Lewis v. Valero Refining-New Orleans, L.L.C. et al
ORDER & REASONS: denying 6 Motion to Remand. Signed by Judge Carl Barbier on 3/10/17. (sek)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VALERO REFINING-NEW ORLEANS,
SECTION: “J” (2)
ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 6)
filed by Ivan Lewis (“Plaintiff”), and an opposition thereto (Rec.
Doc. 12) filed by Valero Refining-New Orleans, LLC (“Valero-NO”).
Having considered the motion and legal memoranda, the record, and
the applicable law, the Court finds that the motion should be
FACTS AND PROCEDURAL BACKGROUND
This litigation derives from allegations that on October 31,
(Rec. Doc. 1-1 at 4.)
exposed to said chemicals.
Plaintiff alleges that he was
Plaintiff further alleges that he
became ill immediately upon inhaling the vapors and “has suffered
physical injuries, pain and suffering, lost wages, and emotional
distress from the moment” of exposure.
Id. at 4-5.
Plaintiff filed suit in the District Court for the Parish of
St. Charles in Louisiana state court, alleging state law negligence
Valero-NO; St. Charles Refinery; John Doe, Manager;
and XYZ Insurance Company.
Id. at 2-3.
(Rec. Doc. 1.)
Valero-NO removed the
In response, Plaintiff filed the
instant Motion to Remand (Rec. Doc. 6).
A defendant may remove a civil action filed in state court if
a federal court would have had original jurisdiction over the
action. See 28 U.S.C. § 1441(a). The district courts have original
jurisdiction over cases involving citizens of different states in
which the amount in controversy exceeds $75,000, exclusive of
interest or costs. 28 U.S.C. § 1332(a)(1).
(5th Cir. 1968).
The Court only has
See Harrison v. Prather, 404 F.2d 267, 272
“The concept of complete diversity requires that
all persons on one side of the controversy be citizens of different
states than all persons on the other side.”
party bears the burden of proving by a preponderance of the
evidence that federal jurisdiction exists at the time of removal.
De Aguilar v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir. 1995).
Ambiguities are construed against removal and in favor of remand
because removal statutes are to be strictly construed.
Prudential Prop. & Cas. Ins., 276 F.3d 720, 723 (5th Cir. 2002).
The jurisdictional facts supporting removal are examined as
of the time of removal.
Gebbia v. Wal-Mart Stores, Inc., 233 F.3d
diversity, the case must have been removable at the time it was
filed in state court, meaning that post-filing changes in a party’s
citizenship will not convert a nonremovable case into a removable
one. Gibson v. Bruce, 108 U.S. 561, 563 (1883). However, even when
a case is initially nonremovable, it may later become removable
Martineau v. ARCO Chem. Co., 203 F.3d 904, 910 (5th Cir. 2000);
Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 934 F.
Supp. 209, 212 (E.D. La. 1996).
Plaintiff makes two arguments in favor of remand.
Plaintiff argues that Valero-NO has failed to demonstrate complete
diversity between the parties because it has not proven that John
Doe, Manager is not a citizen of Louisiana.
argues that Valero-NO has failed to demonstrate that the amount in
controversy exceeds $75,000.
Each will be discussed in turn.
Plaintiff is a citizen of Louisiana. 1
To achieve complete
diversity, all defendants in the matter must not be citizens of
See Harrison, 404 F.2d at 272.
Thus, the citizenship
of all four defendants named by Plaintiff must be analyzed.
The first named defendant is Valero-NO.
liability company (“LLC”). The citizenship of an LLC is determined
by the citizenship of all its members.
Harvey v. Grey Wolf
Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008).
NO is entirely owned by a sole member, which is a corporation named
corporation is deemed to be a citizen of any state where it was
incorporated and the state where it has its principal place of
Plaintiff does not dispute, that VTDC is a Delaware corporation
with its principal place of business in Texas.
NO is a citizen of Delaware and Texas.
The other three named defendants are St. Charles Refinery,
John Doe, Manager, and XYZ Insurance Company.
All three are
fictitious names. The petition acknowledges that John Doe, Manager
Neither Plaintiff’s petition nor his motion to remand explicitly state that
he is a citizen of Louisiana. However, the petition states that Plaintiff is
a resident of the state (see Rec. Doc. 1-1 at 2), and the motion to remand
argues as if Plaintiff is a Louisiana citizen. (See Rec. Doc. 6-1 at 2.)
and XYZ Insurance Company are fictitious names to be used until
Plaintiff can ascertain their identities.
St. Charles Refinery is
a fictitious name because no such entity exists.
that although there is a refinery which is sometimes referred to
as the Valero St. Charles Refinery, it is not a business entity
capable of being sued.
Rather, Valero-NO asserts that the Valero
St. Charles Refinery is owned and operated by Valero-NO.
Rec. Doc. 1-3 at 1.)
