Martin v. Boh Bros. Construction Co., LLC et al
ORDER AND REASONS granting 18 Motion to Remand to State Court and the Motion to Consolidate is Dismissed as moot. Signed by Judge Ivan L.R. Lemelle. (ijg) (Additional attachment(s) added on 10/28/2014: # 1 Remand Letter) (ijg).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRANDY MARTIN, on behalf of
her minor children, RONALD MARTIN,
III and DAMON MARTIN
BOH BROTHERS CONSTRUCTION
CO., L.L.C., ET. AL.
ORDER AND REASONS
Nature of Motion and Relief Sought
Before the Court are Plaintiff's Motion to Remand (Rec. Doc.
No. 18) and Motion to Consolidate (Rec. Doc. No. 7). Defendants
have filed an Opposition to the Motion to Remand (Rec. Doc. No.
19). Defendants have filed a Reply to the Motion to Consolidate.
(Rec. Doc. No. 20-2).
IT IS ORDERED that the Motion to REMAND is GRANTED and the
Motion to CONSOLIDATE is DISMISSED as MOOT.1
I. Procedural History and Facts of the Case
This case arrives on its second removal to this Court from the
Orleans Parish Civil District Court. It arises from a workplace
accident in which Ronald Martin received a violent blow to his head
and neck when cutting a concrete pipe with a STIHL TS-400 "cut-off
machine" and while working for Boh Brothers Construction Co., LLC
("Boh Brothers"). (Rec. Doc. No. 4). Rhonda Danos, as curatix for
Ronald Martin, initiated a civil suit in state court in March of
We are grateful for the work on this case by Lauren Michel a Tulane Law
School Extern with our Chambers.
Brothers, Martin's employer. Id. Brandy Martin, on behalf of her
minor children, Ronald Martin, III and Damon Martin (“Brandy
Martin, et. al.”) filed a similar petition in April of 2010. (Rec.
Doc. No. 19).
Defendants removed both cases to this Court, where they were
ultimately consolidated (Rec. Doc. No. 18-1, 19). The cases both
named Boh Brothers (Louisiana citizen) and STIHL (Virginia citizen)
as defendants, and the amount in controversy exceeded $75,000.(Rec.
Doc. No. 19). The Plaintiffs demanded remand. Id. STIHL argued that
diversity existed because Boh Brothers was fraudulently joined. Id.
STIHL argued that Boh Brothers, as Ronald Martin’s employer, was
immune from tort suit under the Louisiana Worker’s Compensation
Act. STIHL further contended that the intentional tort exception
La.Rev.Stat.An. § 23:1032(B) (1995) that was being alleged by the
Plaintiffs did not apply in this matter, citing Louisiana case law.
Id. The actions by Danos and Brandy et. al. were initially assigned
to this section and consolidated. (Case 14-505, Rec. Doc. No. 13).
This Court disagreed that Boh Brothers was fraudulently joined
remanded the cases to Orleans Parish Civil District Court on
October 12, 2010. (Rec. Doc. No. 18-1, 19). In that decision, this
Court emphasized that “since the purpose of the improper joinder
inquiry is to determine whether or not the in-state defendant was
properly joined, the focus of the inquiry must be on the joinder,
not the merits of the Plaintiff’s case.” (Case No. 10-1469, Rec.
Doc. No. 36 at 2 & 5)(quoting Smallwood v. Ill. Cent. R.R. Co., 385
F.3d 568, 573 (5th Cir. 2004)). The consolidated cases proceeded in
state court for nearly four years until the Louisiana Supreme Court
granted Boh Brother’s Motion for Summary Judgment based on the
grounds that it enjoyed tort immunity under the Louisiana Worker’s
Compensation scheme and that the intentional tort exception did not
apply. (Case No. 10-1469, Rec. Doc. No. 36).
Defendants filed separate notices of removal on March 6, 2014
for Rhonda Danos and Brandy Martin, et. al. asserting that complete
diversity now existed. Id. On March 7, 2014, Defendants filed a
Notice of Related Cases associated with the Brandy Martin, et. al.
case, claiming the subject matter comprised all or a material part
of the subject matter or operative facts involved in the pending
Danos case. (Rec. Doc. No. 4). The case was then transferred on
March 12, 2014 to this section. Id.
On March 13, 2014, a “Motion to Remand on Behalf of All
Plaintiffs” was filed under Civil Action 2:14-cv-00505, the case
number assigned to the action by Rhonda Danos. (Rec. Doc. No. 6-1).
This Motion to Remand purported to operate for both Rhonda Danos
and Brandy Martin, et. al. Id. Brandy Martin, et. al. filed a
Motion to Consolidate on April 9, 2014. (Rec. Doc. No. 7).
