Creadeur et al v. Atlantic Richfield Co et al

Filing 35

MEMORANDUM RULING re 20 MOTION to Remand filed by F Douglas Wimberly, Alfred Joseph Daigle, Rebecca Claire Labbe, Kirk J Guillory, Elizabeth R Creadeur, Noah Seth Wimberly, Charles A Labbe, Linda Richard Benoit, Ramona Ann Richard, James Roger Richard, Leona Venable Guillory, James Keith Richard, Sr, Christopher Adam Guidry, Albert T Daigle, Leroy Guillory, Benjamin Luke Wimberly. Having reviewed the pleadings, the relevant jurisprudence, the applicable law, and the arguments advanced by counsel at the hearing on the motion, and for the reasons explained herein, the motion to remand is granted. Signed by Magistrate Judge Patrick J Hanna on 7/3/2014. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
ELIZABETH R. CREADEUR,
ET AL.

CIVIL ACTION NO. 6:14-cv-00695

VERSUS

JUDGE DOHERTY

ATLANTIC RICHFIELD COMPANY,
ET AL.

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Currently pending before this Court is the plaintiffs’ motion to remand. (Rec.
Doc. 20). The motion is opposed. Oral argument was held on June 24, 2014, and the
motion was taken under advisement. Having reviewed the pleadings, the relevant
jurisprudence, the applicable law, and the arguments advanced by counsel at the
hearing on the motion, and for the reasons explained below, the motion to remand is
granted.
FACTUAL AND PROCEDURAL BACKGROUND
In this legacy lawsuit the plaintiffs are alleged to be the owners or users of
certain immovable property, and they claim that they were damaged by the
defendants’ oil and gas exploration and production activities, which were conducted
on or near their land over several years.
In the original petition (Rec. Doc. 1-8 at 1-21), filed in a Louisiana state court
in June 2012, six plaintiffs sued eight oil company defendants, alleging contamination

