Larkin v. Marriott International, Inc., et al

Filing 9

NOTICE and ORDER: As to #1 Notice of Removal,the Removing Defendants shall file a comprehensive Amended Notice of Removal. Amended Pleadings due by 9/21/2020. Removing Defendants shall file a memorandum and supporting evidence concerning whether the amount in controversy requirement of 28 U.S.C. 1332 is met, due by 9/21/2020. Plaintiff shall file either: (1) a Notice stating that Plaintiff does not dispute that Removing Defendants established the jurisdictional requirements of 28 U.S.C. 1332, or (2) a Motion to Remand due by 10/1/2020. Signed by Magistrate Judge Erin Wilder-Doomes on 9/11/2020. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
SUE LARKIN

CIVIL ACTION NO.

VERSUS
20-493-SDD-EWD
MARRIOT INTERNATIONAL, INC.,
ET AL.
NOTICE AND ORDER
This is a civil action involving claims for damages allegedly sustained by Sue Larkin
(“Plaintiff”) because of an incident that occurred on June 26, 2019 while Plaintiff was staying at
the Courtyard by Marriott Alexandria hotel in Alexandria, Louisiana (“Incident”). 1 Plaintiff
alleges that she was “sitting on the bed [in her hotel room] in her undergarments” with the “Do
Not Disturb” sign on her door “when, suddenly and without warning, a contracted Pest-Control
worker entered her room with a hotel key card, causing [Plaintiff] great fear for her personal
safety.” 2 Plaintiff contends she suffered injuries and damages because of the Incident, caused by
the fault of Marriott International, Inc. (“Marriott”), MCR Investors LLC (“MCR”), and/or Ecolab,
Inc. 3 Plaintiff further claims that Marriott, MCR, Sompo America Insurance Company
(“Sompo”), 4 and Ecolab are liable for her injuries and damages. 5
On June 29, 2020, Plaintiff filed her Petition for Damages (“Petition”) against Defendants
in Nineteenth Judicial District Court for the Parish of East Baton Rouge. 6 On August 1, 2020,

1

See, generally, R. Docs. 1-1, 1-2.
R. Doc. 1-1, ¶ 5. Plaintiff amended her Petition to allege that the pest-control worker was employed by Ecolab, Inc.
(“Ecolab”). R. Doc. 1-2, ¶ 5.
3
R. Doc. 1-1, ¶ 6, 10-12; R. Doc. 1-2, ¶ 6, 13-15.
4
R. Doc. 1-1, ¶ 11. Plaintiff alleges the Sompo insured Marriott and/or MCR at the time of the Incident. R. Doc. 1-1,
¶ 11.
5
R. Doc. 1-1, ¶¶ 6, 10-12; R. Doc. 1-2, ¶¶ 6, 13-15. Marriott, MCR, Sompo, and Ecolab are collectively referred as
“Defendants.”
6
R. Doc. 1-1.
2

Marriott, MCR, and Endurance Assurance Corporation (“Endurance”) (collectively, “Removing
Defendants”) removed the matter to this Court, asserting federal subject matter jurisdiction under
28 U.S.C. § 1332. 7
Proper information regarding the citizenship of all parties, and the amount in controversy,
is necessary to establish the Court’s diversity jurisdiction under 28 U.S.C. § 1332. As explained
below, the Notice of Removal is deficient both as to citizenship allegations and as to amount in
controversy.
Endurance as a Defendant versus Sompo
In the Notice of Removal, Removing Defendants allege (1) that Endurance is “incorrectly
named as Sompo,” and (2) that Endurance is “a Delaware corporation.” 8 Removing Defendants’
allegations as to Endurance’s citizenship are deficient. Moreover, Endurance is not currently a
named defendant in this suit, and the Notice of Removal fails to allege the citizenship of the
presently named defendant, Sompo.
28 U.S.C. § 1441(a) provides that “[e]xcept 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.” 9 In an unpublished opinion, the Fifth Circuit has stated that “[u]nder 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.” 10 However, some courts in this Circuit have permitted cases to proceed

