Coleman v. Anco Insulations, Inc. et al

Filing 59

ORDER: Movants shall file a Motion to Substitute the Proposed Pleading attached to 57 Joint Rule 25 (a)(1) MOTION for Substitution of Parties, AND MOTION for Leave to File Plaintiffs First Supplemental and Amended Complaint, with a proposed plea ding that properly sets forth the citizenship of the parties. Movants shall have seven (7) days from the date of this Order to file the motion to substitute without further leave of Court. Signed by Magistrate Judge Erin Wilder-Doomes on 2/10/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WILLIAM D. COLEMAN
CIVIL ACTION
VERSUS
NO. 15-821-BAJ-EWD
ANCO INSULATIONS, INC. ET AL.
ORDER
Before the court is Plaintiffs’ Joint Rule 25(a)(1) Motion for Substitution of Parties Plaintiff
and Motion for Leave to File Plaintiffs’ First Supplemental and Amended Complaint (the “Motion
to Substitute and Amend”).1 Per the Motion to Substitute and Amend, Pamela Coleman and Jody
Coleman Nolte (collectively, “Movants”) seek to be substituted in William Coleman’s stead as
plaintiffs and to “formally allege causes of action sounding in survival and wrongful death.” 2
Movants assert that William D. Coleman, the named plaintiff in this suit, died from malignant
mesothelioma on November 8, 2016, and that Movants are Mr. Coleman’s statutory heirs and the
proper persons to pursue survival and wrongful death claims.3
The case was removed from state district court pursuant to 28 U.S.C. § 1332 based upon
complete diversity of citizenship.4 Per Movant’s proposed First Supplemental and Amended
Complaint, Movants continue to assert this court has subject matter jurisdiction pursuant to 28
U.S.C. § 1332.5
On February 1, 2017, Movants filed the instant Motion to Substitute and Amend. However,
Movants do not state whether defendants consent to or oppose the proposed amendment.
Moreover, the proposed First Supplemental and Amended Complaint does not allege the

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R. Doc. 57.
R. Doc. 57, p. 1.
3
R. Doc. 57-1, p. 3.
4
R. Doc. 1.
5
R. Doc. 57-6, ¶ 4.
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citizenship of the parties. The proposed First Supplemental and Amended Complaint includes no
allegations regarding the citizenship of Pamela Coleman and Jody Coleman Nolte. The Fifth
Circuit has explained that, “[f]or diversity purposes, citizenship means domicile; mere residence
in the State is not sufficient.” Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (citations
omitted). Further, Movants’ allegation that the defendants are “all foreign corporations” is
insufficient to establish diversity jurisdiction.

A corporation is a citizen of its place of

incorporation and its principal place of business. 28 U.S.C. § 1332(c). See also, Getty Oil, Div.
of Texaco v. Ins. Co. of North America, 841 F.2d 1254, 1259 (5th Cir. 1988) ) (In diversity cases
involving corporations, “allegations of citizenship must set forth the state of incorporation as well
as the principal place of business of each corporation.”).6
Accordingly,

In the Notice of Removal, Pilkington North America, Inc. alleges that it is “a Delaware corporation with its principal
place of business in Ohio.” R. Doc. 1, p. 3. In its Corporate Disclosure Statement, Liberty Mutual Insurance Company
states that it “is a company organized under the laws of the State of Massachusetts and for federal court
jurisdiction/diversity of citizenship disclosure purposes, the principal place of business is 175 Berkeley Street, Boston,
Massachusetts.” R. Doc. 3, p. 1. In its corporate disclosure statement, Travelers Casualty and Surety Company alleges
that it is “an insurance company incorporated under the laws of the State of Connecticut with its principal place of
business in Connecticut.” R. Doc. 5, ¶ 2. “Safety National Casualty Corporation is an insurance company organized
under the laws of the State of Missouri, and for Federal court jurisdiction/diversity of citizenship disclosure purposes,
its principal place of business is in the State of Missouri.” R. Doc. 6, p. 1. Bedivere Insurance Company does not
assert its citizenship in its Corporate Disclosure Statement. R. Doc. 13. The Notice of Removal only alleges that
Bedivere Insurance Company “is a foreign insurer” and a “Pennsylvania company.” R. Doc. 1, p. 3. As explained
herein, an allegation that Bedivere Insurance Company is a foreign insurer or Pennsylvania company is not a sufficient
allegation for purposes of 28 U.S.C. § 1332, and Movants must instead allege Bedivere Insurance Company’s place
of incorporation and principal place of business (assuming that Bedivere Insurance Company is a corporation). In the
event Bedivere Insurance Company is an unincorporated association, the citizenship of such association is determined
by considering the citizenship of all its members. See, Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th
Cir. 2008). To properly allege the citizenship of an unincorporated association, a party must identify each of the
members of the association and the citizenship of each member in accordance with the requirements of 28 U.S.C. §
1332(a) and (c). The same requirement applies to any member of the association which is also an unincorporated
association. See, Turner Bros. Crane and Rigging, LLCV v. Kingboard Chemical Holdings, Ltd., 2007 WL 2848154,
at & 4-5 (M.D. La. Sept. 24, 2007) (“when partners or members are themselves entities or associations, the citizenship
must be traced through however many layers of members or partners there may be, and failure to do [sic] can result
in dismissal for want of jurisdiction.”) (quotation and citations omitted).
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IT IS HEREBY ORDERED that Movants file a motion to substitute the proposed
pleading (R. Doc. 57-6) with a proposed pleading that properly sets forth the citizenship of the
parties.
IT IS FURTHER ORDERED that Movants shall state in their motion to substitute
whether defendants consent to the filing of the First Supplemental and Amended Complaint.
Movants shall have seven (7) days from the date of this Order to file the motion to substitute
without further leave of Court.
Signed in Baton Rouge, Louisiana, on February 10, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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