Deshotel et al v. Conoco Phillips Co et al

Filing 38

MEMORANDUM RULING granting 20 MOTION to Remand filed by Opelousas-St Landry Realty Co Inc and Karl Deshotel. Because it lacks jurisdiction, the Court declines to rule on 27 MOTION for Preliminary Hearing pursuant to La.Rev.Stat. 30:29(B)(6) filed by Superior Energy Services L L C. Signed by Magistrate Judge Patrick J Hanna on 2/28/2013. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
KARL DESHOTELS AND
OPELOUSAS-ST. LANDRY
REALTY COMPANY, INC.

CIVIL ACTION NO. 6:12-cv-03133

VERSUS

JUDGE DOHERTY

CONOCOPHILLIPS COMPANY
ET AL.

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING

Pending before the Court is the plaintiff’s motion to remand (Rec. Doc. 20).
The motion is opposed. Oral argument was heard on February 26, 2013. For the
following reasons, the undersigned recommends that the motion be granted and this
action be remanded to the state court where it commenced.

FACTUAL BACKGROUND
The plaintiffs claim that certain property that they either own or use, which is
located in Evangeline Parish, was damaged by oil and gas exploration activities
conducted by the defendants. More specifically, the plaintiffs allege that the
defendants “either caused this contamination, or are otherwise legally responsible for
this contamination. Defendants’ activities include the operation or construction of

various oil and gas facilities, including but not limited to, pits, wells, sumps,
flowlines, pipelines, tank batteries, wellheads, measuring facilities, separators, and
injection facilities.” (Rec. Doc. 1-1 at 4.). They further allege that the “defendants
are liable for damage resulting from the operation of the wells in the Ville Platte Oil
& Gas Field. . . as well as the operation of other equipment and facilities related
thereto.” (Rec. Doc. 1-1 at 4). They then allege that the defendants “conducted,
directed, controlled[,] or participated in various oil and gas exploration and
production activities on the plaintiffs’ Property as operators, and/or working interest
owners, and/or mineral or surface lessees, and/or . . . oil field contractors or workover
contractors” and that, among other allegations, the defendants improperly disposed
of oilfield wastes on the property. (Rec. Doc. 1-1 at 4-5).
The defendants named in the complaint are ConocoPhillips Company, Hilcorp
Energy Company, Vintage Petroleum, LLC, Great Southern Oil & Gas Co., Inc.,
Louisiana Swabbing Service, Inc., Cajun Tubing Testers, Inc., G&L Well Service,
Inc., Reliable Production Services, Inc., Superior Energy Services, L.L.C. (successor
to Moore’s Wireline), and Bennett L. Broussard. (Rec. Doc. 1-1 at 3-4, 43).
The suit was originally filed in a Louisiana state court. Hilcorp then removed
the suit to this forum, arguing that this court has subject-matter jurisdiction under 28
U.S.C. § 1332 because (1) the amount in controversy exceeds the statutory minimum,
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(2) the plaintiffs (who are alleged to be Louisiana citizens) are diverse in citizenship
from defendants Conoco Phillips, Hilcorp, and Vintage, and (3) the remaining
defendants (who are also alleged to be Louisiana citizens) were improperly joined.
(Rec. Doc. 1 at 2). Conoco Phillips and Vintage consented to the removal. (Rec.
Doc. 1-2).
In the removal notice, the removing defendants argued that defendant
Broussard was improperly joined because he is deceased and, therefore, there is no
possibility of recovery against him. (Rec. Doc. 1 at 4). They argued that Great
Southern was improperly joined because it did not conduct oil and gas exploration
activities with regard to any well at issue in this litigation. (Rec. Doc. 1 at 5-6). They
argued that the remaining defendants – Louisiana Swabbing, Cajun Tubing Testers,
G&L, Reliable, and Superior – were improperly joined because these defendants did
not own interests in the relevant mineral leases, had no ownership or operating
interest in the relevant wells or leases, and the petition lacks sufficient facts to hold
them liable. (Rec. Doc. 1 at 4-6).
The plaintiffs then filed the instant motion to remand. (Rec. Doc. 20). In the
remand motion, the plaintiffs do not address the following defendants: Great
Southern, Broussard, G&L, or Reliable, but they argue that Louisiana Swabbing,
Superior, and Cajun Tubing Testers (hereinafter sometimes referred to as “the Service
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Company Defendants”) are nondiverse parties who were not improperly joined,
depriving the court of jurisdiction and requiring that the action be remanded to state
court.
ANALYSIS
Federal district courts are courts of limited jurisdiction, possessing only the
power authorized by the Constitution and by statute.1 Accordingly, federal courts
have subject-matter jurisdiction only over civil actions presenting a federal question2
and those in which the amount in controversy exceeds $75,000 exclusive of interest
and costs and the parties are citizens of different states.3 For that reason, a suit is
presumed to lie outside a federal court's jurisdiction until the party invoking federalcourt jurisdiction establishes otherwise.4 Because “the effect of removal is to deprive
the state court of an action properly before it, removal raises significant federalism
concerns.”5 The removal statute is therefore to be strictly construed, and any doubt
about the propriety of removal must be resolved in favor of remand and against
1

