Tilson et al v. DISA, INC. et al

Filing 14

ORDER: Defendants shall have seven (7) days to file a Motion to Substitute the 13 Amended Joint Notice of Removal and Improper Joinder with an Amended Notice of Removal that is a comprehensive pleading as listed. Signed by Magistrate Judge Erin Wilder-Doomes on 5/9/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

EMILE TILSON, JR., ET AL.

CIVIL ACTION

VERSUS

NO. 17-240-JJB-EWD

DISA, INC., ET AL.

ORDER
Before the Court is an Amended Joint Notice of Removal and Improper Joinder,1 filed by
defendants DISA, Inc. and DISA Global Solutions, Inc. (“DISA”), with the consent of defendants
Psychemedics Corporation (“Psychemedics”) and Clinical Pathology Laboratories, Inc. (“CPL”)
(collectively, “Defendants”). Defendants removed the matter to this Court on April 19, 2017,
asserting diversity jurisdiction under 28 U.S.C. § 1332(a).2 On April 27, 2017, Defendants filed a
Supplement to Joint Notice of Removal and Improper Joinder, seeking to provide additional
information that was not included in the Notice of Removal.3 On May 2, 2017, this Court issued
an Order giving Defendants seven days to file a Motion to Strike the Supplement to Joint Notice
of Removal and Improper Joinder4 and to file a comprehensive Amended Notice of Removal.5
In accordance with this Court’s May 2, 2017 Order, Defendants filed a Motion to Strike
Supplement to Joint Notice of Removal and Improper Joinder6 and an Amended Joint Notice of
Removal and Improper Joinder (“Amended Notice of Removal”)7 on May 8, 2017. The Amended

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R. Doc. 13.
R. Doc. 1 at 1.
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R. Doc. 5.
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R. Doc. 5.
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R. Doc. 10.
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R. Doc. 12.
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R. Doc. 13.
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Notice of Removal asserts that this Court has diversity jurisdiction under § 1332(a)8 and contains
the following allegations regarding the citizenship of the parties:
2. DISA is a Delaware corporation with its principal place of
business in Harris County, Texas, and is therefore a citizen of the
states of Delaware and/or Texas. Psychemedics is a Delaware
corporation with its principal place of business in Acton,
Massachusetts, and is therefore a citizen of the states of Delaware
and/or Massachusetts. CPL is incorporated in Texas with its
principal place of business in Austin, Texas, and is therefore a
citizen of Texas.
3. In their First Amended Petition, Plaintiffs stated that Dr. Banks,
“individually and as ‘A Medical Corporation’ was inadvertently
named as the designated Medical Review Office who reviewed Mr.
Tilson’s urine test . . . [and Dr. Banks] was not the Medical Review
Officer and therefore any and all references to and all allegations
made against [Dr. Banks] are hereby removed, deleted and retracted
from Plaintiffs’ original Petition for Damages.” [First Amended
Petition at 1.] Plaintiffs did not add Dr. Banks back in to their
Second Amended Petition. [See gen’lly Second Amended Petition.]
Dr. Banks is, therefore, no longer a party to this litigation.
4. To the extent Dr. Banks remains a party to this litigation,
however, his joinder is improper and his alleged citizenship should
be disregarded for purposes of establishing diversity jurisdiction.
Dr. Banks was not the Medical Review Officer who reviewed Mr.
Tilson’s drug test result and played no part in the underlying facts
of this case. Attached to this Amended Joint Notice of Removal and
Improper Joinder as Exhibit 1 is the Declaration of Evelyn Ward,
Director of University Services (“University”), the entity that
employed the Medical Review Officer (“MRO”) who reviewed Mr.
Tilson’s positive drug test result at issue in this litigation. In her
Declaration, Ward states that the MRO who reviewed Mr. Tilson’s
positive drug test result was Dr. Jerome Cooper, not Dr. Banks, and
states further that University is a limited liability corporation
incorporated in the State of Delaware with its principal and only
place of business in Pennsylvania. (Ex. 1 at ¶¶ 4, 10-11.)
5. In addition, the Drug Test Result Certificate pertaining to the drug
test at issue in this litigation provides that the specimen collection
facility (where Mr. Tilson’s urine sample was collected) was Turner
Industries Group, LLC, the analyzing laboratory (where Plaintiff’s
urine sample was tested) was Clinical Reference Laboratory, and the
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R. Doc. 13.
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MRO was University Services. (9/29/16 DISA Drug Test Result
Certificate, attached as Exhibit 2.) Therefore, like Dr. Banks, even
if CPL was a non-diverse party, its joinder would be improper as it
did not conduct the analysis of Mr. Tilson’s urine sample and was
in no way involved in the underlying facts of this litigation. (Ex. 2.)
In this context, removal is proper as there is complete diversity
among the remaining Defendants, and the alleged citizenship of
improperly-joined parties may be disregarded.9
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. §
1441 regarding whether the case was properly removed to this Court. Citizenship has not been
adequately alleged in the Amended Notice of Removal.

While the citizenship of DISA,

Psychemedics, and CPL has been adequately alleged,10 there is no allegation regarding the
citizenship of Dr. Banks. To the extent that Dr. Banks is sued in his individual capacity, 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, to the extent Dr. Banks is sued in his capacity as “‘A Medical Corporation,’ and/or
a shareholder of the Medical Corporation,”11 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.”).
Accordingly,

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R. Doc. 13 at 2-3.
For purposes of diversity, “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.”).
11
See, R. Doc. 1-2 at 6.
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IT IS HEREBY ORDERED that Defendants shall have seven (7) days to file a Motion to
Substitute the Amended Joint Notice of Removal and Improper Joinder12 with an Amended Notice
of Removal that is a comprehensive pleading that includes all of Defendants’ numbered
allegations, as revised, supplemented, and/or amended, and adequately alleges the citizenship of
all parties, which will become the operative notice of removal in this matter without reference to
any other document in the record.
Signed in Baton Rouge, Louisiana, on May 9, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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R. Doc. 13.
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