to two tracts of land as a result of oil and gas exploration and production activities in
the South Lewisburg Field, Acadia Parish, Louisiana. The original petition was filed
by Elizabeth R. Creadeur, Albert Theodore Daigle, Alfred Joseph Daigle, James Keith
Richard, Sr., James Roger Richard, and Ramona Ann Richard. They were alleged to
be the owners or users of the property designated in exhibits as the Richard Tract and
the Daigle Tract. In the original petition, the plaintiffs sued Atlantic Richfield
Company, BP Products North America Inc., Encana Oil & Gas (USA) Inc., Great
Southern Oil & Gas Company, Inc., Hess Corporation, Honeywell International Inc.,
Pioneer Natural Resources USA, Inc., and The Standard Oil Company.
In the first supplemental and amending petition (Rec. Doc. 1-9 at 1-5), which
was filed in February 2013, one plaintiff, Linda Richard Benoit, and one defendant,
Bates & Cornell, were added, and the property description was revised.
In the second supplemental and amending petition (Rec. Doc. 1-10 at 1-8),
which was filed in February 2014, nine new plaintiffs were added, two new
defendants were added, the relevant property was expanded from two tracts to six
tracts, and three of the new plaintiffs asserted personal injury claims. The plaintiffs
added in the second supplemental and amending petition were: Christopher Adam
Guidry, Kirk J. Guillory, Leona Venable Guillory, Leroy Guillory, Charles A. Labbe,
Rebecca Claire Labbe, Benjamin Luke Wimberly, F. Douglas Wimberly, and Noah
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Seth Wimberly. The newly-added plaintiffs are alleged to be the owners or users of
the Guidry tract, the Guillory Tract, the Labbe Tract, and the Wimberly Tract.
Canadianoxy Offshore Production Company and Citgo Pipeline Company were added
as defendants in the second supplemental and amending petition.
Following service of the second supplemental and amending petition on five
defendants, the action was removed to this Court on March 28, 2014 by Hess
Corporation, BP Products North America Inc., Atlantic Richfield Company
(“ARCO”), The Standard Oil Company, and Honeywell International Inc. (Rec. Doc.
1). Encana Oil & Gas (USA) Inc. contemporaneously consented to the removal (Rec.
Doc. 1-7) and Canadianoxy Offshore Production Co. subsequently consented. (Rec.
Doc. 13). Thus, “the Removing Defendants” are Hess, BP, ARCO, Standard Oil, and
Honeywell. The “Consenting Defendants” are Encana and Canadianoxy. The
remaining defendants are Great Southern, Pioneer, Bates & Cornell, and Citgo.
THE PARTIES’ CONTENTIONS
The plaintiffs contend that this entire action should be remanded because (1)
the removal notice was not timely, (2) not all of the served defendants consented to
the removal, and (3) the parties are not completely diverse in citizenship, depriving
this Court of subject-matter jurisdiction. (Rec. Doc. 20).
The Removing Defendants contend (1) that the removal was timely under the
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“revival exception;” (2) that the consent of improperly joined defendants – Great
Southern, Pioneer, Bates & Cornell, Citgo, and Canadianoxy – was not necessary;
and (3) that this Court has subject-matter jurisdiction over some of the claims asserted
in this action under 28 U.S.C. § 1332. The contend jurisdiction exists over some of
the claims because the amount in controversy exceeds the jurisdictional minimum, the
parties are diverse in citizenship when the citizenship of five allegedly improperly
joined defendants is ignored and the claims are analyzed on a tract-by-tract basis.
Specifically, they contend that diversity exists with regard to the Daigle, Wimberly,
and Guidry tracts because all of the plaintiffs who own or use those tracts are diverse
from all of the defendants alleged to have damaged those tracts. They also contend
that the claims concerning the Richard, Labbe, and Guillory tracts were improperly
joined in this litigation (Rec. Doc. 1 at 8), because the plaintiffs who own or use those
tracts are not diverse in citizenship from the defendants who allegedly damaged those
tracts. The Removing Defendants seek to have this Court exercise jurisdiction over
the claims brought by the Daigle plaintiffs, the Guidry plaintiffs, and the Wimberly
plaintiffs but they also seek to have the claims asserted by the Richard plaintiffs, the
Labbe plaintiffs, and the Guillory plaintiffs severed and remanded. (Rec. Doc. 1 at
8). To support this position, the Removing Defendants rely upon a theory of
“egregious misjoinder” or “procedural misjoinder” that was recognized in Tapscott
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v. MS Dealer Service Corp., 77 F.3d 1353 (11th Cir. 1996) abrogated on other grounds
by Cohen v. Office Depot, Inc. 204 F.3d 1069 (11th Cir. 2000).
LAW

AND

ANALYSIS

Federal district courts are courts of limited jurisdiction, possessing only the
power authorized by the Constitution and by statute.1 Accordingly, by statute, federal
courts have subject-matter jurisdiction over civil actions based on diversity of
citizenship if the amount in controversy exceeds $75,000 exclusive of interest and
costs and the parties are citizens of different states.2 Pursuant to 28 U.S.C. § 1441(a),
a defendant may remove “any civil action brought in a State court of which the
district courts of the United States have original jurisdiction.” However, “[a] civil
action otherwise removable solely on the basis of . . . [diversity jurisdiction] may not
be removed if any of the parties in interest properly joined and served as defendants
is a citizen of the State in which such action is brought.”3

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. § 1332.

3

28 U.S.C. § 1441(b)(2).

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A suit is presumed to lie outside of federal-court jurisdiction until the party
invoking it 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 Therefore, the removal statute is to be strictly construed,6 and any doubt
about the propriety of removal must be resolved in favor of remand and against
federal-court jurisdiction.7 In other words, the removal statute is to be construed
“strictly against removal and for remand.”8 To further that rule, “[a]ny ambiguities
are construed against removal [and] in favor of remand.”9
The party invoking subject-matter jurisdiction in federal court has the burden
of establishing the court’s jurisdiction by a preponderance of the evidence.10 When
an action is removed from state court, as this suit was, the removing party bears that

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).