See, e.g., Griffin v. Lee, 621 F.3d 380, 388 (5th Cir. 2010); Halmekangas v. State
Farm Fire and Cas. Co., 603 F.3d 290, 292 (5th Cir. 2010); Howery v. Allstate Ins., Co., 243 F.3d
912, 916 (5th Cir. 2001).
2

28 U.S.C. § 1331.

3

28 U.S.C. § 1332.

4

Howery v. Allstate, 243 F.3d at 916.

5

Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365 (5th Cir. 1995).

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federal-court jurisdiction.6 The party invoking subject-matter jurisdiction in federal
court has the burden of establishing the court’s jurisdiction by a preponderance of the
evidence.7 When an action is removed from state court, as this suit was, the removing
party bears the burden of proving that federal jurisdiction exists.8 Accordingly, the
removing parties – Hilcorp, ConocoPhillips, and Vintage – have the burden of
establishing that this court has jurisdiction over this matter.
To remove a case based on diversity jurisdiction, a defendant must demonstrate
“that all of the prerequisites of diversity jurisdiction contained in 28 U.S.C. § 1332
are satisfied.”9 Thus, the removing defendant must establish that the amount in
controversy exceeds $75,000 and the parties are diverse in citizenship.10

A.

DOES THE AMOUNT
THRESHOLD?

IN

CONTROVERSY EXCEED

THE

STATUTORY

6

Carpenter v. Wichita Falls, 44 F.3d at 366; Acuna v. Brown & Root Inc., 200 F.3d
335, 339 (5th Cir. 2000).
7

Howery v. Allstate, 243 F.3d at 919; St. Paul Reinsurance Co., Ltd. v. Greenberg, 134
F.3d 1250, 1253 (5th Cir. 1998).
8

Shearer v. Southwest Service Life Ins. Co., 516 F.3d 276, 278 (5th Cir. 2008); Boone
v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005); Manguno v. Prudential Property and Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir. 2002); De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).
9

Smallwood v. Illinois Central Railroad Co., 385 F.3d 568, 572 (5th Cir. 2004) (en

10

28 U.S.C. § 1332.

banc).

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The amount in controversy is the sum claimed by the plaintiff in his complaint
if the claim was apparently made in good faith.11 When the complaint does not state
a specific amount of damages, the defendant must establish by a preponderance of the
evidence that the amount in controversy exceeds the jurisdictional threshold.12 This
burden can be satisfied either by demonstrating that the amount in controversy is
facially apparent from the plaintiff’s pleadings or by setting forth the facts in
controversy, with summary-judgment-type evidence, that support a finding of the
requisite amount.13 Thus, the district court must first examine the complaint to
determine whether it is facially apparent that the plaintiffs’ claims exceed the
jurisdictional threshold; if it is not facially apparent, the court may then rely on
summary-judgment-type evidence to ascertain the amount in controversy.14 Any
doubts as to the propriety of removal should be construed strictly in favor of
remand.15
11

St. Paul Reinsurance v. Greenberg, 134 F.3d at 1253; De Aguilar v. Boeing, 47 F.3d
at 1408; Nat’l Union Fire Ins. Co. of Pittsburgh v. Russell, 972 F.2d 628, 630 (5th Cir. 1992).
12

Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); Allen v. R & H Oil &
Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
13

Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999); Allen v. R & H, 63

F.3d at 1335.
14

Luckett v. Delta Airlines, 171 F.3d at 298; Allen v. R & H, 63 F.3d at 1335.

15

Manguno v. Prudential, 276 F.3d at 723.

