Boudreaux v. Redmon et al

Filing 3

ORDER: as to 1 Notice of Removal. Melvin Redmon, Davis Distributing, Inc., Davis Gate & Wire Manufacturing, Inc. and Travelers Property Casualty Company of America shall have seven (7) days from the date of this Notice and Order to file a compre hensive amended Notice of Removal (i.e., it may not refer back to or rely on any previous pleading) without further leave of Court properly setting forth the citizenship particulars required to establish that the Court has diversity jurisdiction over this case under 28 U.S.C. § 1332(a).Comprehensive amended Notice of Removal due by 10/27/2017. Signed by Magistrate Judge Erin Wilder-Doomes on 10/20/2017. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DENETRA BOUDREAUX

CIVIL ACTION

VERSUS

NO. 17-1158-JJB-EWD

MELVIN REDMON, ET AL.

NOTICE AND ORDER
This is a civil action involving claims for damages based upon the injuries allegedly
sustained by Denetra Boudreaux (“Plaintiff”), as a result of a motor vehicle accident that occurred
on or about August 29, 2016.1 On or about August 30, 2017, Plaintiff filed a Petition for Damages
against Melvin Redmon, Davis Distributing, Inc. and Travelers Property Casualty Insurance
Company (collectively, “Defendants”) in the Nineteenth Judicial District Court for the Parish of
East Baton Rouge, State of Louisiana.2 The matter was removed to this Court on October 18, 2017
by Redmon, Davis Distributing, Inc., Davis Gate & Wire Manufacturing, Inc. 3 and Travelers
Property Casualty Company of America4 on the basis of diversity jurisdiction under 28 U.S.C. §
1332(a).5
Despite the assertion by the removing parties that Davis Gate & Wire Manufacturing, Inc.
and Travelers Property Casualty Company of America were incorrectly named in the state court

1

R. Doc. 1-1 at ¶¶ 3-4.
R. Doc. 1-1.
3
The Notice of Removal states that it was filed by “DAVIS GATE & WIRE MANUFACTURING, INC. (incorrectly
named as and Davis Distributing, Inc.) . . . .” R. Doc. 1 at Introductory Paragraph.
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The Notice of Removal alleges that Travelers Property Casualty Company of America was incorrectly named as
Travelers Property Casualty Insurance Company in the state court Petition for Damages. See, R. Doc. 1 at Introductory
Paragraph.
5
R. Doc. 1 at ¶ 2. The removing parties assert that removal is timely under 28 U.S.C. § 1446(b)(3) because it was
filed within 30 days of Plaintiff advising the Defendants on October 16, 2017 that Plaintiff’s damages meet or exceed
the jurisdictional amount for removal to federal court based on diversity of citizenship. See, R. Doc. 1 at ¶ 7.
2