7

R. Doc. 1, at introductory paragraph and p. 3.
R. Doc. 1, at introductory paragraph and Section II(A)(i).
9
Emphasis added.
10
De Jongh v. State Farm Lloyds, 555 Fed. Appx. 435, 437 (5th Cir. 2014) (citations omitted).
8

2

notwithstanding removal by a party who is not named where the parties agree the removing party
is misnamed (i.e., the removing party is the intended defendant) and “the Court would not be
manufacturing diversity jurisdiction based on inserting defendants into or dismissing them from a
case.” 11
To the extent Sompo (i.e., the named defendant) is also diverse from Plaintiff, the question
of which party is the proper defendant does not affect this Court’s subject matter jurisdiction
pursuant to 28 U.S.C. § 1332 (i.e., the de facto substitution of Endurance in the place of Sompo—
to the extent such substitution would be proper—would not result in the manufacturing of diversity
in contravention of De Jongh). 12

11

Lefort v. Entergy Corp., No. 15-1245, 2015 WL 4937906, at *3 (E.D. La. Aug. 18, 2015).
The De Jongh Court separated the procedural question of whether the removing entity had authority to remove from
whether the court had subject matter jurisdiction. De Jongh, 555 Fed. Appx. at 438-39 (“State Farm never properly
became a defendant and therefore lacked the authority to remove this action to federal court; moreover, the district
court lacked subject matter jurisdiction because each of the proper parties to this action – Jongh, Lloyds, and Johnson
– are Texas residents.”) and n. 5 (“State Farm contends that, to the extent it erred in improperly removing the case to
federal court as a non-party, such error is, at worst, a ‘procedural defect’ that Jongh waived when she failed to move
for remand within thirty days of removal. We disagree. State Farm’s removal of this case did not transform it into a
party to the case. Thus, even if we overlook the impropriety of State Farm removing, when we analyze the parties to
the case for diversity, we find all Texas citizens, such that we lack diversity jurisdiction.”). Although the Fifth Circuit
has not directly ruled on the question of whether removal by a non-party is a procedural defect that can be waived, it
has indicated that such a position is “plausible.” See Wachovia Bank, N.A. v. PICC Prop. & Cas. Co. Ltd., 328 Fed.
Appx. 946, 948 and n. 1 (5th Cir. May 18, 2009) (per curiam) (noting that “[i]n this Circuit, any objection to removal
that does not involve whether the action could have originally been brought in federal district court is a procedural
error that may be waived by a litigant’s failure to object to removal within the 30-day period provided in § 1447(c),
rather than a lack of subject matter jurisdiction.”). At least one district court in this Circuit has disagreed that De Jongh
allows a distinction between the question of subject matter jurisdiction and authority to remove. See Griffin v.
Walmart, Inc., No. 18-430, 2018 WL 2389750, at **3-4 (N.D. Tex. May 25, 2018) (relying on De Jongh’s “broad
language” that a non-party lacks authority to institute removal proceedings and disagreeing that De Jongh “addresses
the specific circumstance of a court unilaterally allowing the substitution of a diverse defendant in place of a nondiverse one.”) (quoting Richard v. USAA Cas. Ins. Co., No. 17-175, 2017 WL 8944429 (M.D. La. Nov. 30, 2017)).
The Griffin court went on to hold that “under § 1441(a) and De Jongh, the analysis stops when a court has determined
the removing party is not a defendant; if it is not, it cannot remove even if its citizenship is not being used to
manufacture diversity.” Id. at *4. Significantly, the Motion to Remand in Griffin (which was filed within 30 days after
the filing of the notice of removal) was premised on the argument that a non-party had improperly removed the action.
The undersigned agrees that pursuant to 28 U.S.C. § 1441(a), only “the defendant or the defendants” have the right to
remove but considers removal by a non-party to be a waivable procedural defect. Here, the notice of removal was filed
more than thirty days ago, but the defect has not been timely raised, see 28 U.S.C. § 1447(c). Therefore, this Order is
only concerned with the non-waivable issue of whether subject matter jurisdiction exists.
12