6

Carpenter v. Wichita Falls, 44 F.3d at 366.

7

Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).

8

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); In re Hot-Hed Inc., 477
F.3d 320, 323 (5th Cir. 2007).
9

Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
See, also, Acuna v. Brown & Root Inc., 200 F.3d at 339.
10

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

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burden.11 To remove a civil action 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.”12 When a motion to remand is filed, the burden is on the
removing party to prove that federal jurisdiction exists.13 If a plaintiff moves for
remand, and if “it appears that the district court lacks subject matter jurisdiction, the
case shall be remanded.”14
Since the Removing Defendants invoked this Court's jurisdiction by removing
the case, in response to the plaintiffs’ remand motion, the Removing Defendants have
the burden of proving not only that this Court has diversity jurisdiction over this
action, but that none of the defendants properly joined and served are a citizen of
Louisiana. This Court finds the Removing Defendants have not satisfied their
burden.

11

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 at 723; De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).
12

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

13

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

14

28 U.S.C. § 1447(c).

banc).

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More than two hundred years ago, the United States Supreme Court established
the rule of complete diversity for cases arising under 28 U.S.C. § 1332.15 That rule
requires that all persons or entities on one side of the controversy must be citizens of
different states than all persons or entities on the other side.16 “It is axiomatic that
diversity jurisdiction. . . requires complete diversity between plaintiffs and
defendants. In other words, for diversity jurisdiction to exist, no plaintiff may be a
domiciliary of the same state as any defendant.”17 This is important in the context of
the issues presented here because, in this case, “[i]ncomplete diversity destroys
original jurisdiction with respect to all claims.”18 (Emphasis added). Supplemental
jurisdiction does not apply because if there is incomplete diversity, “there is nothing
to which supplemental jurisdiction can adhere.”19

15

Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806). See, also,
McLaughlin v. Mississippi Power Co., 376 F.3d 344, 353 (5th Cir. 2004).
16

Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008); Harrison v.
Prather, 404 F.2d 267, 272 (5th Cir. 1968).
17

Jernigan v. Ashland Oil Inc., 989 F.2d 812, 814 (5th Cir. 1993).

18

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 554 (2005).

19

Id.

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1.

ARE THE PARTIES DIVERSE IN CITIZENSHIP?
In this case, all of the plaintiffs are natural persons. The citizenship of a natural

person is determined by the state in which he or she is domiciled.20 In their petitions,
the plaintiffs allege that they are all citizens of Louisiana except Elizabeth R.
Creadeur, a citizen of Illinois, and Kirk J. Guillory, a citizen of Texas.
All but one of the defendants are corporations. A corporation’s citizenship is
determined by its state of incorporation and the state of its principal place of
business.21 Therefore, as established by the Removing Defendants in their removal
notice, ARCO is a citizen of Delaware and Texas, BP is a citizen of Maryland and
Texas, Encana is a citizen of Delaware and Colorado, Great Southern is a citizen of
Louisiana and Florida, Hess is a citizen of Delaware and New York, Honeywell is a
citizen of Delaware and New Jersey, Pioneer is a citizen of Delaware and Texas,
Standard Oil is a citizen of Ohio and Texas, Canadianoxy is a citizen of Delaware and
Texas, and Citgo is a citizen of Delaware and Texas.
“For purposes of federal diversity jurisdiction, the partnership itself is
considered a citizen of every state of which a general or a limited partner is a

20

Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 (5th Cir. 2011).

21

28 U.S.C. § 1332(c)(1).

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citizen.”22 Bates & Cornell is alleged to be a partnership, with at least one partner,
Drew Cornell, who is a Louisiana domiciliary. Therefore, Bates & Cornell is a
Louisiana citizen. (Rec. Doc. 1 at 11).
Since there are both plaintiffs and defendants who are citizens of Louisiana and
Texas, the parties are not completely diverse. Further, since at least one of the served
defendants is a Louisiana citizen, Great Southern, removal would not be authorized
under 28 U.S.C. § 1441(b)(2) if Great Southern was properly joined.23
The removing defendants suggest that certain of the plaintiffs are asserting
claims only against certain of the defendants, apparently relying upon exhibits to the
petitions that identify which defendants leased which tracts of land and which
defendants conducted operations on which tracts of land. But the allegations in the
petitions themselves make no such distinction. To the contrary, the allegations
indicate that every plaintiff is asserting a claim against every defendant.
Accordingly, the Court finds that the parties are not completely diverse.