Therefore St. Charles Refinery amounts to a
When determining whether diversity jurisdiction exists, “the
citizenship of defendants sued under fictitious names shall be
Refinery, John Doe, Manger, and XYZ Insurance Company are all
fictitious names, the citizenship of all three is disregarded.
Plaintiff argues that the petition sufficiently identifies John
Doe, Manager such that the burden falls on Valero-NO to demonstrate
that John Doe, Manager is not a citizen of Louisiana. The petition
states that John Doe, Manager was the “manager, assistant manager
and/or shift superintendent of the Valero manufacturing facility”
at all times pertinent to the litigation.
fictitious names is unambiguous.
However, the statutory
See Breaux v. Goodyear Tire &
Rubber Co., No. 15-0837, 2015 WL 4635566, at *2 (E.D. La. Aug. 3,
2015) (noting that the statute’s language “is clear and explicit”
and holding that it “does not allow for the ‘definite clue’
jurisprudential exception argued here by Plaintiffs”); Dixon v.
Greyhound Lines, Inc., No. 13-179, 2013 WL 4766797, at *2 (M.D.
Accordingly, the Court disregards the citizenship of John Doe,
Manager for purposes of diversity.
For these reasons, Valero-NO is the only defendant whose
citizenship is relevant.
Valero-NO is not a citizen of Louisiana.
Thus, complete diversity exists between the parties.
Amount in Controversy
jurisdiction, the amount in controversy must exceed $75,000.
28 U.S.C. § 1332(a).
“Because Louisiana law prohibits plaintiffs
from specifying the numerical value of their damages, the removing
party must prove that the amount in controversy exceeds $75,000 by
a preponderance of the evidence.”
Creppel v. Fred’s Stores of
Tennessee, Inc., No. 13-734, 2013 WL 3490927, at *2 (E.D. La. July
The removing defendant can demonstrate the amount in
apparent’ from the plaintiff’s pleading alone, or by submitting
Robertson v. Exxon Mobil Corp.,
814 F.3d 236, 240 (5th Cir. 2015).
It is facially apparent that the amount in controversy here
Plaintiff alleges to have inhaled toxic vapors
(Rec. Doc. 1-1 at 4.)
Further, Plaintiff alleges to
have experienced physical injury, pain and suffering, lost wages,
and emotional distress from the moment of the alleged exposure.
Plaintiff alleges that he is entitled to recover for “past
and future mental anguish associated with fear of disease; past
and future medical expenses, including medical monitoring; loss of
and impairment of life’s pleasure; loss of enjoyment of life; and
lost wages and/or diminution and/or loss of earning capacity.”
Id. at 9.
These allegations, in aggregate, would likely exceed
Additionally, the petition does not declare that the amount
in controversy does not exceed $75,000.
Although a plaintiff in
Louisiana state court is precluded from alleging a monetary amount
of damages in the petition, a petition claiming less than the
jurisdiction must make that allegation in the petition.
Code Civ. P. Art. 893(A)(1); Raggio, Cappel, Chozen & Berniard v.
Hartford Steam Boiler Inspection & Ins. Co., No. 06-1981, 2006 WL
4059093, at *1 (W.D. La. Dec. 29, 2006).
Petitions that do not
requirements are not met create a “strong presumption in favor of
Wornner v. Christian Home Health Care,
Inc., No. 13-6416, 2014 WL 130331, at *3 (E.D. La. Jan. 14, 2014)
(internal citations omitted).
Here, Plaintiff’s petition, which
does not include such a declaration, creates a strong presumption
in favor of federal jurisdiction.
The Court is further persuaded by an email exchange between
counsel for Plaintiff and counsel for Valero-NO.
On November 7,
2016, counsel for Valero-NO sent an email to Plaintiff’s counsel
offering to forego removal if Plaintiff would sign an affidavit
and binding stipulation.
(Rec. Doc. 1-3 at 1.)
affidavit and binding stipulation included two provisions.
The first provision stated: “I agree, aver, stipulate and
affirm that the total damages, exclusive of interest and costs,
that I am petitioning/praying to recover in the matter are less
than the sum of seventy-five thousand and 0/100 dollars ($75,000).”
The second stipulation stated: “I affirmatively and knowingly
penalties and statutory attorney’s fees, but exclusive of interest
and costs, in excess of seventy-four thousand, nine hundred ninetynine and 99/100 dollars ($74,999.99).”
Plaintiff did not
sign the proposed affidavit and binding stipulation.
Plaintiff’s counsel submitted a different proposed affidavit and
binding stipulation which did not include the two aforementioned
(Rec, Doc. 6-4.)
Rather, it stated: “I agree, aver,
stipulate and affirm that the total value of the general and
special damages that I am asserting in this matter are less than
the sum of seventy-five thousand and 0/100 dollars ($75,000.00).”
requirement is met in this case.
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (Rec.
Doc. 6) is DENIED.
New Orleans, Louisiana, this 10th day of March, 2017.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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