3

Citizenship of Plaintiff, Marriott, MCR, Endurance/Sompo, and Ecolab
The party asserting federal jurisdiction must “distinctly and affirmatively” allege the
citizenship of all parties, and “allegations phrased in the negative are insufficient.” It is not clear
that the parties are diverse because citizenship has not been adequately alleged as to any party
other than Plaintiff.
In their Notice of Removal, Defendants state, “Plaintiff is a resident of Stafford County,
Virginia.” 13 Allegations of residency are not sufficient to establish the citizenship of an individual;
rather, “[f]or diversity purposes, citizenship means domicile; mere residence in the State is not
sufficient.” 14 Accordingly, to properly plead Plaintiff’s citizenship, Defendants should have
affirmatively plead Plaintiff’s domicile. However, because Plaintiff alleges in her Petition that she
is a “resident and domiciliary of Stafford, Virginia,” 15 it appears that Plaintiff is a citizen of
Virginia for diversity purposes.
As to Marriott, the Notice of Removal states, “Marriott is a Maryland corporation.” 16
Likewise, the Petition claims that Marriott is “a foreign corporation authorized to do and doing
business in the State of Louisiana…” 17 Under 28 U.S.C. § 1332(c)(1), “a corporation shall be
deemed to be a citizen of every State and foreign state by which it has been incorporated and of
the State or foreign state where it has its principal place of business…” 18 Neither the Notice of
Removal nor the Petition adequately allege the place of incorporation and principal place of
business of Marriott.

13

R. Doc. 1, at Section II(A)(i).
Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974).
15
R. Doc. 1-1, at introductory paragraph.
16
R. Doc. 1, at Section II(A)(i).
17
R. Doc. 1-2, ¶ 2.
18
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.”).
14

4

As to MCR, the Notice of Removal states, “MCR is a Delaware limited liability company;
its single member is Tyler Morse who is a resident of the State of New York.” 19 These are not
sufficient allegations regarding MCR’s citizenship because they do not adequately allege the
citizenship of MCR’s “single member,” Tyler Morse, as required by 28 U.S.C. § 1332(a). “[T]he
citizenship of a limited liability company is determined by the citizenship of all of its members”
for diversity purposes. 20 Thus, to properly allege the citizenship of a limited liability company, a
party must identify each of the members of a limited liability company, and the citizenship of each
member in accordance with the requirements of 28 U.S.C. § 1332(a) and (c). 21 The same
requirement applies to any member of a limited liability company which is also a limited liability
company. 22 As with Plaintiff, allegations of residency are not sufficient to establish the citizenship
of an individual; rather, “[f]or diversity purposes, citizenship means domicile; mere residence in
the State is not sufficient.” 23 Accordingly, to properly plead MCR’s citizenship, Removing
Defendants must affirmatively plead Tyler Morse’s domicile.
As to Endurance, Removing Defendants allege that it is a “Delaware corporation.” 24 Under
28 U.S.C. § 1332(c)(1), “a corporation shall be deemed to be a citizen of every State and foreign
state by which it has been incorporated and of the State or foreign state where it has its principal

19

R. Doc. 1, at Section II(A)(i).
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008).
21
Id.
22
See Turner Bros. Crane and Rigging, LLC v. Kingboard Chemical Holding Ltd., No. 06-88, 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).
23
Mas, 489 F.2d at 1399.
24
R. Doc. 1, at Section II(A)(i).
20

