Russell et al v. Haghaghi et al

Filing 23

ORDER: Plaintiff's 22 Motion to Substitute Previously Filed Document is DENIED without prejudice to re-filing a motion to substitute the proposed First Supplemental and Amending Petition for Damages with a proposed pleading that is a comprehensive amended complaint as written. Amended Pleadings within 7 days of the date of this Order. Signed by Magistrate Judge Erin Wilder-Doomes on 2/8/2018. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DONALD RUSSELL, JR., ET AL.

CIVIL ACTION

VERSUS

NO. 17-608-BAJ-EWD

DAVID HAGHAGHI, ET AL.

ORDER
Before the Court is a Motion to Substitute Previously Flild Document No. 20.1 With the
Attached Proposed Pleading, filed by plaintiffs Donald Russell, Jr. and Chaise Thomas
(collectively, “Plaintiffs”).1 On or about August 1, 2017, Plaintiffs filed a Petition for Damages in
the Twenty-Third Judicial District Court for the Parish of Ascension, State of Louisiana, against
David Haghaghi, Hogwild, LLC and Arch Insurance Company (collectively, “Defendants”),
alleging that Plaintiffs suffered damages as a result of a motor vehicle accident that occurred on or
about January 20, 2017.2 Defendants removed the matter to this Court on September 1, 2017 on
the basis of diversity jurisdiction, 28 U.S.C. § 1332.3 On September 14, 2017, Haghaghi, Hog
Wild Trucking Company, Inc. and Arch Insurance Company filed an Amended Notice of
Removal, as ordered by the Court,4 asserting that Hog Wild Trucking Company, Inc. was
incorrectly identified as Hogwild, LLC in the state court Petition.5
On January 30, 2018, Plaintiffs filed a Motion and Order for Leave to File First
Supplemental and Amending Petition for Damages, seeking to amend their state court Petition6
1

R. Doc. 22.
R. Doc. 1-4 at p. 4.
3
R. Doc. 1 at ¶ 5.
4
See, R. Docs. 2 and 4.
5
R. Doc. 6 at p. 1, n. 1.
6
R. Doc. 1-4.
2

seeking to name Hog Wild Trucking, Inc. as a defendant in place of Hogwild, LLC. 7 However,
because the proposed First Supplemental and Amending Petition for Damages 8 was not a
comprehensive pleading, Plaintiffs were ordered to file a motion to substitute.9 On February 7,
2018, Plaintiffs filed the instant Motion to Substitute, as ordered by the Court.10 However, the
proposed First Supplemental and Amending Petition for Damages11 fails to adequately allege the
citizenship of the parties. The proposed First Supplemental and Amending Petition for Damages
contains the following allegations regarding citizenship:
The petition of DONALD RUSSELL, JR. and CHAISE
THOMAS, both persons of the full age of majority, and both
domiciled in the Parish of Ascension, State of Louisiana, through
their undersigned counsel, respectfully represent that:
I.
By amending and supplementing Petitioners’ original Petition
for Damages, to properly name the defendant “HOG WILD
TRUCKING, INC.” erroneously named in Petitioners’ original
Petition as “HOGWILD, LLC” in every instance where these
names appear.
1.
Made defendants herein are the following:
a) DAVID HAGHAGHI, a person of the full age of majority and
resident of the state of Arizona, whose permanent mailing address
is declared to be 117 Madison 3180, Huntsville, Arizona, 727408728;
b) HOG WILD TRUCKING, INC., a corporation authorized to do
and doing business in the State of Arkansas, who can be served
through their agent for service of process, Richard Long, 2905 B
East Nettleton, Jonesboro, Arizona 72401; and,
c) ARCH INSURANCE COMPANY, a foreign insurer, authorized
to do and doing business in the State of Louisiana, who may be

7

R. Doc. 20; R. Doc. 20-1 at ¶ I.
R. Doc. 20-1.
9
R. Doc. 21.
10
R. Doc. 22.
11
R. Doc. 22-1.
8

2

served through its agent for service of process, Louisiana Secretary
of State, 8585 Archives Avenue, Baton Rouge, Louisiana 70809.12
Because this matter was removed based upon diversity jurisdiction under 28 U.S.C. §
1332,13 proper information regarding the citizenship of all parties is necessary to establish the
Court’s diversity jurisdiction. Citizenship has not been adequately alleged in the proposed First
Supplemental and Amending Petition for Damages. While the citizenship of the Plaintiffs has
been adequately alleged,14 the citizenship of David Haghaghi, Hog Wild Trucking, Inc. and Arch
Insurance Company has not been properly alleged. With respect to Haghaghi, 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).
With respect to Hog Wild Trucking, Inc., the Fifth Circuit has held that 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.”). Thus, to properly allege the citizenship of a corporation, a party must identify
the place of incorporation and the corporation’s principal place of business in accordance with the
requirements of 28 U.S.C. § 1332(c).
With respect to Arch Insurance Company, the proposed First Supplemental and Amending
Petition for Damages for Damages fails to specify what form of entity it is, alleging only that it is
“a foreign insurer.”15 If Arch Insurance Company is a corporation, Plaintiffs must allege the place

12

R. Doc. 22-1 at Introductory Paragraph and ¶ 1.
See, R. Doc. 1.
14
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).
15
R. Doc. 22-1 at ¶ 1(c).
13

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of incorporation and principal place of business. See, 28 U.S.C. § 1332(c). If, however, Arch
Insurance Company is an unincorporated association or a limited liability company, the Fifth
Circuit has held that the citizenship of an unincorporated association or 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 an unincorporated
association or a limited liability company, a party must identify each of the members of the
unincorporated association or limited liability company 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 which is also an unincorporated association or a limited liability company. See,
Turner Bros. Crane and Rigging, LLC v. Kingboard Chemical Holding Ltd., Civ. A. No. 06-88A, 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’ Motion to Substitute Previously Filed
Document No. 20.1 With the Attached Proposed Pleading16 is DENIED without prejudice to
Plaintiffs re-filing a motion to substitute the proposed First Supplemental and Amending Petition
for Damages17 with a proposed pleading that is a comprehensive amended complaint (i.e., it may
not refer back to or rely on any previous pleading) that properly sets forth the citizenship of all
parties and which will become the operative complaint in this matter. Plaintiffs shall have seven

16
17

R. Doc. 22.
R. Doc. 20-1.
4

(7) days from the date of this Order to file the motion to substitute.
Signed in Baton Rouge, Louisiana, on February 8, 2018.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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