Perez v. Baca et al
MEMORANDUM ORDER. Schneider will need to file an amended 1 Notice of Removal by 12/4/2017 and allege with specificity the state in which Baca was domiciled at the relevant times. Signed by Magistrate Judge Mark L Hornsby on 11/15/2017. (crt,Crick, S)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION NO. 17-cv-1480
CHIEF JUDGE HICKS
LISA L. BACA, ET AL
MAGISTRATE JUDGE HORNSBY
Veronica Perez (“Plaintiff”) filed this civil action in state court to recover damages
from injuries allegedly suffered in a traffic accident. Plaintiff named three defendants: Lisa
Baca, Schneider National Carriers, Inc., and XYZ Insurance Company. Schneider removed
the case based on an assertion of diversity jurisdiction, which places the burden on Schneider
to set forth specific facts that show that there is complete diversity of citizenship. The
current notice of removal does not meet that burden.
Schneider alleges that Plaintiff is a citizen of Louisiana, which is consistent with
allegations in the state court petition. Schneider alleges that it is a Nevada corporation with
its principal place of business in Wisconsin. Schneider does not allege the citizenship of Lisa
Baca. It contends that Baca’s citizenship is not relevant because she had not been served at
the time of removal.
Schneider cites a district court decision for the proposition that Baca’s citizenship is
irrelevant because she has not yet been served, but that decision discussed the relevance of
an unserved defendant when the statutory forum-defendant rule is invoked by a plaintiff to
challenge removal. For purposes of subject matter jurisdiction, however, diversity is
determined from the fact of citizenship of the parties named and not from the fact of service.
New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th Cir. 1998).1
Schneider will need to file an amended notice of removal by December 4, 2017 and
allege with specificity the state in which Baca was domiciled at the relevant times. When a
case is removed, diversity of citizenship must exist both at the time of the state court filing
and at the time of removal to federal court. Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996).
Plaintiff’s petition suggests that Baca is a citizen of Colorado. If she was a Colorado citizen
at the relevant times, this should not pose an issue to removal.
Schneider may ignore XYZ Insurance Company because the citizenship of defendants
sued under fictitious names shall be disregarded in determining whether a civil action is
removable based on diversity. 28 U.S.C. § 1441(b). If Plaintiff later seeks to amend and add
an actual insurer as a new defendant, the proposed pleading must specify the citizenship of
the insurer. If it shares Louisiana citizenship with Plaintiff, the issue must be briefed under
Hensgens v. Deere & Co., 833 F.2d 1179 (5th Cir. 1987).
Deshotel explained: “Broussard’s non-diverse citizenship cannot be ignored
simply because he was an unserved defendant. A non-resident defendant cannot remove
an action if the citizenship of any co-defendant, joined by the plaintiff in good faith,
destroys complete diversity, regardless of service or non-service upon the co-defendant.
Whenever federal jurisdiction in a removal case depends upon complete diversity, the
existence of diversity is determined from the fact of citizenship of the parties named and
not from the fact of service.”
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THUS DONE AND SIGNED in Shreveport, Louisiana, this 15th day of November,
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