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place of business…” 25 Neither the Notice of Removal nor the Petition 26 adequately allege the place
of incorporation and principal place of business of Endurance.
Finally, while the Petition states that Ecolab is a “foreign corporation authorized to do and
doing business in the State of Louisiana,” 27 the Notice of Removal does not allege Ecolab’s
citizenship. 28 Removing Defendants must affirmatively allege Ecolab’s citizenship.
Amount in Controversy
It is also not clear from the Notice of Removal or the Petition whether Plaintiff’s claims
likely exceed $75,000, exclusive of interest and costs. 29 Plaintiff alleges she sustained “severe
mental anguish and emotional distress,” including “inconvenience, constant fear for her safety,
sleeplessness, fear of traveling, and severe anxiety” when an Ecolab pest-control worker “suddenly
and without warning” entered her Courtyard by Marriott Alexandria hotel room while she was
sitting on the bed in her undergarments. 30 Plaintiff claims she suffered past, present, and future
severe emotional distress, mental anguish and suffering, medical expenses, loss of enjoyment of
life, lost wages and benefits and/or loss of earnings capacity, inconvenience, and costs for travel
cancellations. 31 In their Notice of Removal, Removing Defendants “suggest” that “Plaintiff has
alleged claims in excess of $75,000,” based on (1) the foregoing injuries and damages allegations,
and (2) Plaintiff’s counsel’s “statement that she cannot stipulate to damages less than
$75,000.00” 32

25

See also, Getty Oil, 841 F.2d at 1259.
The Petition contains no allegations regarding Endurance’s citizenship, as Plaintiff alleges that Sompo insured
Marriott and/or MCR at the time of the Incident. R. Doc. 1-2, ¶ 2. Regardless, Plaintiff alleges that Sompo is a “foreign
insurance company authorized to do and doing business in the State of Louisiana.” Id. These allegations in the Petition
are insufficient to establish Sompo’s citizenship for the reasons explained above.
27
R. Doc. 1-2, ¶ 2.
28
See R. Doc. 1.
29
See 28 U.S.C. § 1332(a).
30
R. Doc. 1-1, ¶ 5-6, 12; R. Doc. 1-2, ¶ 5, 6, 13.
31
R. Doc. 1-1, ¶ 12.
32
R. Doc. 1, at Section 2(A)(ii) and Conclusion.
26

6

The allegations in the Petition do not provide enough information to determine if Plaintiff’s
claims will likely exceed $75,000, exclusive of interest and costs. First, Plaintiff’s demands for
general categories of damages (e.g., emotional distress, mental anguish and suffering, medical
expenses, loss of enjoyment of life, inconvenience, lost wages and benefits and/or loss of earning
capacity, costs of travel cancellations, etc.) 33 are insufficient to establish the amount in
controversy. “Courts have routinely held that pleading general categories of damages, such as ‘pain
and suffering, disability, lost wages, loss of earning capacity, medical expenses, etc.,’ without any
indication of the amount of the damages sought, does not provide sufficient information for the
removing defendant to meet his burden of proving that the amount in controversy is satisfied under
the ‘facially apparent’ test.” 34 Removing Defendants have not provided a description of the
specific injuries suffered by Plaintiff, the nature of Plaintiff’s medical treatment, the amount of
medical expenses Plaintiff has incurred, the nature or extent of Plaintiff’s alleged “severe anxiety,”
Plaintiff’s prognosis or recommended future treatment, whether Plaintiff has incurred “cost of
travel cancellations” and, if so, the amount, or whether Plaintiff is working/can work. There is also
is no evidence of any settlement demand, discovery responses, or other relevant documents that
would have bearing on the amount in controversy. 35
Removing Defendants also attempt to show that the amount in controversy is satisfied
through statements allegedly made by Plaintiff’s counsel, including that “she cannot stipulate to
damages less than $75,000.00.” 36 This allegation is also insufficient. First, a plaintiff’s refusal to
execute a stipulation is only one factor to be considered and is not determinative of the amount in