22

Bankston v. Burch, 27 F.3d 164, 166 (5th Cir. 1994), citing Carden v. Arkoma Assocs.,
494 U.S. 185, 195–96; Whalen v. Carter, 954 F.2d 1087, 1094–95 (5th Cir. 1992). See, also, Harvey
v. Grey Wolf Drilling Co., 542 F.3d at 1079.
23

Bates and Cornell, the partnership whose general partner is a Louisiana citizen, has
not been served.

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2.

WERE SOME OF THE DEFENDANTS IMPROPERLY JOINED?
Improper joinder24 is an exception to the complete diversity rule. When a party

is improperly joined, its citizenship is not considered in the complete diversity
calculation.25

When a removing party alleges jurisdiction on the basis that

non-diverse parties have been improperly joined, the removing party must bear the
burden of proving improper joinder.26 The Court finds that the Removing Defendants
have not satisfied that burden.
In the Fifth Circuit, improper joinder can be established in two ways, either by
demonstrating “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability
of the plaintiff to establish a cause of action against the non-diverse party in state
court.”27 However, the Removing Defendants do not contend that either of those
forms of improper joinder is applicable in this case. Instead, they argue that a third

24

In Smallwood v. Illinois Cent. R. Co., 385 F.3d at 571 n. 1, the Fifth Circuit adopted
the term “improper joinder” as a substitute for the term “fraudulent joinder,” which was used
previously, stating that “[a]lthough there is no substantive difference between the two terms,
‘improper joinder’ is preferred.”
25

See Kemp v. CTL Distribution, Inc., 440 F. App'x 240, 248 (5th Cir. 2011); Guillory
v. PPG Indus., Inc., 434 F.3d 303, 313 (5th Cir. 2005); Jernigan v. Ashland Oil Inc., 989 F.2d at 817.
26

Jernigan v. Ashland Oil Inc., 989 F.2d at 815; Carriere v. Sears, Roebuck and Co.,
893 F.2d 98, 100 (5th Cir.), cert. denied, 498 U.S. 817 (1990).
27

Smallwood v. Illinois, 385 F.3d at 573 quoting Travis v. Irby, 326 F.3d 644, 646-47
(5 Cir. 2003); Gasch v. Hartford, 491 F.3d at 281.
th

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type of improper joinder applies to permit the Court to disregard the citizenship of
the non-diverse defendants.
The Removing Defendants base their argument on the analysis set forth in
Tapscott v. MS Dealer Service Corp. Under Tapscott, “fraudulent misjoinder” is said
to exist when (1) a defendant has been misjoined with other defendants in violation
of applicable joinder rules; and (2) the misjoinder is so egregious as to constitute
fraudulent joinder.28 This type of misjoinder has sometimes been referred to as
“procedural misjoinder”29 or “egregious misjoinder.”30
In Tapscott, the court found that there were no allegations of joint liability or
conspiracy between the diverse defendant and the non-diverse defendants. Rather, the
allegations of a common business practice to establish joinder was described by the
district court as “bordering on a sham” as the transactions between the two classes of
defendants were wholly distinct. The issue before the court was whether an
admittedly improper joinder under the rules of the State of Alabama for permissive

28

Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1360 (11th Cir. 1996), abrogated
on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).
29

See, e.g., In re Pradaxa, No. 3:12-md-02385, 2014 WL 257831 (S.D. Ill. Jan. 23,

2014).
30

See, e.g., Walker v. Scales, No. 1:13-CV-00227-SA-DAS, 2014 WL 670216 (N.D.
Miss. Feb. 20, 2014).