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In Louisiana, plaintiffs are not permitted to plead a specific dollar amount of
damages.16 Therefore, the original petition filed in this lawsuit does not request
recovery of a specific amount. There are certain situations in which the nature of the
alleged injury or the type of damages claimed will support a conclusion that the
amount-in-controversy threshold has been crossed.17 This is such a case. In this
lawsuit, the plaintiffs seek to recover for alleged damages to certain immovable
property, including compensatory damages in an amount sufficient to conduct an
environmental assessment and restore the property to an unpolluted state; damages
for loss of use, lost profits and lost income; damages for land loss and subsidence;
punitive and exemplary damages; damages for stigma resulting in diminution in
property value; and damages for unjust enrichment. The undersigned therefore finds
that it is facially apparent from the plaintiffs’ petition that the amount in controversy
exceeds the $75,000 statutory threshold for jurisdiction under 28 U.S.C. § 1332.

16

Louisiana Code of Civil Procedure Article 893(A)(1). See, also, In re 1994 Exxon
Chemical Fire, 558 F.3d 378, 388 (5th Cir. 2009).
17

See, e.g., Menendez v. Wal-Mart Stores, Inc., 364 Fed. App’x 62, 67 (5th Cir. 2010)
(“We conclude that it is facially apparent that each plaintiff's wrongful death claim satisfies the
amount in controversy requirement.”); Davis v. Grider, No. 99-30900, 215 F.3d 1350, at *2 (5th Cir.
May 5, 2000); Stockstill v. Wal-Mart Stores, Inc., No. 10-95-FJP-SCR, 2010 WL 6494058, at *2
(M.D. La. Dec. 20, 2010) (“A review of the types of injuries alleged in the petition at the time of
removal clearly establish that the jurisdictional amount has been met.”)

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B.

ARE THE PARTIES DIVERSE IN CITIZENSHIP?
The removing defendants contend that the plaintiffs are diverse in citizenship

from defendants ConocoPhillips, Hilcorp, and Vintage, and that the citizenship of the
remaining defendants should be disregarded because they were improperly joined.
“The diversity statute requires ‘complete diversity’ of citizenship: a district court
cannot exercise diversity jurisdiction if one of the plaintiffs shares the same state
citizenship as one of the defendants.”18 However, the improper joinder doctrine is a
narrow exception to the rule of complete diversity.19
To establish improper joinder, the removing party bears the burden of showing
either that there was actual fraud in the pleading of jurisdictional facts or that the
plaintiff is unable to “establish a cause of action against the non-diverse party in state
court.”20 In this case, there are no allegations of actual fraud; accordingly, the
removing defendants must prove that the plaintiffs have no possibility of recovering
against at least one nondiverse defendant in order to defeat the plaintiffs’ motion for
remand.

18

Whalen v. Carter, 954 F.2d 1087, 1094 (5th Cir. 1992), citing Strawbridge v. Curtiss,
7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806); Mas v. Perry, 489 F.2d 1396, 1398-99 (5th Cir. 1974),
cert. denied, 419 U.S. 842 (1975).
19

McDonal v. Abbott Labs., 408 F.3d 177, 183 (5th Cir. 2005).

20

Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005), quoting Smallwood
v. Illinois Central, 385 F.3d at 573.

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The basis upon which jurisdiction depends must be alleged affirmatively and
distinctly and cannot be established argumentatively or by inference.21 Therefore,
when jurisdiction depends on citizenship, citizenship must be distinctly and
affirmatively alleged.22 Furthermore, “the burden of establishing jurisdiction rests
upon the party seeking to invoke it and cannot be placed upon the adversary who
challenges it.”23 For those reasons, “[t]he burden of pleading diversity of citizenship
is upon the party invoking federal jurisdiction, and if jurisdiction is properly
challenged, that party also bears the burden of proof.”24 Once a motion to remand is
filed, the burden is on the removing party to prove that federal jurisdiction exists.25
If a plaintiff moves for remand, and if “it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”26 Removal statutes are to be
construed “strictly against removal and for remand.”27 To further that rule, “[a]ny

21

Illinois Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 (5th Cir. 1983).

22

Getty Oil, Div. Of Texaco v. Ins. Co. of North America, 841 F.2d 1254, 1259 (5th Cir.

23

Gaitor v. Peninsular & Occidental S. S. Co., 287 F.2d 252, 253 (5th Cir. 1961).

24

Ray v. Bird and Son and Asset Realization Co., 519 F.2d 1081, 1082 (5th Cir. 1975).

25

De Aguilar v. Boeing, 47 F.3d at 1408.

