Elvir et al v. Trinity Marine Products, Inc. et al

Filing 18

ORDER: Plaintiffs shall have seven (7) days from the date of this Order to file a motion to substitute the First Supplemental and Amending Complaint with a proposed pleading that is a comprehensive amended complaint that includes all of Plaintiffs n umbered allegations, as revised, supplemented, and/or amended, and adequately alleges the citizenship of all parties, which will become the operative complaint in this matter without reference to any other document in the record. Brief due by 5/23/2017. Signed by Magistrate Judge Erin Wilder-Doomes on 05/16/2017. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

NELIN XIOMARA GONZALEZ
ELVIR, ET AL.

CIVIL ACTION
NO. 16-814-JJB-EWD

VERSUS
TRINITY MARINE
PRODUCTS, INC. ET AL.

ORDER
Before the Court is an Unopposed Motion for Leave to File First Amending Complaint
Joining Additional Defendants (the “Motion”), filed by plaintiffs Nelin Xiomara Gonzalez Elvir
and Estevan Lopez Coello (collectively, “Plaintiffs”).1 On or about October 28, 2016, Plaintiffs
filed a Petition for Damages in the 18th Judicial District Court for the Parish of West Baton Rouge,
State of Louisiana, against Trinity Marine Products, Inc. (“Trinity Marine”), the Lincoln Electric
Company (“Lincoln Electric”), ABC Insurance Company and DEF Insurance Company for the
personal injuries and death of the Plaintiffs’ son from an incident involving equipment
manufactured by Trinity Marine and Lincoln Electric.2 Lincoln Electric removed the matter to
this Court on December 2, 2016, asserting that the Court has diversity jurisdiction pursuant to 28
U.S.C. § 1332.3

Alternatively, Lincoln Electric asserted that the Court has subject matter

jurisdiction under 28 U.S.C. § 1331, federal question jurisdiction.4

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R. Doc. 13.
R. Doc. 1-1.
3
R. Doc. 1 at ¶ 7.
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R. Doc. 1 at ¶¶ 20-23.
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On March 17, 2017, Plaintiffs filed the instant Motion, seeking to amend the state court
Petition to add Navigators Insurance Company, Liberty Mutual Insurance Company, and Allianz
Global Risks US Insurance Company as defendants in this case.5 The First Supplemental and
Amending Complaint6 contains the following allegations regarding citizenship of the parties:
Made Defendants herein are:
TRINITY MARINE PRODUCTS, INC. (“TRINITY MARINE”),
a foreign corporation admitted to do and, on information and belief,
actually doing business within the State of Louisiana and the Parish
of West Baton Rouge, and having its principal business
establishment in Louisiana in the Parish of St. Tammany;
THE LINCOLN ELECTRIC COMPANY, a foreign corporation
admitted to do and, on information and belief, actually doing
business within the State of Louisiana and the Parish of West Baton
Rouge, and having its principal business establishment in Louisiana
in the Parish of East Baton Rouge;
NAVIGATORS INSURANCE COMPANY (“NAVIGATORS”),
a foreign insurer, licensed and authorized to do business in this
State, who, at all times material hereto, provided commercial
general liability insurance coverage to defendant TRINITY
MARINE for all damages complained of herein by Plaintiffs;
LIBERTY MUTUAL INSURANCE COMPANY (“LIBERTY
MUTUAL”), a foreign insurer, licensed and authorized to do
business in this State, who, at all times material hereto, provided
excess bumbershoot insurance coverage to defendant TRINITY
MARINE for all damages complained of herein by Plaintiffs; and
ALLIANZ GLOBAL RISKS US INSURANCE COMPANY
(“ALLIANZ”), a foreign insurer, licensed and authorized to do
business in this State, who, at all times material hereto, provided
excess liability insurance coverage to defendant THE LINCOLN

5
6

R. Doc. 13 at 1-2.
R. Doc. 13-2.
2

ELECTRIC COMPANY for all damages complained of herein by
Plaintiffs.7
Proper information regarding the citizenship of all parties is necessary to establish the
Court’s diversity jurisdiction, as well as to make the determination required under 28 U.S.C. §
1447(e) when a plaintiff seeks to join an additional defendant after removal. Citizenship has not
been adequately alleged in the Motion. As an initial matter, there is no allegation regarding the
citizenship of plaintiffs Nelin Xiomara Gonzalez Elvir and Estevan Lopez Coello. The Motion
merely alleges that Elvir and Coello are “majors and residents of the State of Tegucigalpa, County
of Honduras.”8 The Fifth Circuit has explained that, “For 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).
Additionally, the citizenship of Trinity Marine, Lincoln Electric, Navigators Insurance
Company, Liberty Mutual Insurance Company, and Allianz Global Risks US Insurance Company
has not been properly alleged in the Motion. The Fifth Circuit has held that, “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.”). The Fifth Circuit
has also held that for purposes of diversity, the citizenship of a limited liability company is
determined by considering the citizenship of all its members. Harvey v. Grey Wolf Drilling Co.,
542 F.3d 1077, 1080 (5th Cir. 2008). Thus, to properly allege the citizenship of a limited liability
company, a party must identify each of the members of the limited liability company, and the

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8

R. Doc. 13-2 at 1-2.
R. Doc. 13-2 at 1.
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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 a limited liability company which is also a limited
liability company. See, Turner Bros. Crane and Rigging, LLC v. Kingboard Chemical Holding
Ltd., 2007 WL 2848154, at *4 (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 [so] can result in dismissal for want of
jurisdiction.”) (citations omitted).
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs shall have seven (7) days from the date of this
Order to file a motion to substitute the First Supplemental and Amending Complaint9 with a
proposed pleading that is a comprehensive amended complaint that includes all of Plaintiffs’
numbered allegations, as revised, supplemented, and/or amended, and adequately alleges the
citizenship of all parties, which will become the operative complaint in this matter without
reference to any other document in the record.
Signed in Baton Rouge, Louisiana, on May 16, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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R. Doc. 13-2.
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