Crockett v. Louisiana Correctional Institute for Women, et al

Filing 9

ORDER AND REASONS: IT IS ORDERED that the 3 motion to remand is DENIED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 3/12/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LUCY CROCKETT

CIVIL ACTION

VERSUS

NO. 17-10186

LOUISIANA CORRECTIONAL
INSTITUTE FOR WOMEN, ET AL.

SECTION "B"(5)

ORDER AND REASONS
Plaintiffs

filed

a

motion

to

remand

the

above-captioned

matter to state court. Rec. Doc. 3. Defendants timely filed an
opposition. Rec. Doc. 5. The Court then ordered the parties to
file supplemental memoranda relative to pre-removal service of
process issues. Rec. Doc. 6. The parties timely complied. Rec.
Docs. 7; 8.
For reasons discussed below,
IT IS ORDERED that the motion to remand (Rec. Doc. 3) is
DENIED.
This was originally a wrongful death action brought by Lucy
Crockett, daughter of decedent Vallory Crockett, in Louisiana
state court on October 14, 2016.1 See Rec. Doc. 1-1 at 1-8. Vallory
Crockett was an inmate at the Louisiana Correctional Institute for
Women from 1979 until 1983. See id. at 2. In May 1983, Vallory
Crockett escaped from custody and was never apprehended. See id.
Because authorities did not mount a rigorous search for Vallory

1

Lucy Crocket passed away after the lawsuit was filed; her daughter, Monica
Crockett, and grandchildren, Tasha Miller and William Miller, Jr., were
substituted for her as Plaintiffs. See Rec. Doc. 1-1 at 43-46.

1

Crockett and returned her belongings to her family the day after
she purportedly escaped, Vallory Crockett’s family alleges that
she actually died in custody.2 See id. The original petition
includes two negligence counts against the Louisiana Correctional
Institute for Women and the Louisiana Department of Corrections.
See id. at 1-3. All parties agree that no defendants were cited or
served the original petition, which is consistent with the absence
of any proof of service in the record. See Rec. Docs. 1 at 1; 3-1
at 2; 7 at 2-3.
On June 8, 2017, Plaintiffs amended their petition, creating
on their own initiative the instant grounds for removal. See Rec.
Doc. 1-1 at 32. In addition to the two negligence claims alleged
in the original petition, Plaintiffs incorporated three new state
law claims, two claims under the Fourth and Eighth Amendments to
the United States Constitution, and three claims under 42 U.S.C.
§§ 1983, 1985, and 1986. See Rec. Doc. 1-1 at 32. The amended
petition also added the Louisiana Office of Risk Management as a
defendant. See id. at 33. The motion to amend Plaintiffs’ petition
was served on the Louisiana Department of Justice on June 27, 2017,
the Louisiana Correctional Institute for Women on June 21, 2017,
the Louisiana Department of Public Safety and Corrections on June
20, 2017, and the Louisiana Office of Risk Management on June 20,

2

A Louisiana state court declared Vallory Crockett legally deceased on October
16, 2015. See Rec. Doc. 1-1 at 15.

2

2017. See Rec. Docs. 1 at 2-3; 1-1 at 37-40; 7 at 3-6; 8 at 2. No
citation was served on any Defendant when Plaintiffs amended their
petition. See Rec. Doc. 8 at 2.
On Plaintiffs’ motion, the Louisiana state court entered
preliminary default against the Louisiana Correctional Institute
for Women, Louisiana Department of Corrections, Louisiana Office
of

Risk

Management,

and

Louisiana

Department

of

Justice

on

September 7, 2017. See Rec. Doc. 1-1 at 41. The default judgments
were served on the Louisiana Department of Justice on September
18, 2017, on the Office of Risk Management on September 19, 2017,
and on the Louisiana Correctional Institute for Women on September
26, 2017. See Rec. Doc. 1-1 at 47, 48, 60. Defendants answered
Plaintiffs’ supplemental petition on October 2, 2017. See id. at
49-59.
Defendants filed a notice of removal on October 5, 2017. See
Rec. Doc. 1. Defendants asserted that removal was proper on the
basis of federal question and supplemental jurisdiction. See id.
at 4. Defendants further maintained that removal was timely because
no defendant was ever properly served. See id. at 3-4. On November
3, 2017, Plaintiffs moved to remand the case. See Rec. Doc. 3.
“[A]ny civil action brought in a State court of which the
district courts of the United States have original jurisdiction,
may be removed by the defendant or defendants, to the district
court of the United States for the district and division embracing
3

the place where such action is pending.” 28 U.S.C. § 1441(a).
“[A]ll defendants who have been properly joined and served must
join

in

or

consent

to

the

removal

of

the

action.”

Id.