26

28 U.S.C. § 1447(c).

1988).

27

Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996). See, also,
Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-281 (5th Cir. 2007).

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ambiguities are construed against removal because the removal statute should be
strictly construed in favor of remand.”28
Here, it was the removing defendants that invoked this court's jurisdiction by
removing the case from state to federal court. Accordingly, the removing defendants
had the burden of pleading diversity of citizenship distinctly and affirmatively in their
removal notice; they had the burden of proving the citizenship of the parties in
response to the plaintiff’s remand motion; and they have the burden of proving that
at least one defendant was improperly joined.
In their removal notice, the removing defendants set forth information
regarding the citizenship of the plaintiffs, showing that they are Louisiana citizens,
and three of the defendants – ConocoPhillips, Hilcorp, and Vintage – showing that
they are not Louisiana citizens. (Rec. Doc. 1 at 3). The removing defendants state
that the seven other defendants are Louisiana citizens, but they do not prove this to
be the case. Therefore, the undersigned finds that the removing defendants failed to
satisfy their burden of proving the citizenship of each party to the lawsuit.
Since the primary issue presented is improper joinder, however, the
undersigned will, for purposes of the instant remand motion, assume that Great
Southern, Louisiana Swabbing, Cajun Tubing, G&L, Reliable, Superior, and
28

Manguno v. Prudential, 276 F.3d at 723.

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Broussard are all Louisiana citizens. Additionally, since the plaintiffs addressed only
Cajun Tubing, Louisiana Swabbing, and Superior in support of its motion to remand,
the undersigned will analyze only whether at least one of those three entities
(hereinafter sometimes referred to as “the Service Company Defendants”) was
improperly joined.
C.

WERE THE SERVICE COMPANY DEFENDANTS IMPROPERLY JOINED?
When evaluating whether diversity jurisdiction exists, a court must disregard

the nondiverse citizenship of an improperly joined defendant. To establish the
improper joinder of a nondiverse defendant, the removing defendants must
demonstrate either: (1) actual fraud in the pleading of jurisdictional facts, or (2)
inability of the plaintiff to establish a cause of action against the nondiverse party in
state court.29 The removing defendants have a heavy burden of proving improper
joinder.30 The court must evaluate all of the factual allegations in the plaintiff's state
court pleadings in the light most favorable to the plaintiff, resolving all contested
issues of substantive fact in favor of the plaintiff.31 In determining whether a
reasonable basis exists upon which a plaintiff may recover, the court may either

29

Gasch v. Hartford, 491 F.3d at 281.

30

Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir. 1983).

31

Green v. Amerada Hess, 707 F.2d at 205; Guillory v. PPG, 434 F.3d at 308.

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conduct a Rule 12(b)(6)-type analysis or, if the plaintiff has stated a claim but has
misstated or omitted discrete facts that would determine the propriety of joinder, the
court may pierce the pleadings and conduct a summary inquiry.32 If the court then
finds that there is no possibility of recovery against the nondiverse party, the
nondiverse party has been improperly joined, and its citizenship must be disregarded
for jurisdictional purposes. The test to be applied in evaluating improper joinder is
“whether the defendant has demonstrated that there is no possibility of recovery by
the plaintiff against an in-state defendant, which stated differently means that there
is no reasonable basis for the district court to predict that the plaintiff might be able
to recover against an in-state defendant.”33 Stated yet another way,“there must be a
reasonable possibility of recovery, not merely a theoretical one.”34
Having carefully reviewed the plaintiffs’ petition, the undersigned finds that
it is unnecessary to conduct a summary inquiry since the allegations set forth in the
plaintiffs’ petition, viewed in light of the applicable test, reveal a reasonable
possibility of recovery by the plaintiffs against the Service Company Defendants.

32

Anderson v. Georgia Gulf, 342 Fed. App’x at 915-916, citing Smallwood v. Illinois
Central, 385 F.3d at 573.
33

Smallwood v. Illinois Central, 385 F.3d at 577.

34

Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007) (internal quotations,
citations, and emphasis omitted).

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The removing defendants argued, in their removal notice, that the plaintiffs
cannot possibly recover against the Service Company Defendants because the actual
targets of the plaintiffs’ petition are the companies that had interests in mineral leases
affecting the subject property or those with ownership or operating interests in the
wells located on the subject property. They argue that, because the Service Company
Defendants had no such interests, those defendants cannot be held liable in this
lawsuit.
In support of their remand motion, the plaintiffs explained that they are seeking
to recover not only against mineral lessees and operators but also against the Service
Company Defendants that performed operations on the subject property.

