Joseph v. Fluor Corp.

• Citation: 513 F.Supp.2d 664
• Decision Date: 20 June 2007
• Docket Number: Civil Action No. 07-516.
• Parties: Jean JOSEPH, et al. v. FLUOR CORPORATION, et al.
• Court: U.S. District Court — Eastern District of Louisiana

513 F.Supp.2d 664

Jean JOSEPH, et al. v. FLUOR CORPORATION, et al.

Civil Action No. 07-516.

United States District Court, E.D. Louisiana.

June 20, 2007.

COPYRIGHT MATERIAL OMITTED

Christopher James Bruno, Bruno & Bruno, New Orleans, LA, for Jean Joseph.

Christopher James Bruno, Bruno & Bruno, New Orleans, LA, for Mijah Joseph and Ronald Ash.

Cleo Fields, Courtney Rene Decuir, Michael Charles Guy, The Fields Law Firm, Kenneth H. Hooks, III, Dodson & Hooks, APLC, Baton Rouge, LA, for Vernadine Mabry 07-628.

William Stafford Neblett, Michael Sheldon Koch, Neblett, Beard & Arsenault, Alexandria, LA, for Bernard Mabry, III 07-1270, Tiffany Larkin 07-1270 and Tallison Larkin 07-1270 Individually and on Behalf of their Father, Bernard Mabry, II.

Jerry L. Saporito, Edward T. Hayes, Saporito Law Firm, LLC, New Orleans, LA, for Fleetwood Enterprises, Inc. and Fleetwood Travel Trailers of Texas, Inc.

Robert Louis Bonnaffons, Ronald J. Sholes, Adams and Reese LLP, New Orleans, LA, Adriane Y. Sammons, George R. Neuhauser, Nall & Miller, LLP, Atlanta, GA, for Maytag Corporation Doing Business as Magic Chef.

William L. Schuette, Jr., Brandon Kelly Black, Kevin O. Ainsworth, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, LLP, Baton Rouge, LA, for Fluor Enterprises, Inc.

ORDER & REASONS

ELDON E. FALLON, District Judge.

These consolidated cases involve the alleged malfunction of a gas stove, propane tank, and/or gas alarm that caused an explosion in a trailer provided to Ms. Jean Joseph by the Federal Emergency Management Agency ("FEMA") for temporary residence following Hurricane Katrina. Before the Court are four motions for leave to amend the various complaints and a premature motion to remand. The Court heard oral argument and took these motions under submission. For the following reasons, the Court now GRANTS three of the motions to amend and will REMAND these cases to state court because the addition of non-diverse parties to this litigation destroys complete diversity and federal jurisdiction does not otherwise exist.

I. BACKGROUND

In the aftermath of Hurricane Katrina, FEMA embarked on an unprecedented relief effort in the Gulf South to provide affected residents with temporary housing. With few apartments, condominiums, and houses available for occupancy, FEMA had provided over 100,000 travel trailers and mobile homes in Louisiana, Mississippi, and Alabama as of August 17, 2006.¹ The majority of these are travel trailers located on residents' private property next to their damaged homes, although a number of group sites have also been established across the region. One of the plaintiffs in these cases, Ms. Jean Joseph, received a travel trailer from FEMA and had it placed at 7730 Branch Street in New Orleans, Louisiana.

While FEMA has traditionally maintained a small inventory of temporary housing, following the active 2005 hurricane season the agency placed orders with a number of manufacturers to rapidly build additional units. Fleetwood Enterprises, Inc. ("Fleetwood") designed and manufactured the trailer at issue in these cases, which was equipped with a gas stove manufactured by Maytag Corporation ("Maytag"). FEMA awarded a contract to Fluor Corporation ("Fluor") to inspect the trailers, install them on-site, and explain the trailers' functions to occupants. The parties have recently learned, however, that Fluor entered into a subcontract with MMR Constructors, Inc. ("MMR"), which provided that MMR would be responsible for the actual transportation, installation, and inspection of certain trailers, and for acquainting occupants with the trailers and their appliances.

On or about August 22, 2006, Ms. Joseph met an MMR employee at her FEMA trailer in New Orleans. The MMR representative explained the trailer's functions and operations to her, but allegedly had trouble getting the gas stove to work. Several days later, on August 25, 2006, Ms. Joseph and an acquaintance, Mr. Bernard Mabry II, noticed the smell of gas as they entered her trailer. As they approached the gas stove, the trailer exploded, injuring Ms. Joseph and ultimately killing Mr. Mabry.

This litigation consists of three individual cases that were filed in state court by Ms. Joseph and her children, Mr. Mabry's wife, and Mr. Mabry's surviving children (collectively, "Plaintiffs") against Fleetwood, Maytag, and Fluor (collectively, "Defendants"). The cases were removed by the Defendants, assigned the following case numbers, and subsequently consolidated in federal court: Jean Joseph, et al. v. Fluor Corporation, et al., Civil Action No. 07-516 (Joseph); Vernadine Mabry v. Fleetwood Enterprises, Inc., et al., Civil Action No. 07-628 (Mabry I); and Bernard Mabry, III, et al. v. Fluor Corporation, et al., Civil Action No. 07-1270 (Mabry II).

