Dugas v. Mercedes-Benz U S A L L C

Filing 6

SUE SPONTE BRIEFING ORDER: IT IS ORDERED that, not later than April 17, 2012, the removing defendant shall file a memorandum setting forth specific facts and legal analysis to establish whether, at the time of removal, subject matter jurisdiction e xisted in this Court. The plaintiff will be allowed until April 25, 2012 to respond to the defendant's submission. (Compliance Deadline set for 4/17/2012. Second Compliance Deadline set for 4/25/2012). Signed by Magistrate Judge Patrick J Hanna on 4/4/2012. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTEDIVISION
MARIE DUGAS

CIVIL ACTION NO. 12-CV-346

VERSUS

JUDGE DOHERTY

MERCEDES-BENZ USA, LLC

MAGISTRATE JUDGE HANNA

SUE SPONTE BRIEFING ORDER
This case was recently removed from a local state court based on the allegation of
the defendant that the plaintiffs had “proposed to convert this matter to a class action
proceeding and thus that the case had become removable pursuant to the Class Action
Fairness Act of 2005, 28 U.S.C. §1332(d) and §1453.” [Rec. Doc. 1, p. 2, para. 3] It is
further alleged that the proposed pleading had been forwarded to the defendant, along
with a Motion and Order for Leave to File Supplemental and Amending Petition for
Damages. Id.
On February 3, 2012, the Notice of Removal was filed, and the state court record
was submitted to this court. [Rec. Doc. 1] That record demonstrates that on January 4,
2012, the plaintiff filed a Motion and Order for Leave to File Supplemental and
Amending Petition for Damages. [Rec. Doc. 1-2, p. 9] An unsigned Order is in the record
at Rec. Doc. 1-2, p. 11. On March 21, 2012, a Notice of Corrective Action was entered in
the record indicating that the matter was removed to this court before the subject Motion
for Leave was ruled on in the state court.

2

On review of the record as presented, the undersigned finds that the assertions in
the removal documents are based upon the language of an amended pleading which has,
to date, only been proposed; it has not been approved for filing in either the state or
federal court. Since the ‘proposed’ pleading forms the basis/grounds for removal in this
case, and since the plaintiff has yet to obtain leave of any court for filing of that pleading,
it is questioned whether removal in this posture is premature which goes directly to the
issue of the subject matter jurisdiction of the court at the time of removal.
Therefore, IT IS ORDERED that, not later than April 17, 2012, the removing defendant
shall file a memorandum setting forth specific facts and legal analysis to establish
whether, at the time of removal, subject matter jurisdiction existed in this Court. The
plaintiff will be allowed until April 25, 2012 to respond to the defendant’s submission.
Signed at Lafayette, Louisiana this 4th day of April, 2012.

__________________________________
United States Magistrate Judge