In

particular, they argue that the Service Company Defendants – Cajun Tubing,
Louisiana Swabbing, and Superior – “engaged in various well service and/or
maintenance activities on the plaintiffs’ property.” (Rec. Doc. 20-1 at 8). The
plaintiffs further argue that “the well service companies caused damage independent
of and in addition to the damage caused by the Removing Defendants.” (Rec. Doc.
20-1 at 16). The plaintiffs contend that this is apparent from a review of the petition,
and the undersigned agrees.
In this case, most of the allegations set forth in the plaintiffs’ petition are
directed to the defendants in general rather than to any individual defendant in
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particular. In the introductory paragraph, for example, the plaintiffs state that they
are seeking to recover “for damages caused by defendants’ oil and gas exploration
and production and related activities that substantially harmed. . . plaintiffs’
land. . . .” (Rec. Doc. 1-1 at 2). In Paragraph 2, the plaintiffs allege that the subject
property “has been contaminated or otherwise damaged by defendants’ oil and gas
exploration and production activities.” (Rec. Doc. 1-2 at 2). In Paragraph 5, the
plaintiffs allege that “Defendants either caused this contamination or are otherwise
legally responsible for this contamination.

Defendants’ activities include the

operation or construction of various oil and gas facilities, including but no limited to,
pits, wells, sumps, flowlines, pipelines, tank batteries, wellheads, measuring facilities,
separators, and injection facilities. . . . [D]efendants are liable for damage resulting
from the operation of the wells. . . as well as the operation of other equipment and
facilities related thereto.” (Rec. Doc. 1-1 at 4).
In Paragraph 6, however, the plaintiffs clarified the fact that they are seeking
recovery not only from mineral lessees and well operators but also from oilfield
contractors who performed various types of activities on the property to facilitate the
exploration for and/or production of oil or gas from the property. The plaintiffs
allege that the “Defendants conducted, directed, controlled or participated in various
oil and gas exploration and production activities on the plaintiffs’ Property as
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operators. . . and/or oil field contractors or workover contractors.” [Emphasis
added.] (Rec. Doc. 1-1 at 4-5).
More specific allegations are set forth subsequently. In Paragraph 7, for
example, the plaintiffs allege that they were damaged by “the improper disposal of
oilfield wastes in unlined earthen pits, which were constructed by the defendants on
or near the Property during the course of oil and gas exploration and production
activities.” (Rec. Doc. 1-1 at 5). The plaintiffs also allege, in the same paragraph,
that there were “leaks, spills, and other surface and subsurface discharges of. . .
substances from wells, pipelines, tank batteries, gas plants and other equipment or
facilities [that] have . . . polluted the surface and subsurface of plaintiffs’ Property.”
(Rec. Doc. 1-1 at 5).
The plaintiffs link this alleged conduct and damage with the defendants
activities in Paragraph 15, alleging that the “Defendants’ conduct constitutes
negligence.” (Rec. Doc. 1-1 at 8). In Paragraph 28, the plaintiffs reiterate this
allegation, alleging that the defendants “negligently. . . used the Property during
mineral operations.” (Rec. Doc. 1-1 at 13).
The undersigned finds that these allegations are sufficient to state a cause of
action in negligence against the Service Company Defendants, raising a reasonable
possibility of recovery by the plaintiffs against those parties.
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The undersigned further finds that this case is distinguishable from those relied
upon by the removing defendants in opposition to the remand motion.
In Kling Realty Co., Inc. v. Texaco, No. 06-1492, 2007 WL 81665 (W.D. La.
Jan. 8, 2007), the plaintiffs sued Estis Well Service and others. Estis was not diverse,
but the plaintiffs claimed that there was a reasonable possibility of recovery against
Estis because it had allegedly “conducted, directed, controlled, or participated in
various oil and gas exploration and production activities as operators, working
interest owners, and/or joint venturers.” Estis argued that this statement was
unsupported and erroneous, contending that the plaintiffs’ general allegations directed
at all named defendants failed to show that Estis was actually connected as an owner
or operator. In response to the motion to remand, the defendants offered proof in the
form of DNR records and the affidavit of a long-time Chevron employee who averred
that Estis did not operate any of the wells on the property at issue, and was not a
working interest owner or joint venturer with regard to the wells. This evidence was
not contradicted by the plaintiffs. The court concluded that there was no reasonable
basis to predict that the plaintiffs could recover against Estis, and the motion to
remand was denied.
The Kling decision was based on the resolution of Hawthorne Land Co. v.
Occidental Chemical Corp., 431 F.3d 221 (5th Cir. 2005). There, property was
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damaged by leaks from tanks. Two of the defendants were alleged in the complaint
to be excavators rather than welders, and the court found that “there is no
documentary connection between [the two defendants] and the failed welds. The
petition does not allege any connection, and the defendants convincingly show that
the leak reports relied upon by plaintiffs in the motion to remand do not reveal a
connection, either. In addition, the defendants offered the affidavit of [the]. . . plant
manager. . ., which stated that none of the welds by [these two defendants] failed; this
affidavit may be ‘selfserving [sic],’ as plaintiffs contend, but it is evidence which
plaintiffs have not contradicted on even a superficial level.” The court held that there
was no reasonable basis for the district court to predict that the plaintiffs could
recover against these two defendants, and the motion to remand was denied.
In both Kling and Hawthorne, the removing defendants offered evidence
establishing that there was no factual basis for the plaintiffs’ claims, and the court
went beyond the allegations of the petitions and conducted a summary inquiry into
the facts supporting those allegations. In this case, however, the removing defendants
presented no evidence whatsoever proving that the Service Company Defendants did
not, at any relevant time, perform any work on the subject property.
The removing defendants also cite to Frank C. Minvielle, L.L.C. v. IMC et al.,
No. 6:03-cv-01908 (W.D. La. Feb. 2, 2004).
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There, the plaintiffs sued four

