Walton v. Daniel

Filing 5

MEMORANDUM ORDER: If Plaintiff contests the assertion that Daniel was improperly joined, she must file a motion to remand, supported by a memorandum, by July 11, 2014 (Compliance Deadline set for 7/11/2014.) If Plaintiff timely files a motion to rem and, it will be noticed for briefing so that the defendants can respond. If Plaintiff does not timely file a motion to remand and challenge the improper joinder plea, the court will consider Plaintiff to concede the point, Daniel will be dismisse d, and the court will promptly set a scheduling conference. Plaintiff may speed the process, if she concedes that Daniel was improperly joined, by notifying the court of that fact and requesting dismissal of Daniel. Signed by Magistrate Judge Mark L Hornsby on 6/18/2014. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION

ELAINE WALTON

CIVIL ACTION NO. 14-cv-1122

VERSUS

JUDGE FOOTE

RANDAL DANIEL, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Plaintiff filed this action in state court based on an allegation she slipped on a lemon
and fell at an Outback restaurant in Bossier City, which caused injuries including a broken
hip, shoulder, and femur. The named defendants were Outback, its insurer, and Randal
Daniel. Plaintiff alleged that Daniel was a co-owner of the business. Outback and its insurer
removed the case based on an assertion of diversity jurisdiction. Outback acknowledged that
Plaintiff and defendant Daniel appear to both be Louisiana citizens, which would destroy
diversity, but Outback asserted that the citizenship of Daniel should be ignored pursuant to
the improper joinder doctrine, which is outlined in Smallwood v. Illinois Central RR Co., 385
F.3d 568 (5th Cir. 2004). Outback contends that Daniel is not an owner, is a mere employee,
and bears no potential fault for the accident.
Plaintiff has not challenged the improper joinder plea, but the court is obligated to
determine subject matter jurisdiction, including whether a party is improperly joined, on its
own initiative. Gasch v. Hartford Acc & Indem. Co. 491 F.3rd 278, 281 (5th Cir. 2007).

If Plaintiff contests the assertion that Daniel was improperly joined, she must file a motion
to remand, supported by a memorandum, by July 11, 2014 and explain why there is a
reasonable basis to predict that state law would allow Plaintiff to recover against Daniel. If
Plaintiff timely files a motion to remand, it will be noticed for briefing so that the defendants
can respond and attempt to meet their burden on the improper joinder issue.
If Plaintiff does not timely file a motion to remand and challenge the improper joinder
plea, the court will consider Plaintiff to concede the point, Daniel will be dismissed, and the
court will promptly set a scheduling conference. Plaintiff may speed the process, if she
concedes that Daniel was improperly joined, by notifying the court of that fact and requesting
dismissal of Daniel.
On another note relating to jurisdiction, Plaintiff is described in the notice of removal
as a “resident” of Louisiana. It appears that her petition does not include a reference to her
citizenship status. It is domicile rather than mere residency that decides citizenship for
diversity purposes, and “[i]t is well established that an allegation of residency does not satisfy
the requirement of an allegation of citizenship.” Great Plains Trust Co. v. Morgan Stanley,
313 F.3d 305, 310 n. 2 (5th Cir. 2002), quoting Strain v. Harrelson Rubber Co., 742 F.2d
888 (5th Cir. 1984). A person may be resident of several states simultaneously, but she has
only one domicile. The court will deem that all parties agree Plaintiff is a domiciliary/citizen
of Louisiana unless objection is raised before the July 11 deadline.

THUS DONE AND SIGNED in Shreveport, Louisiana, this 18th day of June, 2014.