Hensgens v. Deere & Co., No. 87-4251

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore REAVLEY, WILLIAMS and HIGGINBOTHAM; REAVLEY
Citation833 F.2d 1179
PartiesElizabeth M. HENSGENS, Individually and On Behalf Of the Minors, Karl Jude Hensgens, Brian Keith Hensgens, Catherine Elaine Hensgens, Mary Elizabeth Hensgens, Craig Robert Hensgens and Charles Hensgens, III, Plaintiffs-Appellants, v. DEERE & COMPANY, et al., Defendants-Appellees.
Docket NumberNo. 87-4251
Decision Date17 December 1987

Page 1179

833 F.2d 1179
Elizabeth M. HENSGENS, Individually and On Behalf Of the
Minors, Karl Jude Hensgens, Brian Keith Hensgens, Catherine
Elaine Hensgens, Mary Elizabeth Hensgens, Craig Robert
Hensgens and Charles Hensgens, III, Plaintiffs-Appellants,
v.
DEERE & COMPANY, et al., Defendants-Appellees.
No. 87-4251.
United States Court of Appeals,
Fifth Circuit.
Dec. 17, 1987.

Page 1180

Leslie J. Schiff, Anne E. Watson, Sandoz, Sandoz & Schiff, Opelousas, La., for plaintiffs-appellants.

Guglielmo, Lopez, Tuttle & Walker, James T. Guglielmo, Opelousas, La., for amicus curiae.

L. Lane Roy, Lee H. Ishee, Roy & Hattan, Lafayette, La., for Deere.

John E. McElligott, Jr., Davidson, Meaux, Sonnie & McElligott, Lafayette, La., for Gueydon.

Appeal from the United States District Court for the Western District of Louisiana.

Before REAVLEY, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

REAVLEY, Circuit Judge:

Elizabeth Hensgens, on behalf of herself and her minor children, appeals the grant of summary judgment for defendants Deere & Co. and Gueydan Tractor & Equipment Company ("Gueydan"). We vacate and remand.

I.

Charles Hensgens, Jr., Elizabeth's husband and the children's father, was killed on March 6, 1985 in an accident involving a John Deere Tractor. Elizabeth Hensgens (for herself and her minor children, all Louisiana citizens) brought suit against "John Deere Corporation" (an improper name) on February 25, 1986 in Louisiana state court. "Deere & Co." (the proper name) did not receive service until April 28, 1986. Deere (an Illinois corporation) then removed the case to federal court and Hensgens amended her complaint to change "John Deere Corporation" to "Deere & Co." In November, Hensgens moved to amend her complaint again to add Gueydan, the Louisiana corporation which sold the tractor, as a defendant.

Deere & Co. filed a summary judgment motion on the grounds that the one year Louisiana prescription period had expired. Based on Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), the district court granted the motion and dismissed Deere & Co. as a defendant. The court then dismissed Gueydan on the same grounds.

II.

For the first time on appeal Hensgens raises the issue of the district court's subject matter jurisdiction after Gueydan was added as a defendant. Timeliness does not matter, however, because subject matter jurisdiction cannot be waived. Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1297 (5th Cir.1985).

Complete diversity of citizenship is a statutorily mandated rule that is almost as old as the Republic itself. See Strawbridge v. Curtiss, 3 Cranch (7 U.S.) 267, 2 L.Ed. 435 (1806). Generally, jurisdiction is determined at the time the suit is filed. Mobil Oil Corp. v. Kelley, 493 F.2d 784, 786 (5th Cir.), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974). So the court would have jurisdiction to decide a case even if the plaintiff failed to prove his federal question claim, id. at 786, or if the amount in controversy falls below the jurisdictional amount, see, e.g., Garza v. Rodriguez,

Page 1181

59 F.2d 259, 260 (5th Cir.1977), cert. denied, 439 U.S. 877, 99 S.Ct. 215, 58 L.Ed.2d 191 (1978), or if one of the parties changes its residency during the pendency of the suit, Louisville N.A. & C. Ry. v. Louisville Trust Co., 174 U.S. 552, 566, 19 S.Ct. 817, 822, 43 L.Ed. 1081 (1899). See generally, IMFC Professional Services of Florida v. Latin American Home Health, Inc., 676 F.2d 152, 157 (5th Cir.1982). However, addition of a nondiverse party will defeat jurisdiction. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978).

