Sun Industries, LLC v. Phoenix Insurance Company et al

Filing 22

ORDER: Motion Hearing set for 8/29/2016 at 02:00 PM in Courtroom 5 before Magistrate Judge Erin Wilder-Doomes re: 2 Motion to Remand. Signed by Magistrate Judge Erin Wilder-Doomes on 8/11/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SUN INDUSTRIES, LLC

CIVIL ACTION

VERSUS

NO. 16-172-BAJ-EWD

PHOENIX INSURANCE
COMPANY, ET AL.
ORDER
Before the Court is a Motion to Remand, filed by plaintiff Sun Industries, LLC (“Sun
Industries”). (R. Doc. 2). The Motion is opposed. (R. Doc. 6).
The issue before the Court is whether third party defendants can remove a third party
demand to federal court under 28 U.S.C. § 1441(a). Sun Industries asserts that this case must be
remanded because it was removed by third party defendants to the original state court proceeding1
and only original defendants are authorized to remove a case under § 1441(a). (R. Doc. 2). The
Third Party Defendants2 assert that third party removal is allowed under § 1441(a) and the
exception set forth in Johns, Pendleton & Assocs. v. Miranda, Warwick & Milazzo, 2002 WL
31001838 (E.D. La. Sept. 4, 2002), because all of the claims by and against Sun Industries in the
Consolidated State Proceedings were dismissed prior to removal. (R. Doc. 6). Sun Industries
chose not to file a reply memorandum and therefore, has not addressed these allegations.
Since Amerisure did not submit any documentation to show that all of the claims in the
Consolidated State Proceedings had been dismissed at the time of removal except for Sun

1

The underlying state court proceeding referred to by Sun Industries is Bernhard Mechanical Contractors, Inc., et al.
v. Mapp Construction, LLC, et al., 19th JDC, Parish of East Baton Rouge, Louisiana, Docket No. 615,513, Section
26. On May 13, 2014, Bernhard was consolidated with another case, Mapp Construction, LLC v. Chenevert Architects
et al., 19th JDC, Parish of East Baton Rouge, Louisiana, Docket No. 615,354, Section 25. (R. Doc. 19-10 at 2). The
two cases are referred to collectively as the “Consolidated State Proceedings.”
2
The Third Party Defendants in this case are Sun Industries’ insurers, Amerisure Insurance Company (“Amerisure”),
The Phoenix Insurance Company (“Phoenix”), and Travelers Property Casualty Company of America (“TPC”).

Industries’ third party demand against the Third Party Defendants, the Court ordered Amerisure
to supplement the record to include a copy of “all records and proceedings” that have been filed in
the Consolidated State Proceedings. (R. Doc. 18). Amerisure supplemented the record, but only
provided copies of pleadings by and against Sun Industries. (See R. Docs. 19 through 19-22).
After carefully reviewing the documents submitted by Amerisure, it is unclear to the Court
whether there were any claims still pending in the Consolidated State Proceedings at the time of
removal, other than the third party demand currently before the Court.3
Based upon the foregoing,
IT IS ORDERED that the parties shall appear and present ORAL ARGUMENT on Sun
Industries’ Motion to Remand (R. Doc. 2) on August 29, 2016 at 2:00 p.m. in Courtroom 5. The
parties should be prepared to discuss the procedural posture of all claims asserted by and against
all parties in the Consolidated State Proceedings. The parties should also be prepared to discuss
the impact of the rulings in Johns, Pendleton & Assocs. v. Miranda, Warwick & Milazzo, 2002
WL 31001838 (E.D. La. Sept. 4, 2002) and Eckert v. Administrators of the Tulane Educational
Fund, 2016 WL 158919 (E.D. La. Jan. 14, 2016).
Signed in Baton Rouge, Louisiana, on August 11, 2016.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

For instance, Amerisure asserts that, “The Pretrial Order filed in this matter on December 16, 2015 conveys the
claims that existed at that time pursuant to each of the then existing litigants and specifically describes the claims
among Sun, Mapp and Travelers.” (R. Doc. 19 at 5). However, the Pretrial Order submitted by Amerisure shows that
as of December 16, 2016, claims were still pending by and between Sun Industries, Arena Fire Protection, Inc. and
Mapp Construction. (R. Doc. 19-14). Amerisure did not submit any documentation to show that the claims of Arena
Fire Protection, Inc. have been dismissed. Similarly, Amerisure submitted a Motion for Entry of Consent Judgment,
filed by Elliott Electric Supply, Inc., which asserts that Elliott and Sun Industries “have resolved all claims between
them and request that the attached Consent Judgment be entered by the Court . . . .” (R. Doc. 19-9). Amerisure,
however, did not submit any documentation to show that the state court entered the requested consent judgment.
3

2