defendants, including Estis Well Service. The plaintiff established that Estis plugged
and abandoned a well, but there was no allegation that Estis negligently performed
that service. The court concluded that the allegations Estis were insufficient to create
a reasonable possibility of recovery. Put another way, the plaintiffs in Minvielle did
not allege that the nondiverse defendant was negligent. The motion to remand was
denied, and the claims against Estis were dismissed.
In this case, the undersigned finds that the use of a summary-judgment-style
procedure is unnecessary. Here, as noted above, the plaintiffs’ petition is clear that
negligence claims are expressly asserted against the Service Company Defendants,
and the removing defendants had an adequate opportunity to do what the defendants
in Kling and Hawthorne did and present evidence establishing the extent of the
Service Company Defendants’ activity on the subject property. But the removing
defendants presented no evidence to prove that the Service Company Defendants did
not conduct any operations whatsoever on the subject property. Absent such a
showing by the removing defendants, the undersigned restricted his analysis to the
plaintiffs’ allegations and finds that, from the face of the petition, the plaintiffs have
alleged facts sufficient to raise a reasonable possibility that the plaintiffs might
recover from the plaintiffs. Whether the plaintiffs will ultimately prevail on the

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negligence claims they asserted in their petition is not an issue currently before the
court.
Accordingly, the undersigned finds that this court lacks subject-matter
jurisdiction over this action and grants the plaintiffs’ motion to remand (Rec. Doc.
20). However, this ruling will be stayed during the time period for appeal to the
district court. Absent appeal, the case shall be remanded, otherwise, the ruling will
remain stayed during the pendency of any appeal.

D.

OTHER PENDING MOTION
Defendant Superior Energy Services LLC filed a motion for preliminary

hearing pursuant to La. R.S. 30:29(B)(6). (Rec. Doc. 27). As explained above,
however, the undersigned finds that this court has no jurisdiction over this action.
Accordingly, the court must decline to rule on this motion.

CONCLUSION
The defendants removed this action from state court, contending that the
amount in controversy exceeds the jurisdictional threshold, that the plaintiffs are
diverse in citizenship from the removing defendants, and that the citizenship of the
remaining nondiverse defendants must be disregarded because they were improperly
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joined as defendants in the suit. The plaintiffs filed the instant motion to remand,
arguing that nondiverse defendants Cajun Tubing, Louisiana Swabbing, and Superior
were not improperly joined because there is a reasonable possibility that the plaintiffs
might recover against them.

For the reasons explained above, the removing

defendants did not satisfy their burden of proving that these parties were improperly
joined and did not prove that this court has jurisdiction. Accordingly, the plaintiffs’
motion for remand (Rec. Doc. 20) is GRANTED. Because it lacks jurisdiction, the
Court declines to rule on the other pending motion (Rec. Doc. 27).

Signed at Lafayette, Louisiana, this 27th day of February 2013.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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