Dora Boudreaux v. U.S. Flood Control Corporation

Filing

Case: 10-30288

Document: 00511198191

Page: 1

Date Filed: 08/09/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 9, 2010 N o . 10-30288 S u m m a r y Calendar Lyle W. Cayce Clerk

D O R A A. BOUDREAUX, Trustee for Alzec J. Autin Revocable Living Trust,

P la in t iff - Appellee v. U .S . FLOOD CONTROL CORPORATION,

Defendant - Appellant

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:07-CV-3211

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* T h e trustee of the Alzec J. Autin Revocable Living Trust, Dora Boudreaux (" B o u d r e a u x " ), brought suit against U.S. Flood Control Corporation ("U.S. F lo o d " ) in Louisiana state court, alleging trespass on land owned by the trust. Boudreaux alleged that U.S. Flood, through the actions of its local employee, T o b y Champagne ("Champagne"), had, without consent, stored materials on the
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

Case: 10-30288

Document: 00511198191

Page: 2

Date Filed: 08/09/2010

No. 10-30288 t r u s t 's land. U.S. Flood removed the suit to the United States District Court for t h e Eastern District of Louisiana on the basis of diversity jurisdiction. Following removal, U.S. Flood moved for summary judgment, claiming t h a t it could not be held vicariously liable for Champagne's actions because he w a s not acting within the course and scope of his employment. In response to t h is motion, Boudreaux sought leave to add Champagne as a defendant both in h is capacity as an employee of U.S. Flood and in his individual capacity. The motions for leave to amend were referred to a magistrate judge who d e t e r m in e d that Boudreaux had been unreasonably dilatory in seeking the a m e n d m e n t s and denied the motions. Boudreaux appealed the ruling, arguing t h a t she would be significantly injured if not permitted to add Champagne as a d e fe n d a n t. The district court agreed with Boudreaux, permitted amendment of her c o m p la in t , determined that the addition of Boudreaux defeated its subject m a t t e r jurisdiction, and remanded the suit to Louisiana state court. U.S. Flood a p p e a le d this order, noticing both the leave to amend and the remand orders. " B e f o r e we can proceed to the merits of this appeal, we must examine w h e t h e r we have jurisdiction to do so. We have jurisdiction to determine our o w n jurisdiction." Martin v. Halliburton, 601 F.3d 381, 386 (5th Cir. 2010) (c it in g Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 169 (5th C ir .2 0 0 9 )). Under 28 U.S.C. § 1447(e), "[i]f after removal the plaintiff seeks to jo in additional defendants whose joinder would destroy subject matter ju r is d ic t io n , the court may deny joinder, or permit joinder and remand the action t o the State court." 28 U.S.C. § 1447(e). And under § 1447(d), "[a]n order r e m a n d in g a case to the State court from which it was removed is not reviewable o n appeal or otherwise . . . ." Id. § 1447(d). W e have construed § 1447 as prohibiting review of orders remanding cases fo r lack of subject matter jurisdiction where lack of jurisdiction resulted from 2

Case: 10-30288

Document: 00511198191

Page: 3

Date Filed: 08/09/2010

No. 10-30288 jo in d e r of non-diverse parties. See Doleac ex rel. Doleac v. Michalson, 264 F.3d 4 7 0 , 493 (5th Cir. 2001) (dismissing appeal because "the amendment joining [n o n d iv e r s e party] as a defendant was a separable order but did not come within t h e collateral order exception. Therefore, § 1447(d) bars our review of the

r e m a n d and also of the amendment itself. Such preclusion, based upon the d ic t a t e s of § 1447(d), is not unconstitutional."). "We are bound by this

p r e c e d e n t ." Martin, 601 F.3d at 390 (citing United States v. Rose, 587 F.3d 695, 7 0 5 (5th Cir. 2009) (per curiam)). APPEAL DISMISSED.

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