The principles of jurisdiction involving removed cases are similar to cases brought originally in the district court. Remand to state court, instead of dismissal, is the appropriate action if there is a lack of subject matter jurisdiction. Remand after removal is controlled by 28 U.S.C. 1447(c) which provides, in part:

If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.

The statute provides the exclusive grounds for remand. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (1976). The language of 1447(c) does not mean that the court cannot consider post-removal developments. In Re Merrimack Mutual Fire Ins. Co., 587 F.2d 642, 646 (5th Cir.1978); IMFC Professional Services, 676 F.2d at 157-58. Instead, the rule for remand is the same as original diversity jurisdiction. That is, most post-removal developments--amendment of...

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  • McCorkindale v. American Home Assur. Co./AIC, No. C 95-4108.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • November 30, 1995
    ...remand on the basis of the amended complaint's amount in controversy, the Eighth Circuit Court of Appeals cited Hensgens v. Deere & Co., 833 F.2d 1179, 1180 (5th Cir.1987). Hensgens points out that jurisdiction is determined at the time the suit is filed, and that subsequent events, such as......
  • In re Doctors Hosp. 1997, L.P., Bankruptcy No. 05-35291.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • October 5, 2006
    ...334 (1939). 28. Diversity jurisdiction in federal court can be lost by adding additional necessary parties. (See Hensgens v. Deere & Co., 833 F.2d 1179, 1181 (5th 29. In instances where federal courts have found that state courts could adjudicate the dispute in a timely manner, the movant i......
  • U.S. v. Michalson, No. 99-60754
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 27, 2001
    ...Doleac v. Michalson, No. 1:98-CV-553-BrR (S.D. Miss. 28 Sept. 1999) (unpublished) (emphasis added) (citing Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987), cert. denied, 493 U.S. 851 (1989)). The Hensgens factors guide the court in whether to allow an amendment to add a "nondiv......
  • Mersmann v. Continental Airlines, Civil Action No. 03-5995 (JAG).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 20, 2004
    ...other factors bearing on the equities. Massaro v. Bard Access Sys., 209 F.R.D. 363, 369 (E.D.Pa.2002) (citing Hensgens v. Deere & Co., 833 F.2d 1179 (5th The removing party bears a "heavy burden of persuasion" towards showing that a non-diverse party was fraudulently joined. Batoff v. State......
  • Request a trial to view additional results
621 cases
  • McCorkindale v. American Home Assur. Co./AIC, No. C 95-4108.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • November 30, 1995
    ...remand on the basis of the amended complaint's amount in controversy, the Eighth Circuit Court of Appeals cited Hensgens v. Deere & Co., 833 F.2d 1179, 1180 (5th Cir.1987). Hensgens points out that jurisdiction is determined at the time the suit is filed, and that subsequent events, such as......
  • In re Doctors Hosp. 1997, L.P., Bankruptcy No. 05-35291.
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Southern District of Texas
    • October 5, 2006
    ...334 (1939). 28. Diversity jurisdiction in federal court can be lost by adding additional necessary parties. (See Hensgens v. Deere & Co., 833 F.2d 1179, 1181 (5th 29. In instances where federal courts have found that state courts could adjudicate the dispute in a timely manner, the movant i......
  • U.S. v. Michalson, No. 99-60754
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 27, 2001
    ...Doleac v. Michalson, No. 1:98-CV-553-BrR (S.D. Miss. 28 Sept. 1999) (unpublished) (emphasis added) (citing Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987), cert. denied, 493 U.S. 851 (1989)). The Hensgens factors guide the court in whether to allow an amendment to add a "nondiv......
  • Mersmann v. Continental Airlines, Civil Action No. 03-5995 (JAG).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • September 20, 2004
    ...other factors bearing on the equities. Massaro v. Bard Access Sys., 209 F.R.D. 363, 369 (E.D.Pa.2002) (citing Hensgens v. Deere & Co., 833 F.2d 1179 (5th The removing party bears a "heavy burden of persuasion" towards showing that a non-diverse party was fraudulently joined. Batoff v. State......
  • Request a trial to view additional results

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