Peters v. Pumpkin Air, Inc.

• Decision Date: 02 June 1986
• Docket Number: No. 85-1151-B.,85-1151-B.
• Citation: 635 F. Supp. 825
• Parties: Linda Marie Hatfield PETERS, et al. v. PUMPKIN AIR, INC., et al.
• Court: U.S. District Court — Middle District of Louisiana

635 F. Supp. 825

Linda Marie Hatfield PETERS, et al. v. PUMPKIN AIR, INC., et al.

No. 85-1151-B.

United States District Court, M.D. Louisiana.

June 2, 1986.

Paul H. Dué, Baton Rouge, La., for plaintiffs.

Kenneth H. Laborde, Dermot S. McGlinchey, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for Pumpkin Air, Inc.

A.R. Christovich, Jr., Christovich & Kearney, New Orleans, La., for Bell Helicopter Textron, Inc.

Robert E. Kerrigan, Jr., Darrell K. Cherry, Deutsch, Kerrigan & Stiles, New Orleans, La., for Avco Corp.

POLOZOLA, District Judge.

On November 18, 1985, Linda Marie Hatfield Peters¹ filed this suit in the Twenty-First Judicial District Court for the Parish of St. Helena against Pumpkin Air, Inc. ("Pumpkin Air"), Bell Helicopter Textron, Inc. ("Bell"), Avco Corporation ("Avco") and John Doe to recover damages caused by the wrongful death of Michael Leverette Peters who was killed when the Bell Model 222 helicopter, in which he was a passenger, crashed onto an oil platform located off the coast of Louisiana. Pumpkin Air, the operator of the helicopter, is a corporation organized under the laws of Texas with its principal place of business in Texas. Avco, the manufacturer of the engines of the helicopter, is a corporation organized under the laws of Delaware with its principal place of business in Connecticut. Bell, the manufacturer of the helicopter, is a corporation organized under the laws of Delaware with its principal place of business in Texas. John Doe, an employee of Pumpkin Air, was the mechanic who serviced the helicopter prior to its crash and is a citizen of Louisiana. The John Doe defendant has not been served.

On December 12, 1985, Pumpkin Air timely filed² a petition for removal.³ Two bases of subject matter jurisdiction were asserted in the petition for removal: (1) diversity of citizenship, 28 U.S.C. § 1332, and (2) Outer Continental Shelf Lands Act ("OSCLA"), specifically 43 U.S.C. § 1349(b). Subsequently, the present motion to remand was filed. The motion to remand is based upon the contention that this suit was removed "improvidently and without jurisdiction"⁴ because it is not a civil action over which this court would have original jurisdiction.⁵ Plaintiff contends this action is not one over which a federal district court would have original jurisdiction because diversity of citizenship does not exist and the suit is not premised upon a claim pursuant to OCSLA.

It is incumbent upon the party invoking the jurisdiction of a federal court to demonstrate the existence of subject matter jurisdiction when the court's jurisdiction has been challenged. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981); Village Fair Shopping Co. v. Sam Broadhead Trust, 588 F.2d 431 (5th Cir.1979). As stated by the Fifth Circuit in Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983), "the party invoking the court's jurisdiction bears the burden of `alleging with sufficient particularity the facts creating jurisdiction' and of `supporting the allegation' if challenged." Id. at 1052, citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 287 n. 10, 58 S.Ct. 586, 590 n. 10, 82 L.Ed. 845 (1938). When a case has been removed to federal court, it is the removing party who bears the burden of establishing the court's jurisdiction. Carson v. Dunham, 121 U.S. 421, 7 S.Ct. 1030, 30 L.Ed. 992 (1887); Hale v. Billups of Gonzales, 610 F.Supp. 162 (M.D. La.1985). In the present case since jurisdiction has been challenged in plaintiff's motion to remand, it is incumbent upon the defendants to establish that subject matter jurisdiction exists. If the defendants fail to demonstrate that subject matter jurisdiction exists, the case must be remanded to the state court from which it was removed. B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir.1981).