In response to the March, 2013 Motion to Remand, an order was
issued by this Court on July 31, 2014 properly remanding Rhonda
Danos’s case for lack of subject matter jurisdiction. (Case No. 14505, Rec. Doc. No. 6-1). This Court made it clear that STIHL was
incorrect when it contends that the one-year time-limit for removal
does not apply because the case was removable on the face of the
original pleadings. Id. The Louisiana Supreme Court granted summary
judgment on the merits, not on the basis of fraudulent joinder. Id.
The Louisiana Supreme Court decision has no bearing on the prior
holding of this Court that the case was not removable on the face
of the pleading in 2010, and this second removal is untimely for
being far beyond one year of commencement of suit. (Case No. 101469, Rec. Doc. No. 13). At the time of this Court’s decision
remanding the Danos case, there was no motion to remand pending
before the Court in the Brandy Martin, et. al. action. On August 1,
2014, Brandy Martin, et. al. filed the Motion to Remand that is
being addressed at this time. (Rec. Doc. No. 18).
II. Law & Analysis
The issues raised are three-fold: 1) whether the original
Motion to Remand (Case No. 14-505, Rec. Doc. No. 6-1) applied to
both cases; 2) whether the Motion to Consolidate (Rec. Doc. No. 7)
can operate to effect a remand in this case; and 3) whether the
second Motion to Remand (Rec. Doc. No. 18) is effective.
A. Original Motion to Remand
The original Motion to Remand on Behalf of All Plaintiffs was
deficient. (Rec. Doc. No. 6-1). The case name was Rhonda Danos, as
curatrix of Ronald Matin, Jr. v. STIHL Incorporated. Id. There is
no mention of Brandy Martin, et. al. Id. The civil action number
was docketed properly as 14:505, the docket number for the Danos
case. Under Local Civil Rule 10.2 of the United States District
pleadings and findings must list the name and docket number for the
consolidation had been filed at the time, and the cases were not
consolidated at the time of removal from Civil District Court. Id.
This appears to have been an error on the part of the attorneys in
this case not to file separate motions to remand.
Plaintiff’s error of not filing a motion to remand in their case
under a Federal Rule of Civil Procedure 60(a) correction. Federal
Rule of Civil Procedure 60(a) (2012) provides:
The court may correct a clerical mistake or a mistake arising
from oversight or omission whenever one is found in a
judgment, order, or other part of the record. The court may do
so on motion or on its own, with or without notice. But after
an appeal has been docketed in the appellate court and while
it is pending, such a mistake may be corrected only with the
appellate court's leave.
corrected by Rule 60(a), this type of error is not the type of
Marketing Corp, 12 F. 3d 497, 503-04 (5th Cir. 1994). Rule 60(a)
“is only [meant for] mindless and mechanistic mistakes, minor
shifting of facts, and no new additional legal perambulations” Id.
at 505. It is not for situations where “planetary excursions into
the facts [are] required” to determine the intentions of the
parties. Id. In the instant case, it was not a “mindless and
mechanistic mistake” to not file a timely motion to remand,
Further, Rule 60(a) would not apply here because the Motion to
Remand was filed under the correct civil action number, 14-505, and
not under 14-508 for Brandy Martin, et. al. Rule 60(a) does not
apply in this case. The Court finds that the original Motion to
Remand does not apply to the action by Brandy Martin, et. al.
B. Motion to Consolidate
Section 1446 establishes certain procedural requirements for
removal of civil actions. Section 1446(b) sets forth timeliness
requirements. At all times relevant to the instant motion, 1446(b)
The notice of removal of a civil action or
proceeding shall be filed within thirty days after the
receipt by the defendant, through service or otherwise,
of a copy of the initial pleading setting forth the claim
for relief upon which such action or proceeding is based,
or within thirty days after service of summons upon the
defendant if such initial pleading has then been filed in
court and is not required to be served on the defendant,
whichever period is shorter.
If the case stated by the initial pleading is not
removable, a notice of removal may be filed within thirty
days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion,
order or other paper from which it may first be
ascertained that the case is one which is or has become
removable, except that a case may not be removed on the
basis of jurisdiction conferred by section 1332 of this
title more than 1 year after commencement of this action.
Fed. R. Civ. P. 1446(b) (2010).2
As the Fifth Circuit has explained, the requirement that a
case may not be removed on the basis of diversity jurisdiction more
than one year after commencement of an action only applies to cases
that were not removable on the face of the initial pleadings. New
York Life Ins. Co. v. Deshotel, 142 F.3d 873, 886 (5th Cir. 1998);
see also Johnson v. Heublein Inc., 227 F.3d 236, 241 (5th Cir.