The Joseph case was removed on January 26, 2007, and the Mabry I case was removed on February 7, 2007, both solely on the basis of diversity jurisdiction, 28 U.S.C. § 1332. Mabry II was removed on March 13, 2007, also on the basis of diversity jurisdiction. But the notice of removal in Mabry II contends that, alternatively, removal is appropriate pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). There is no dispute that these cases were properly removed, because complete diversity exists between the parties.²

II. PRESENT MOTIONS

The Plaintiffs now seek to amend their complaints to add claims against various non-diverse defendants. First, the plaintiffs in Joseph have filed a motion for leave to add Derrian Green as a defendant.³ Mr. Green appears to be a FEMA employee that signed a "unit inspection report" found in Ms. Joseph's trailer. Second, the plaintiffs in Joseph also seek leave to add MMR as a defendant, and the plaintiffs in Mabry I and Mabry II seek leave to add claims against MMR and Keith McLin, an employee of MMR believed to be the representative that met with Ms. Joseph on August 22, 2006.⁴

All of these additional parties are citizens of Louisiana and their addition to this litigation would destroy the Court's diversity jurisdiction. Accordingly, the Plaintiffs argue that these cases should be remanded to state court if the amendments are allowed. While the Defendants do not object to the amendments, they do oppose remand, contending that (1) removal was also proper under the federal officer removal statute, 28 U.S.C. § 1442(a)(1); (2) federal question jurisdiction exists pursuant to 28 U.S.C. § 1331, because the Plaintiffs make veiled claims under the National Manufactured Housing Construction and Safety Standards Act ("NMHCSSA"), 42 U.S.C. §§ 5401-5426; and (3) the addition of Mr. Green as a defendant will confer federal jurisdiction in these cases under 28 U.S.C. § 1346(b)(1).

III. LAW & ANALYSIS

A. Proposed Amendments

Rule 15(a) provides that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). But "[i]f after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to State Court." 28 U.S.C. § 1447(e); see also Cobb v. Delta Exports, Inc., 186 F.3d 675 (5th Cir.1999). Indeed, when a proposed amendment would destroy the Court's subject matter jurisdiction, the Court must scrutinize the "amendment more closely than an ordinary amendment." Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987). To determine whether equity favors the proposed amendments in this case, the Court must consider "(1) the extent to which the purpose of the amendment is to defeat diversity jurisdiction, (2) whether the plaintiff has been diligent in requesting an amendment, (3) whether the plaintiff will be prejudiced if the amendment is denied, and (4) ally other factors bearing on the equities." Stewart v. Marriott Courtyard, No. 03-2747, 2003 WL 22883629, at *2 (E.D.La. Dec.5, 2003) (citing Hensgens, 833 F.2d at 1182); see also Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1029 & n. 11 (5th Cir.1991).

1. Derrian Green

The Joseph plaintiffs originally sought to add Derrian Green as a defendant in this litigation because his signature was affixed on a "unit inspection report" found in Ms. Joseph's trailer. See Ex. 1 to Pls.' Mot. to Remand (Rec.Doc.13-3). Based upon this document, the plaintiffs originally thought that Mr. Green was an employee of Fluor and that he was the individual who showed Ms. Joseph around her trailer on August 22, 2006. As discussed below, however, it now appears that Keith McLin, an employee of MMR, was the individual that met Ms. Joseph at her trailer, not Mr. Green. Indeed, the Defendants have submitted an uncontroverted affidavit from Audrey Gray, a human resources employee of Fluor, in which she declares that Mr. Green is not an employee of Fluor. See Ex. 3 to Fluor's Mem. in Opp'n to Pls.' Mot. to Remand (Rec. Doc.72-4). Rather, it appears to the Court that Mr. Green is actually an employee of FEMA. Mr: Green signed the "unit inspection report" in the box reserved for the "FE MA Rep," not in either of two boxes " reserved for "Contractors." In addition, the Defendants have submitted an uncontroverted affidavit from Robert Funkhouser, a Fluor employee who manages the company's relationship with FEMA, in which he declares that the "unit inspection report" signed by Mr. Green is a "90-13" form typically filled out by FEMA representatives when trailers arrive in local staging yards. See Ex. 2 to Fluor's Mem. in Opp'n to Pls.' Mot. to Remand (Rec.Doc. 72-3).

The Court notes that following a limited period of jurisdictional discovery, the Joseph plaintiffs have abandoned their claims against Mr. Green. The proposed claims against Mr. Green were based on the belief that he met with Ms. Joseph on August 22, 2006. But in a subsequent motion to amend, the Joseph plaintiffs have replaced those claims with identical claims against MMR and Mr. McLin. Moreover, Mr. Green's apparent status as...