§ 1446(b)(2)(A). A “defendant’s time to remove is triggered by
simultaneous service of the summons and complaint, or receipt of
the complaint, through service or otherwise, after and apart from
service of the summons, but not by mere receipt of the complaint
unattended by any formal service.” Murphy Bros., Inc. v. Michetti
Pipe Stringing, Inc., 526 U.S. 344, 347-48 (1999). “[I]f the case
stated by the initial pleading is not removable,” a defendant’s
time to remove begins upon “receipt . . . , 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.” 28 U.S.C. § 1446(b)(3).
Here, the case stated in the original petition was not
removable
question.

because
See

there

Rec.

was

Doc.

neither

1-1

at

diversity
1-8.

nor

However,

a

federal

Defendants

subsequently received copies of Plaintiffs’ motion to amend their
petition, which clearly indicate that the case is removable because
of federal question jurisdiction. See Rec. Docs. 1 at 2-3; 1-1 at
32-40; 7 at 3-6; 8 at 2. If Defendants had been formally served
with process when they received the motion to amend, the thirtyday

removal

clock

would

have

started

to

run.

See

28

U.S.C.

§ 1446(b)(3); Morgan v. Huntington Ingalls, Inc., 879 F.3d 602,
4

612 (2018); Trahant v. Metro. Prop. & Cas. Ins. Co., No. 00-2579,
2000 WL 1473598, at *2 (E.D. La. Oct. 3, 2000). But if Defendants
had not been formally served with process when they received the
motion to amend, and provided no timely record evidence of waiver
of service, the removal clock would not have started to run because
“a defendant’s right to removal runs from the date on which it is
formally served with process.” Thompson v. Deutsche Bank Nat’l
Trust Co., 775 F.3d 298, 303 (5th Cir. 2014) (citing Murphy Bros.,
526 U.S. at 347-48). “A defendant has no obligation to appear in
court or defend an action before it is formally served with process
directing it to appear before that forum.” Id. (citing Murphy
Bros.,

526

U.S.

at

347-48).

Because

Defendants

received

Plaintiffs’ motion to amend in June 2017, and were therefore on
notice that the case was removable, the relevant question at this
juncture is when, if ever, Defendants were formally served with
process.
When assessing whether removal was timely, the questions of
if and when service occurred are questions of state law.3 See

3

Defendants argue that it would be improper to remand on the basis that
Defendants’ notice of removal was untimely because Plaintiffs did not raise
that argument in their motion to remand. See Rec. Doc. 7 at 14. But the Fifth
Circuit has confronted exactly this question and reached the opposite
conclusion. See Schexnayder v. Entergy Louisiana, Inc., 394 F.3d 280, 283-85
(5th Cir. 2004). As long as a motion for remand is filed within thirty days of
the notice of removal being filed, a district court can remand because of an
untimely notice of removal even if plaintiff does not advance that argument.
See id. Given that four state entities were on notice of Plaintiffs’ claims
under federal law and the United States constitution for over two months before
the notice of removal was filed, it is prudent for the Court to determine when
service was perfected.

5

Thompson, 775 F.3d at 304. In Louisiana, it is generally true that
“[c]itation and service thereof are essential in all civil actions
. . . [;] [w]ithout them all proceedings are absolutely null.” La.
Code. Civ. Proc. art. 1201. A citation is a document, signed by
the clerk of the issuing Louisiana state court, containing the
following information:
(1) The date of issuance; (2) The title of the cause;
(3) The name of the person to whom it is addressed; (4)
The title and location of the court issuing it; and (5)
A statement that the person cited must either comply
with the demand contained in the petition or make an
appearance, either by filing a pleading or otherwise, in
the court issuing the citation within the [specified]
delay . . . under penalty of default.
La. Code. Civ. Proc. Art. 1202. When served, the citation “must be
accompanied by a certified copy of the petition . . . .” Id.
Two statutes provide more specific guidance about service in
cases like this one where a plaintiff brings a tort claim against
the state or a state department. See La. Stat. §§ 13:5107, 39:1538.
Section 1538 requires that “process” “be served upon the head of
the department concerned, the office of risk management, and the
attorney general.” Section 5107 requires “citation and service” on
the Louisiana attorney general or director of the state department
being sued. See La. Stat. § 39:1538(A); Whitely v. State ex rel
Bd. of Supervisors, 2011-0040, pp. 5-13 (La. 7/1/11); 66 So. 3d
470, 473-79; Burnett v. James Constr. Grp., 2010-2608, pp. 2-5
(La. 7/1/11); 66 So. 3d 482, 483-85. Section 5107 also states that

6

a plaintiff must request service of citation on the attorney
general within ninety days of filing suit and the state department
being sued is not required to file responsive pleadings until it
has actually been served. See La. Stat. § 39:1538(A)(2), (D).
Plaintiffs never fully perfected service under Louisiana
state

law.

