Mathes v. Pinnacle Entertainment, Inc.

Filing 28

ORDER denying 24 Motion to Remand (certified copy mailed to appropriate judicial district court) 24 Motion to Withdraw and Motion to Dismiss. If Plaintiff seeks to withdraw the Supplemental and Amending Petition for Damages Plaintiff shall fi le a motion to withdraw the Supplemental and Amending Petition for Damages within seven (7) days of the date of this Order. If Plaintiff seeks voluntary dismissal of this case under Federal Rule of Civil Procedure 41(a), Plaintiff shall file a motion for voluntary dismissal within seven (7) days of the date of this Order. Signed by Magistrate Judge Erin Wilder-Doomes on 04/21/2017. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ROSIE MATHES

CIVIL ACTION

VERSUS

NO. 16-538-BAJ-EWD

PINNACLE ENTERTAINMENT, INC.

ORDER
Before the Court is a Motion for Remand, or Alternatively Motion to Withdraw
Supplemental and Amending Petition, or Alternatively Motion for Voluntary Dismissal of Cause
(the “Motion”), filed by plaintiff Rosie Mathes.1 The Motion is opposed.2 For the reasons that
follow, the Motion is DENIED without prejudice.
I.

Background
On or about July 18, 2016, Plaintiff filed a Petition for Damages in the 19th Judicial District

Court for the Parish of East Baton Rouge, Louisiana, against Pinnacle Entertainment, Inc. d/b/a
L’Auberge Casino & Hotel Baton Rouge (“Pinnacle”), Pinnacle’s alleged insurer, ABC Insurance
Company, and Jane Doe, a Pinnacle employee, seeking damages for an alleged slip and fall that
occurred at L’Auberge Casino and Hotel in Baton Rouge, Louisiana on March 16, 2016.3 On
August 10, 2016, Pinnacle removed the matter to this Court, alleging diversity jurisdiction
pursuant to 28 U.S.C. § 1332.4 Pinnacle filed an Answer to the state court Petition on August 29,
2016, denying the allegations in the Petition.5

1

R. Doc. 24.
R. Doc. 26.
3
R. Doc. 1-2.
4
R. Doc. 1.
5
R. Doc. 3.
2

On January 31, 2017, Plaintiff filed a Supplemental and Amending Petition for Damages,
seeking to name two additional defendants, PNK (Baton Rouge) Partnership (“PNK”) and its
insurer, Zurich American Insurance Company (“Zurich”), and to correctly identify defendant “Jane
Doe” as Cionne Stewart.6 However, the Supplemental and Amending Petition for Damages was
neither comprehensive nor did it adequately allege the citizenship of the parties. As such, this
Court issued an Order on February 10, 2017, requiring Plaintiff to file a motion to substitute the
Supplemental and Amending Petition for Damages7 with a comprehensive proposed pleading that
properly sets forth the citizenship of all parties.8 Plaintiff was given until March 31, 2017 in which
to file the motion to substitute.9
On March 17, 2017, Plaintiff filed the instant Motion, asking the Court to remand the matter
to state court for lack of subject matter jurisdiction because Cionne Stewart is a non-diverse
defendant.10 Alternatively, Plaintiff asserts that because the Court has not yet granted her request
to add PNK, Stewart, or Zurich as defendants in this matter, the Court should allow Plaintiff to
voluntarily withdraw her Supplemental and Amending Petition for Damages without prejudice.11
Plaintiff asserts that Pinnacle has unequivocally stated that it is not a proper party to this litigation,
such that if Plaintiff is allowed to withdraw her Supplemental and Amending Petition for Damages,
Pinnacle can be dismissed without prejudice and Plaintiff can proceed against the correct parties
in state court.12 Alternatively, Plaintiff asserts that the Court should allow her to file a notice of
voluntary dismissal of suit under Fed. R. Civ. P. 41(a)(1)(A)(i) or (a)(2).13 Although there is a

6

R. Doc. 10 at 1-2.
R. Doc. 10.
8
R. Doc. 16.
9
R. Doc. 16 at 2.
10
R. Doc. 24 at 1.
11
R. Doc. 24-1 at 9.
12
Id. at 9-10.
13
Id. at 10.
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pending Motion for Summary Judgment filed by PNK,14 Plaintiff asserts that motion should be
stricken from the record because PNK is not yet a party to this action.15 Plaintiff further claims
that she should be allowed to dismiss Pinnacle from this suit “and proceed under the prophylactic
state court suit.”16
In opposition, Pinnacle asserts that the Motion to Remand should be denied as premature
because Cionne Stewart, the alleged non-diverse defendant, is not yet a party to this litigation.17
Pinnacle further argues that Stewart’s inclusion in this case as a defendant would constitute
improper joinder because Plaintiff’s allegations that Stewart was negligent in failing to place a
cautionary sign to warn of a wet floor are contradicted by photographic evidence, in which a “wet
floor” sign is clearly visible where the alleged fall occurred.18 Pinnacle further alleges that Stewart
was improperly joined under the factors set forth in Hensgens v. Deere & Co., 833 F.2d 1179,
1182 (5th Cir. 1987), because the purpose of the amendment is to defeat federal jurisdiction,
Plaintiff has been dilatory in seeking amendment, and Plaintiff will not be significantly prejudiced
if amendment is not allowed because there is no reasonable basis for Plaintiff to expect recovery
in state court.19
II.