33

R. Doc. 1-1, ¶ 12.
Davis v. JK & T Wings, Inc., No. 11-501, 2012 WL 278728, at *3 (M.D. La. Jan. 6, 2012), and cited cases.
35
The Petition also does not contain a jury demand. While not dispositive, a demand for trial by jury in Louisiana
would at least indicate that Plaintiff believes her damages exceed $50,000. See La. Code. Civ. Proc. art. 1732 and
Batiste v. Stryker Corp., No. 19-574, 2020 WL 2245845, at n. 33 (M.D. La. April 22, 2020).
36
R. Doc. 1, at Section II(A)(ii).
34

7

controversy. 37 Second, when—as here—the facially apparent test is not met, the district court may
require the parties to “submit summary-judgment-type evidence, relevant to the amount in
controversy at the time of removal.” 38 While the Notice of Removal alleges that certain statements
were made by Plaintiff’s counsel, such statements are not summary-judgment-type evidence. 39
Removing Defendants have not submitted any summary-judgment-type evidence bearing on the
amount in controversy for the Court consider.
Although Plaintiff has not filed a Motion to Remand, the Court sua sponte raises the issue
of whether it may exercise diversity jurisdiction in this matter, specifically whether there is
complete diversity among the parties and the amount in controversy requirement has been met. 40
Accordingly,
IT IS ORDERED that by no later than September 21, 2020, Removing Defendants shall
file a comprehensive Amended Notice of Removal, that contains all their numbered allegations as
revised, supplemented, and/or amended, without reference to any other document in the record,
and that adequately alleges (1) the citizenships of Marriott, Endurance, Sompo, 41 and Ecolab,
including their respective places of incorporation and principal places of business; and (2) the
citizenship of MCR’s “single member,” Tyler Morse, including his domicile, as described in this
Ruling and Order.

37
See, e.g., Johnson v. Petsmart, Inc., No. 16-3448, 2017 WL 360265, at *5 (E.D. La. Jan. 25, 2017) and id. at n. 83,
(“See Aldrich v. DBP Holding Corp., No. 13-5729, 2014 WL 2215707 (E.D. La. May 28, 2014) (plaintiff’s failure to
stipulate damages ‘is not conclusive evidence that a claim exceeds $75,000’); see also Carbajal v. Caskids Oil
Operating Co., No. 05-5966, 2006 WL 1030392 (E.D. La. Apr. 18, 2006); Buchana v. Wal-Mart Stores, Inc., No. 992783, 1999 WL 1044336 at *3 (E.D. La. Nov. 17, 1999) (‘Although some courts have considered failure to stipulate
in deciding whether to remand, courts in this district and others have found that factor alone does not satisfy a
defendant’s burden.’).”)
38
Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995); Delta Coatings, Inc. v. Travelers Property
Casualty Co. of America, No. 15-222, 2016 WL 7851411, * 2 (M.D. La. Oct. 21, 2016).
39
Trill Entertainment, LLC v. BCD Music Group, Inc., No. 07-559, 2018 WL 4853024, *1 (M.D. La. Nov. 7, 2008).
40
See McDonal v. Abbott Laboratories, 408 F.3d 177, 182, n. 5 (5th Cir. 2005) (“[A]ny federal court may raise subject
matter jurisdiction sua sponte.”).
41
To the extent Removing Defendants allege that Sompo is not a corporation, then they must nonetheless allege
Sompo’s citizenship, as described in this Ruling and Order.

8

IT IS FURTHER ORDERED that by no later than September 21, 2020, Removing
Defendants shall file a memorandum and supporting evidence concerning whether the amount in
controversy requirement of 28 U.S.C. § 1332 is met.
IT IS FURTHER ORDERED that by no later than October 1, 2020, Plaintiff shall file
either: (1) a Notice stating that Plaintiff does not dispute that Removing Defendants established
the jurisdictional requirements of 28 U.S.C. § 1332, or (2) a Motion to Remand.
The case will be allowed to proceed if jurisdiction is adequately established.
Signed in Baton Rouge, Louisiana, on September 11, 2020.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

9