Smith v. JCC Fulton Development, LLC et al

Filing 54

ORDER AND REASONS REMANDING CASE TO STATE COURT. Signed by Judge Barry W Ashe on 11/5/2018. (Attachments: # 1 Transmittal Letter)(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SHERRI SMITH

CIVIL ACTION

VERSUS

NO. 17-6620

JCC FULTON DEVELOPMENT, LLC
d/b/a HARRAH’S HOTEL, et al.

SECTION: M (2)

ORDER & REASONS
This litigation involves a slip and fall accident. Plaintiff Sherri Smith (“Smith”) filed this
action in the Civil District Court, Parish of Orleans, State of Louisiana alleging that, on June 16,
2016, she was injured when she slipped and fell in water in her hotel room at Harrah’s New
Orleans Hotel.1 Smith named as defendants: JCC Fulton Development, LLC; Harrah’s New
Orleans Management Company; Jazz Casino Company, LLC; and, Mergeco Harrah’s New
Orleans Management Company, LLC (collectively, “Defendants”).2 Defendants removed the
action to the United States District Court for the Eastern District of Louisiana alleging diversity
subject-matter jurisdiction under 28 U.S.C. § 1332.3
Thereafter, the Court ordered the parties to demonstrate that the amount in controversy
was more than $75,000.00.4

Defendants submitted a memorandum outlining the extent of

Smith’s injuries, which could potentially include nine herniated discs.5 Smith submitted an MRI
report which demonstrates multiple issues with her back.6

After reviewing the parties’

submissions, the Court was satisfied that there is potentially more than $75,000.00 in
controversy.7

1

R. Doc. 1-1 at 1-2.
Id.
3
R. Docs. 1 at 2.
4
R. Doc. 5.
5
R. Docs. 7 & 8.
6
R. Doc. 8-1.
7
R. Doc. 46.
2

On February 23, 2018, the Court granted Smith’s unopposed motion for leave to file her
First Supplemental and Amending Petition for Damages.8 Smith’s amended complaint adds
Bernhard MMC, LLC (“Bernhard”) as a defendant, alleging that Bernhard is “a Louisiana
limited liability company, authorized to do, and doing business, in the Parish of Orleans, State of
Louisiana.”9
After the case was transferred to this Section, the Court determined that Bernhard’s
citizenship is not clear from the pleadings, and the existence of federal jurisdiction is in question,
because the Fifth Circuit has held that the citizenship of an LLC “is determined by the
citizenship of all its members.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079-80 (5th
Cir. 2008). Smith’s amended complaint contains no allegations regarding Bernhard’s members
or their citizenship.10 Thus, the Court issued an order requiring the parties to submit a response
sufficiently alleging the identity of all the members of Bernhard and the state of citizenship of
each member as of the date of the filing of the amended complaint.11
Bernhard responded that its sole member is Bernhard Services, LLC which is “a
Delaware Limited Liability Company.”12 Because Bernhard did not provide any information on
the members of Bernhard Services, LLC, the Court ordered Bernhard to file a response
sufficiently alleging the identity of the members of Bernhard Services, LLC, until the citizenship
of Bernhard is properly traced to corporations or individuals.13 Bernhard filed a second response
in which it demonstrates that it is a citizen of Louisiana for the purposes of diversity subject-

8

R. Docs. 21.
R. Doc. 22 at 1.
10
Id.
11
R. Doc. 46.
12
R. Doc. 48 at 1.
13
R. Doc. 51.
9

2

matter jurisdiction.14 Because Smith and Bernhard are both Louisiana citizens, this Court lacks
diversity subject-matter jurisdiction.
After the Court requested information regarding Bernhard’s citizenship, the other
defendants filed a motion to vacate the Court’s order granting Smith’s unopposed motion to file
the amended complaint.15 They argue that the order should be vacated because the Court failed
to consider the factors set forth in Hensgens v. Deere & Co., 833 F.2d 1179 (5th Cir. 1987), prior
to allowing the addition of a potentially non-diverse party.16 Smith’s motion for leave to file the
amended complaint was unopposed, so it was not made apparent to the Court at the time that the
weighing of the Hensgens factors was warranted. Indeed, this Court had to twice order the
parties to ascertain and allege Bernhard’s citizenship for purposes of evaluating whether
diversity subject-matter jurisdiction is lacking. Therefore, the motion to vacate is DENIED.
Accordingly, IT IS ORDERED that this matter is remanded to the Civil District Court,
Parish of Orleans, State of Louisiana.

New Orleans, Louisiana, this 5th day of November 2018.

________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

14

R. Doc. 53.
R. Doc. 50.
16
R. Doc. 50-1 at 1-2.
15

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