Law and Analysis
A defendant may remove “any civil action brought in a State court of which the district

courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). The removal statute,
28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be
resolved in favor of remand. Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th

14

R. Doc. 12.
R. Doc. 24-1 at 10.
16
Id.
17
R. Doc. 26 at 2.
18
R. Doc. 26 at 5 (citing R. Doc. 26-1).
19
R. Doc. 26 at 3-7.
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Cir. 2007). The removing party has the burden of proving federal diversity jurisdiction. Garcia
v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir. 2003). Remand is proper if at any time
the court lacks subject matter jurisdiction. See, 28 U.S.C. § 1447(c).
Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given
when justice so requires.” Fed. R. Civ. P. 15(a). The Fifth Circuit has strictly followed this rule,
stating that “leave to amend should be granted liberally.” Robertson v. Plano City of Texas, 70
F.3d 21, 22 (5th Cir. 1995). However, when an amendment after removal from state court would
destroy subject matter jurisdiction, 28 U.S.C. § 1447(e) applies. Section 1447(e) provides, “If after
removal the plaintiff seeks to join additional defendants whose joinder would destroy subject
matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State
court.” 28 U.S.C. § 1447(e).
In the instant case, Plaintiff sought to amend her state court Petition to add two new
defendants, PNK and Zurich, and to correctly identify the original “Jane Doe” defendant as Cionne
Stewart, an allegedly non-diverse defendant.20 However, because Plaintiff failed to properly allege
the citizenship of PNK, Zurich, and Stewart in the Supplemental and Amending Petition for
Damages,21 Plaintiff was ordered to file a motion to substitute the Supplemental and Amending
Petition with a comprehensive proposed pleading that properly alleges the citizenship of the parties
by March 31, 2017.22 In lieu of filing a motion to substitute, Plaintiff filed the instant motion,
seeking remand or, alternatively, to withdraw her Supplemental and Amending Petition for
Damages or, alternatively, to voluntarily dismiss the case.23 The Court finds, however, that the
allegations in the Motion, and the relief sought therein, are inherently contradictory.

20

R. Doc. 10.
Id. at 1-2.
22
R. Doc. 16.
23
R. Doc. 24.
21

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As an initial matter, this Court has not yet allowed Plaintiff to file the Supplemental and
Amending Petition for Damages. Thus, as of the date of this Order, PNK, Zurich, and Stewart are
not parties to this litigation. Despite acknowledging this fact in the Motion,24 Plaintiff seeks
remand based on the fact that Stewart is a non-diverse defendant.25 As such, the Court finds that
Plaintiff’s Motion to Remand is premature, as Stewart is not yet a party to this litigation and there
is complete diversity of citizenship between the original parties to this action.26
In the alternative, Plaintiff seeks to withdraw her Supplemental and Amending Petition for
Damages. However, if the Court were to grant the Motion to Withdraw, there would be no basis
for Plaintiff’s Motion to Remand because there is complete diversity between the original parties
to this action.27 Further, if the Court were to grant the Motion for Voluntary Dismissal, the pending
motions, including Plaintiff’s Motion to Remand and Motion to Withdraw Supplemental and
Amending Petition, would be terminated.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Remand, or Alternatively Motion
to Withdraw Supplemental and Amending Petition, or Alternatively Motion for Voluntary
Dismissal of Cause28 is DENIED without prejudice.
IT IS FURTHER ORDERED that if Plaintiff seeks to move forward with amending her
state court Petition for Damages,29 Plaintiff shall comply with the Court’s February 10, 2017
Order30 by filing a motion to substitute the Supplemental and Amending Petition for Damages31

24

R. Doc. 24-1 at 9.
Id. at 3-8.
26
R. Doc. 1 at 2.
27
Id.
28
R. Doc. 24.
29
R. Doc. 1-2.
30
R. Doc. 16.
31
R. Doc. 10.
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with a comprehensive proposed pleading that properly alleges the citizenship of all parties.
Plaintiff shall file the motion to substitute within seven (7) days of the date of this Order.
IT IS FURTHER ORDERED that if Plaintiff seeks to withdraw the Supplemental and
Amending Petition for Damages,32 Plaintiff shall file a motion to withdraw the Supplemental and
Amending Petition for Damages within seven (7) days of the date of this Order. If Plaintiff files a
motion to withdraw the Supplemental and Amending Petition, the citizenship of Cionne Stewart
cannot be the basis for filing a motion to remand for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that if Plaintiff seeks voluntary dismissal of this case under
Federal Rule of Civil Procedure 41(a), Plaintiff shall file a motion for voluntary dismissal within
seven (7) days of the date of this Order and shall specify whether Pinnacle consents to the
dismissal.
Signed in Baton Rouge, Louisiana, on April 21, 2017 .

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

32

R. Doc. 10.
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