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joinder, “no matter how egregious, is not fraudulent joinder.”31 Noting the Eleventh
Circuit recognized the same two types of “fraudulent joinder” that are set forth above,
the court was clear in its holding:
Misjoinder may be just as fraudulent as the joinder of a resident
defendant against whom a plaintiff has no possibility of a cause of
action. A defendant's “right of removal cannot be defeated by a
fraudulent joinder of a resident defendant having no real connection
with the controversy.” Wilson v. Republic Iron & Steel Co., 257 U.S. 92,
97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921). Although certain putative class
representatives may have colorable claims against resident defendants
in the putative “automobile” class, these resident defendants have no
real connection with the controversy involving Appellants Davis and
West and Appellee Lowe's in the putative “merchant” class action. We
hold that the district court did not err in finding an attempt to defeat
diversity jurisdiction by fraudulent joinder. We do not hold that mere
misjoinder is fraudulent joinder, but we do agree with the district court
that Appellants' attempt to join these parties is so egregious as to
constitute fraudulent joinder.
Tapscott v. MS Dealer Service Corp. 77 F.3d at 1360.
To date, the Tapscott analysis has not been adopted by the Fifth Circuit, but the
Tapscott decision has been mentioned in Fifth Circuit cases. In the case of In re
Benjamin Moore & Co., the Fifth Circuit stated without holding that the fraudulent
misjoinder of plaintiffs should not be allowed to defeat diversity jurisdiction.32 This
has been interpreted by some district courts as “agreement with that decision

31

Tapscott v. MS Dealer Service Corp., 77 F.3d at 1360.

32

In re Benjamin Moore & Co., 309 F.3d 296, 298 (5th Cir. 2002).

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[Tapscott], albeit in dicta.”33 However, when the Fifth Circuit decided Smallwood
v. Illinois Central Railroad Co. two years after it decided Benjamin Moore, it did not
mention Tapscott-style “egregious misjoinder.” Instead, it clearly stated that “we
have recognized two ways to establish improper joinder: (1) actual fraud in the
pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of
action against the non-diverse party in state court.”34 The Fifth Circuit reiterated that
statement two years after that, in Crockett v. R.J. Reynolds Tobacco Co.35 In fact, the
Fifth Circuit distinguished Tapscott-style “egregious misjoinder” from improper
joinder in the Crockett decision, stating that:
A party, however, can be improperly joined without being fraudulently
joined.36 Under federal law, defendants are properly joined if (1) “there
is asserted against them jointly, severally, or in the alternative, any right
to relief in respect of or arising out of the same transaction, occurrence,
or series of transactions or occurrences” and (2) “any question of law or
fact common to all defendants will arise in the action.” Fed.R.Civ.P.
20(a). Texas has adopted the same requirements for proper joinder. See
Tex.R. Civ. P. 40(a). If these requirements are not met, joinder is

33

Martinson v. Total Petrochemicals & Ref. USA, Inc., No. H-14-555, 2014 WL
2169970, at *2 (S.D. Tex., May 23, 2014).
34

Smallwood v. Illinois Central Railroad Co., 385 F.3d at 573 (internal quotation

omitted.)
35

436 F.3d 529, 532 (5th Cir. 2006).

36

Despite the Smallwood court’s admonition that the term “improper joinder” should
replace the term “fraudulent joinder,” the Crockett court used the traditional term “fraudulent
joinder.”

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improper even if there is no fraud in the pleadings and the plaintiff does
have the ability to recover against each of the defendants.37

The quoted statement, which is followed by a citation to Tapscott, does not
indicate that “egregious misjoinder” under Tapscott should be classified as a third
type of improper joinder as the Removing Defendants in this case suggest; to the
contrary, it recognizes that what was described in Tapscott, i.e. improper joinder
under the state law for permissive joinder, is different from what was traditionally
known as fraudulent joinder.

