Barletta v. Isley, et al.

Filing 8

ORDER: Within fourteen (14) days of the date of this Notice and Order, Roger Isley and Hudson Insurance Company shall file a Notice of Citizenship setting forth the citizenship particulars of Lone Star Transportation, LLC. Signed by Magistrate Judge Erin Wilder-Doomes on 9/22/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MAALTIE CANDICE BARLETTA

CIVIL ACTION

VERSUS

NO. 17-654-SDD-EWD

HUDSON INSURANCE COMPANY, ET AL.

NOTICE AND ORDER
On September 19, 2017, Roger Isley, Hudson Insurance Company (“Hudson”), and Daseke
Lone Star Inc. (“Daseke”) filed a Notice of Removal.1 Therein, Isley, Hudson and Daseke assert
that Daseke was “incorrectly named as Lone Star Transportation, LLC” in the Petition for
Damages filed by plaintiff, Maaltie Candice Barletta.2 No additional information is provided
regarding Daseke in the Notice of Removal. However, Isley, Hudson and Daseke assert that this
Court has diversity subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) because the amount
in controversy exceeds $75,000, exclusive of interest and costs, and the parties are completely
diverse.3
Despite the assertion by Isley, Hudson and Daseke that Daseke was “incorrectly named as
Lone Star Transportation, LLC” in Plaintiff’s original Petition, 28 U.S.C. § 1441(a) provides that,
“Except as otherwise expressly provided by Act of Congress, any civil action brought in a State
court of which the district courts of the United States have original jurisdiction, may be removed
by the defendant or the defendants, to the district court of the United States for the district and
division embracing the place where such action is pending.” 28 U.S.C. § 1441(a) (emphasis

1

R. Doc. 1.
R. Doc. 1 at p. 1; See, R. Doc. 1-1
3
R. Doc. 1 at ¶ XIII.
2

added). In an unpublished opinion, the Fifth Circuit has stated that, “Under 28 U.S.C. § 1441(a),
only a defendant may remove a civil action from state court to federal court. A non-party, even
one that claims to be a real party in interest, lacks the authority to institute removal proceedings.”
De Jongh v. State Farm Lloyds, 555 F. App’x 435, 437 (5th Cir. 2014) (citing Salazar v. Allstate
Tex. Lloyd’s, Inc., 455 F.3d 571, 575 (5th Cir. 2006)). The De Jongh court further explained that,
“In Salazar, we held, under facts nearly identical to those here, that a district court cannot ‘create
removal jurisdiction based on diversity by substituting parties.’” De Jongh, 555 F. App’x at 438
(citing Salazar, 455 F.3d at 573). However, other courts in this Circuit have distinguished
situations in which a removing party is merely misnamed (i.e., all parties agree that the removing
party is the proper defendant) and the court “would not be manufacturing diversity jurisdiction
based on inserting defendants into or dismissing them from a case.” Lefort v. Entergy Corp., 2015
WL 4937906, at *3 (Aug. 18, 2015).
Here, Plaintiff’s Petition for Damages alleges the following:
4.
At all pertinent times herein, ROGER ISLEY was acting within the
course and scope of his employment with the owner of the
tractor/trailer
he
was
operating,
LONE
STAR
TRANSPORTATION, LLC, thereby rendering LONE STAR
TRANSPORTATION, LLC vicariously liable for the fault of its
employee, ROGER ISLEY, pursuant to the doctrine of respondeat
superior.
5.
At the time of the accident sued on, there was in full force and effect
one or more policies of liability insurance issued by defendant,
HUDSON INSURANCE COMPANY, affording coverage for
liability of the nature asserted herein to the benefit of plaintiff,
MAALTIE CANDICE BARLETTA, entitling her to maintain this
Direct Action against said insurer and rendering said insurer
solidarily liable with its insureds, ROGER ISLEY and LONE
STAR TRANSPORTATION, LLC.4

4

R. Doc. 1-1 at ¶¶ 4-5.
2

Based on the allegations set forth in Plaintiff’s Petition for Damages, it appears that
Plaintiff intended to name Roger Isley’s employer as a defendant. Plaintiff has not contested the
assertion that Daseke was incorrectly named in the Petition for Damages.
With respect to subject matter jurisdiction, the Notice of Removal alleges that Plaintiff is
a citizen of Louisiana,5 Daseke is a Delaware corporation with its principal place of business in
Texas,6 and Isley is a citizen of Texas.7 The Notice of Removal contains no allegation of
citizenship with respect to Lone Star Transportation, LLC.

To the extent that Lone Star

Transportation, LLC is also diverse from Plaintiff, the question of which party is the proper
employer defendant does not affect whether this Court has subject matter jurisdiction pursuant to
28 U.S.C. § 1332(a) (i.e., the de facto substitution of Daseke in the place of Lone Star
Transportation, LLC – to the extent that such substitution would be proper – would not result in
the manufacturing of diversity in contravention of De Jongh).
Accordingly,
IT IS HEREBY ORDERED that within fourteen (14) days of the date of this Notice and
Order, Roger Isley and Hudson Insurance Company shall file a Notice of Citizenship setting forth
the citizenship particulars of Lone Star Transportation, LLC.
Signed in Baton Rouge, Louisiana, on September 22, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

5

R. Doc. 1 at ¶ II.
R. Doc. 1 at ¶ III.
7
R. Doc. 1 at ¶ IV.
6

3