Petition for Damages, 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 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., Civ. A. No. 15-1245, 2015 WL
4937906, at *3 (E.D. La. Aug. 18, 2015).
Here, Plaintiff’s Petition for Damages alleges the following:
4.
Suddenly and without warning, the vehicle operated by MELVIN
REDMON left its lane of travel and collided into the side of the
vehicle operated by DENETRA BOUDREAUX.
5.
The collision caused by the negligence of MELVIN REDMON
caused serious injuries to DENETRA BOUDREAUX.
6.
In no way did DENETRA BOUDREAUX contribute to any cause
of this accident.
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7.
Upon information and belief, at the time of the accident, MELVIN
REDMON was in the course and scope of his employment with
DAVIS DISTRIBUTING, INC.
....
10.
Petitioners are informed, believes, and therefore alleges that at the
time of the accident the defendant, TRAVELERS PROPERTY
CASUALTY COMPANY OF AMERICA, had issued a liability
insurance policy to MELVIN REDMON and/or DAVIS
DISTRIBUTING, INC., insuring MELVIN REDMON and/or
DAVIS DISTRIBUTING, INC. and the vehicle REDMON
operated, and under the laws of the State of Louisiana, was in full
force and effect at the time of the accident, and which insurance
inures to the benefit of Petitioners under the provisions of the
Louisiana Direct Action Statute, L.A. R.S. 22:1269.
11.
Petitioners further allege on information and belief that under the
terms of the said policy, TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA obligated itself to pay any and all
damages caused to others as a result of the negligence of MELVIN
REDMON in the operation of said vehicle, and the vehicle being
driven by MELVIN REDMON, described above, was covered by
said policy at the time of said collision.6
Based on the allegations set forth in Plaintiff’s Petition for Damages, it appears that
Plaintiff intended to name Melvin Redmon’s employer as a defendant. It also appears that Plaintiff
intended to name as a defendant the insurance company that had issued an insurance policy to
Melvin Redmon and/or Redmon’s employer that allegedly provides coverage for the underlying
accident.
With respect to subject matter jurisdiction, the Notice of Removal contains the following
allegations regarding the citizenship of the parties:
2. Plaintiff names as defendants (1) Melvin Redmon, (2) Davis
Distributing, Inc., and (3) Travelers Property Casualty Insurance
Company. Plaintiff alleges that all defendants are nonresidents

6

R. Doc. 1-1 at ¶¶ 4, 5, 6, 7, 10, 11.
3

and/or foreign companies. Melvin Redmon is a resident of and
domiciled in the State of Kentucky. Davis Distributing, Inc. (and
Gate & Wire Manufacturing, Inc.) is formed under the laws of and
has its principal place of business in the State of Kentucky.
Travelers Property Casualty Insurance Company (and Travelers
Property Casualty Company of America) is a foreign insurance
company, formed under the laws of and has its principal place of
business in the State of Connecticut. Consequently, diversity of
citizenship as defined by 28 U.S.C. §§ 1332(a) exists.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. §
1441 regarding whether the case was properly removed to this Court. Citizenship has not been
adequately alleged in the Notice of Removal. While the citizenship of Melvin Redmon, Davis
Distributing, Inc., Davis Gate & Wire Manufacturing, Inc., Travelers Property Casualty Insurance
Company and Travelers Property Casualty Company of America has been adequately alleged,8 the
Notice of Removal contains no allegation regarding the citizenship of the plaintiff, Denetra
Boudreaux. 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).
To the extent that the removing parties allege Davis Gate & Wire Manufacturing, Inc. and
Travelers Property Casualty Company of America are diverse from Plaintiff, the question of which
entity is the proper employer defendant and which entity is the proper insurer defendant does not

7

R. Doc. 1 at ¶ 2.
With respect to Melvin Redmon, 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 Davis Distributing, Inc., Davis Gate & Wire Manufacturing, Inc., Travelers Property
Casualty Insurance Company and Travelers Property Casualty Company of America, the Fifth Circuit has held that
“For diversity jurisdiction purposes, a corporation is a citizen of the state in which it was incorporated and the state in
which it has its principal place of business.” Getty Oil, Div. of Texaco v. Ins. Co. of North America, 841 F.2d 1254,
1259 (5th Cir. 1988) (citing 28 U.S.C. § 1332(c)). 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).
8

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affect whether this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a) (i.e., the
de facto substitution of Davis Gate & Wire Manufacturing, Inc. in the place of Davis Distributing,
Inc. and the de facto substitution of Travelers Property Casualty Company of America in the place
of Travelers Property Casualty Insurance Company—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 Melvin Redmon, Davis Distributing, Inc., Davis Gate
& Wire Manufacturing, Inc. and Travelers Property Casualty Company of America shall have
seven (7) days from the date of this Notice and Order to file a comprehensive amended Notice of
Removal (i.e., it may not refer back to or rely on any previous pleading) without further leave of
Court properly setting forth the citizenship particulars required to establish that the Court has
diversity jurisdiction over this case under 28 U.S.C. § 1332(a).
Signed in Baton Rouge, Louisiana, on October 20, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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