2000)("the one-year limitation on removals applies only to the
second paragraph of that section, i.e., only to cases that are not
The Motion to Consolidate by Brandy Martin et. al. was not
filed until April 9, 2014, three days outside of the thirty day
time frame that is required by 28 U.S.C. 1446(b), and twenty-six
days after the original Motion to Remand was filed in the Danos
illustrate that the United States Fifth Circuit Court of Appeals
Congress amended 28 U.S.C. § 1446 in 2011 with the Federal Courts
Jurisdiction and Venue Clarification Act of 2011. See PL 112-63, December 7,
2011, 125 Stat 758. Those changes are inapplicable here, however, as they
apply only to an "action that is removed from a state court to a United States
district court and that had been commenced, within the meaning of State law,
on or after [January 6, 2012]." Id. at 764–65 (2011).
Separate Notice of Removal filed on March 6, 2014 (Rec. Doc. No. 1).
has ruled that clerical docket number errors can be remedied and
filings rendered timely. 132 F. 3d 1112 (1998). The distinguishing
feature in Sherrod is that there was only one plaintiff. In the
instant case, there are multiple plaintiffs whose actions were not
yet consolidated in this Court. Further, the fact that the Motion
to Consolidate was filed after the Motion to Remand on Behalf of
All Plaintiffs evidences that the Plaintiffs did not consider their
cases consolidated. Finally, the Danos case has already been
remanded to Civil District Court, thus Brandy Martin, et. al.
cannot be consolidated with the Danos case in this Court. Thus,
this Court finds that the Motion to Consolidate is moot and cannot
effect a remand.
C. Second Motion to Remand
A defendant may remove a civil action if the federal district
court would have had original jurisdiction over the case unless a
federal statute provides otherwise. 28 U.S.C. § 1441(a). The
jurisdiction exists and that removal was proper. Mumfrey v. CVS
Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir.2013). In reviewing
motions to remand, the Court is guided by the fact that federal
courts are courts of limited jurisdiction and should strictly
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
In the case at hand, Plaintiff, Brandy Martin, et. al. argues
that the second removal is (1) barred by 28 U.S.C. § 1132(d)’s
prohibition of review of remand orders, and (2) untimely under
section 1446(b) for being over one year after commencement of the
suit. (Rec. Doc. No. 18).4
Fifth Circuit in Baris v. Sulpicio Lines, Inc. held that “‘as
amended 1447(c) requires that motions for remand must be made
within 30 days of removal, except in cases in which the court lacks
subject matter jurisdiction’”. 932 F.2d 1540, 1545-46 (5th Cir.
1991). As is discussed above in the procedural history, based on
this Court’s prior decision in the Danos case, this Court lacks
subject matter jurisdiction. (Case No. 10-1469, Rec. Doc. No. 13).
Defendants contend that the Louisiana Supreme Court’s grant of
summary judgment to Boh Brothers confirms that there is diversity,
but this Court disagrees. (Rec. Doc. No. 19). “This contention
entails the serious error of conflating the analysis for fraudulent
joinder with that for the merits of a claim...‘the focus of the
[fraudulent joinder] inquiry must be on the joinder, not the merits
The Louisiana Supreme Court holding was based on the merits
Separate Notices of Removal filed March 6, 2014 (Case No. 14-505, Rec.
Doc. No. 1); Notice of Related cases filed March 7, 2014 (Case No. 14-508,
Rec. Doc. No. 4); Motion to Remand on Behalf of all Plaintiffs filed March 13,
2014 (Case No. 14-505, Rec. Doc. No. 6-1).
and does not disturb or contradict a finding that there is not
fraudulent joinder here. (Case No. 14-505, Rec. Doc. No. 13). In
remanding the Danos case, this Court stated, “the case was not
removable on the face of the pleading in 2010, [1446(b)] one-year
time limit therefore applies to this case, and this second removal
is untimely for being far beyond one year of the commencement of
the suit.” (Case No. 14-505, Rec. Doc. No. 13). The same would
apply to the instant case.
Title 28 U.S.C. § 1332 which provides that: “The district
courts shall have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between...citizens of
different states.” Here, the remaining Defendant, Boh Brothers is
a citizen of Louisiana and is thus non-diverse from the plaintiffs.
Because of the existence of a non-diverse defendant there is a lack
of subject matter jurisdiction. A challenge to subject matter
jurisdiction is non-waivable and may be challenged at any time.
Baris, 932 F.2d at 1546. Due to the limited jurisdiction of this
Court as set forth in Section 1332, remand would be appropriate and
necessary in this case.
Accordingly, IT IS ORDERED that this matter be REMANDED for
lack of subject matter jurisdiction. IT IS FURTHER ORDERED that the
Motion to Consolidate be DISMISSED as MOOT.
New Orleans, Louisiana, this 28th day of October, 2014
UNITED STATES DISTRICT JUDGE
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