoma. Mr. Constantin does not say that these are plaintiff's only trustees or that the listed addresses...