I. Jurisdiction Under 28 U.S.C. § 1332

Peters asserts that there is no subject matter jurisdiction based upon diversity of citizenship because the requisite complete diversity, as required by Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435 (1806), is lacking. Mover contends that complete diversity is lacking because the plaintiff and one of the defendants, John Doe, are both alleged to be citizens of Louisiana.⁶ Pumpkin Air, in its opposition to the motion to remand,⁷ contends that complete diversity does in fact exist because the citizenship of the John Doe defendant should be disregarded in the determination of the existence of diversity jurisdiction under 28 U.S.C. § 1332.⁸

If the identity of an actual defendant is unknown at the time the action is instituted the Louisiana courts allow the plaintiff to name a John Doe defendant in the petition. See generally Gravois v. Uniroyal, 458 So.2d 949 (La.App. 1st Cir.1984); Templet v. Johns, 417 So.2d 433 (La.App. 1st Cir. 1982), writ denied 420 So.2d 981 (La.1982); Shotts v. John Doe, 347 So.2d 318 (La.App. 4th Cir.1977); Commercial Union Insurance Co. v. Bringol, 262 So.2d 532 (La. App. 4th Cir.1972). In the present case, the plaintiff alleged in paragraph 1D of the petition filed in state court:

The following parties are made defendants herein:

. . . . .

D. JOHN DOE, who at all pertinent times was alleged on information and belief to have been an employee of defendant, Pumpkin Air, Inc., and more particularly the person who performed maintenance work upon the aforementioned helicopter in Intracoastal City, Louisiana, or thereabout, alleged on information and belief to be of legal age, domiciled in and a resident of Vermillion Parish, or, in any event, a citizen and resident of the state of Louisiana

The claim against John Doe was specified in paragraph 6D as follows:

This defendant, who at all pertinent times was employed by defendant, Pumpkin Air, Inc., was the mechanic who serviced this helicopter allegedly at Intracoastal City, Louisiana. This defendant was negligent in the type of repairs performed by him and in failing to properly inspect the helicopter and to find the defective conditions thereof which caused or contributed to the crash thereof.

Pumpkin Air's contention that the citizenship of the John Doe defendant should be disregarded in the determination of presence of diversity jurisdiction is without merit. In Pullman Company v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1939), a resident plaintiff filed suit against the Pullman Company, a non-resident corporation, and one of its porters who was designated as John Doe One. The petition alleged the porter's relationship to the corporation as well as his negligence as an employee or agent of the corporation. In holding that the Pullman Company was required to demonstrate that the porter was not a resident of the same state as the plaintiff in order to justify removal, the United States Supreme Court stated:

We think that the fact that the Pullman porter was sued by a fictitious name did not justify removal. His relation to the Pullman Company and his negligence as its servant were fully alleged. Citation omitted. Nor does the fact that the residence of the porter was not set forth justify disregarding him. It was incumbent upon the Pullman Company to show it had a separable controversy which was wholly between citizens of different States. As in determining whether there was such a separable controversy with respect to the Pullman Company its porter could not be ignored, the Company was bound to show that he was a nonresident in order to justify removal.

Pullman, 305 U.S. at 540, 59 S.Ct. at 350.⁹ In Pecherski v. General Motors Corp., 636 F.2d 1156 (8th Cir.1981), a General Motors employee filed suit based upon negligent medical treatment in a company dispensary. General Motors and "Jane Doe," alleged to have been a nurse acting as an agent and servant of General Motors, were named as defendants. The Eighth Circuit held that the removal of the case by General Motors was improper because "under Pullman, General Motors had the burden of establishing diversity of citizenship between plaintiff Pecherski and all named defendants, including the Jane Doe defendant, notwithstanding the plaintiff's failure to allege her citizenship or serve her with process." Pecherski, 636 F.2d at 1156. However, as noted by the Eleventh Circuit, a "plaintiff cannot join fictitious resident defendants in order to deprive a non-resident defendant of the right to remove the action to federal court." Coker v. Amoco Oil Co., 709 F.2d 1433, 1439 (11th Cir.1983). In following the view of one commentator that "if fraudulent joinder is not shown and if the allegations of the complaint indicate that the Doe defendants are not nominal parties, the district court will remand the case,"¹⁰ the Coker Court stated that "in the absence of proof that the allegations against the fictitious defendants are fraudulent, the complaint does not become removable until the plaintiff takes some affirmative action indicating that he does not wish to pursue his claims against the fictitious defendants." Coker, 709 F.2d at 1439. In Abels v. State Farm Fire & Casualty Company, 770 F.2d 26 (3rd Cir. 1985), the issue before the court was framed as "what effect, if any, is to be given the joinder of ten fictitiously named `Doe' defendants" all alleged to have the same citizenship as that of the plaintiff when jurisdiction is premised upon diversity. Abels, 770 F.2d at 29. After first noting that Pullman "establishes that the presence of fictitiously named defendants in a state court complaint may, in certain circumstances, defeat diversity jurisdiction upon a petition for removal", the Abels Court set forth the following analysis to resolve the issue:

Pullman suggests to us a two step analysis for determining whether the Doe defendants destroy diversity in this case. First, we must ask whether, on the face of the complaint, there are sufficient allegations

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