But

contrary

to

Defendants’

repeated

assertions,

Plaintiffs did not err by serving process on incorrect entities.
See Whitely, 66 So. 3d at 473-79. Plaintiffs served the motion to
amend their petition on the state departments being sued (the
Louisiana

Correctional

Institute

for

Women

and

the

Louisiana

Department of Safety and Corrections), the Louisiana attorney
general, and the Louisiana Office of Risk Management. See Rec.
Doc. 1-1 at 37-40. Instead, as Plaintiffs acknowledge in their
supplemental memorandum, the problem is that no defendant was
served a citation for the initial or amended petitions. See Rec.
Doc. 8 at 2. Absent service of citation, service was not perfected.
See La. Code. Civ. Proc. art. 1201; Scullin v. Prudential Ins.
Co., 421 So. 2d 470, 472 (La. Ct. App. 1982) (holding that service
had not been perfected because defendant was never served a
citation even though defendant had “actual knowledge” of the
lawsuit from service of “supplemental and amending petition” that
incorporated

the

original

petition).

But

for

above

legal

authorities, we would have considered the date of Defendants’

7

undisputed notice that suit was filed, yet unserved, as the start
date of the removal clock.
Therefore, the thirty day removal clock never started to run.
See Thompson, 775 F.3d at 304-05; In re Oil Spill, MDL No. 2179,
2012 WL 4753418, at *2 (E.D. La. Oct. 4, 2012) (holding that
thirty-day removal clock only starts when defendant has been
“served with the citation and the attached petition.” (emphasis
added)). As a result, Defendants’ notice of removal was timely.
See Thompson, 775 F.3d at 304-05 (holding that removal was timely
even though defendant filed notice of removal eight months after
complaint was filed, and six months after default judgment was
entered against defendant, because defendant was never properly
served).
Turning now to the issues raised in Plaintiffs’ motion to
remand, the question becomes whether the Court has subject matter
jurisdiction over the removed claims.4 “The district courts shall
have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331.

Therefore,

the

Court

has

original

federal

question

jurisdiction over Plaintiffs’ claims under the Fourth and Eighth
Amendments to the United States Constitution and under 42 U.S.C.
§§ 1983, 1985, and 1986. However, the Court does not have federal

4

All defendants joined in the notice of removal, see Rec. Doc. 1, so the
unanimity requirement is satisfied. See 28 U.S.C. § 1446(b)(2)(A).

8

question jurisdiction over the five state law claims in Plaintiffs’
amended

petition.

For

those

claims,

the

Court

must

rely

on

supplemental jurisdiction.
“[I]n any civil action of which the district courts have
original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims
in the action within such original jurisdiction that they form
part of the same case or controversy . . . .” 28 U.S.C. § 1367(a).
Claims are part of the same case or controversy when they “derive
from a common nucleus of operative fact” and a court “would
ordinarily be expected to try them all in one judicial proceeding
. . . .” United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).
Even

when

a

district

court

could

exercise

supplemental

jurisdiction over a state law claim, it “may decline to” do so
when “(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates . . . , (3) the district
court

has

dismissed

all

claims

over

which

it

has

original

jurisdiction, or (4) in exceptional circumstances, there are other
compelling

reasons

for

declining

jurisdiction.”

28

U.S.C.

§ 1367(c).
Plaintiffs’ state and federal claims all pertain to the
alleged death of Vallory Crockett while in state custody and
therefore the Court has supplemental jurisdiction over the state
law claims. See, e.g., Hall v. City of Alexandria, 111 F. Supp. 2d
9

785, 786-88 (W.D. La. 2000). The state negligence claims and
federal civil rights and constitutional claims involve common
issues of fact that can and should be adjudicated at the same time.
Plaintiffs’ arguments to the contrary are unavailing.5 Because the
state

law

claims

fall

within

the

Court’s

supplemental

jurisdiction, they should not be severed and remanded. Cf. 28
U.S.C. § 1441(c). Nor does the mere existence of Louisiana’s forum
non

conveniens

statute

prevent

this

Court

from

exercising

jurisdiction consistent with Congressional mandate and the United
States Constitution. See La. Code Civ. Proc. art. 123. Nor does
the Eleventh Amendment pose a barrier to the Court’s jurisdiction
when the state defendants join in removal. See Lapides v. Bd. of
Regents, 535 U.S. 613, 623-24 (2002). Finally, Plaintiffs’ state
law claims do not predominate because the federal civil rights and
constitutional claims are substantial, not “only an appendage[;]”
the state negligence claims do not “substantially predominate,
whether in terms of proof, of the scope of the issues raised, or
of the comprehensiveness of the remedy sought . . . .” United
Disaster Response, LLC v. Omni Pinnacle, LLC, 569 F. Supp. 2d 658,
666-67 (E.D. La. 2008) (quoting Gibbs, 383 U.S. at 726-27).
New Orleans, Louisiana, this 12th day of March, 2018.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
5

Plaintiffs’ passing request for Rule 11 sanctions is formally and substantively
deficient. See Fed. R. Civ. P. 11.

10