The Fifth Circuit had the opportunity, in deciding

Crockett, to expressly and specifically address whether Tapscott-style “egregious
misjoinder” was a form of improper joinder, and the Court did not do so, choosing
instead to reiterate that it recognizes only two ways in which fraudulent joinder can
be established. This Court is, therefore, constrained to follow that jurisprudence and
notes that Crockett remains the Fifth Circuit’s most recent reference to the Tapscott
decision.
The substantive decision reached in Crockett is also instructive. There, the
plaintiffs were the heirs of a deceased long-time smoker. They filed a wrongful death
and survival suit against tobacco companies and also against the decedent’s health
care providers. They alleged that the tobacco companies sold defective cigarettes and
37

Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 533 (5th Cir. 2006).

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that the health care providers negligently failed to diagnose the fatal cancer, their
actions combining to cause the decedent’s death. Because the plaintiffs and the
health care providers were citizens of the same state, diversity was not complete. But
the tobacco companies removed, alleging that the health care providers were
fraudulently joined to defeat federal-court jurisdiction. The district court determined
that there was no fraudulent joinder and remanded the action.
Back in state court, the tobacco companies moved to sever the claim against
them from the claim against the health care providers. The motion was granted, and
the tobacco companies again removed. The plaintiffs again moved for remand, but
the district court denied the motion, and the Fifth Circuit affirmed. The second
motion for remand was unsuccessful because the parties remaining in the suit after
the claims against the in-state health care providers were severed were diverse in
citizenship.
Thus, Crockett provides a roadmap for how the defendants in this lawsuit
might have proceeded. They could have filed, in the state court proceeding, a motion
to sever, or an exception of improper cumulation of claims, or an exception of
improper joinder of parties and, then, if successful, they could have attempted to
remove any resulting action in which the parties were diverse in citizenship. Instead,
they put the cart before the horse, arguing that some of the plaintiffs’ claims were
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“egregiously misjoined” and that the non-diverse defendants’ citizenship should,
therefore, be disregarded in determining whether the parties to this lawsuit are
diverse.
Agreeing with the Removing Defendants would require this Court to (a) ignore
the Fifth Circuit’s recognition that a party might be improperly joined without being
“fraudulently joined,” and (b) find that “egregious misjoinder” is a third type of
improper joinder that has not yet been adopted by the Fifth Circuit. This Court
declines to follow either of those paths.
Because federal courts are courts of limited jurisdiction and removal
jurisdiction must be narrowly construed in favor of state-court jurisdiction, this Court
will not expand the scope of federal diversity jurisdiction on removal through the
adoption of the “egregious misjoinder” doctrine absent clear guidance from the Fifth
Circuit or Congressional action.38 The Removing Defendants argue that the plaintiffs
have improperly joined defendants and improperly cumulated claims in the second
supplemental and amending petition. (Rec. Doc. 24 at 6). Because this lawsuit was
pending in Louisiana state court when the second supplemental and amending
petition was filed and because the parties are not completely diverse, this Court

38

In reaching this conclusion, the Court finds certain decisions from the Seventh Circuit
persuasive, including Sabo v. Dennis Technologies, LLC, No. 07-cv-283-DRH, 2007 WL 1958591
*6-7, (S.D. Ill. July 2, 2007) collecting cases.

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concludes that any challenge to the joinder of parties or cumulation of claims should
properly have been made in that forum, just as in Crockett.
Furthermore, even if this Court were inclined to adopt the Tapscott analysis as
a third form of improper joinder, it would first be necessary to decide whether federal
or state joinder rules should be employed. “District courts in this circuit are not of
one mind on the issue.”39 This Court would be inclined to agree with those decisions
holding that “because plaintiffs brought their actions in state court and were required
to follow state joinder rules when they did so, state joinder rules are the relevant ones
to determine the propriety of the joinder of plaintiffs and/or defendants. . . .”40
Thus, by bringing the joinder challenge in this forum, the Removing
Defendants are essentially asking this Court to first determine whether there is
improper joinder under La.C.Civ.P. arts. 463 et.seq., then use Fed.R.Civ.P. 21 to
sever the plaintiffs’ claims on a tract-by-tract basis if they fail to meet the permissive

39

Accardo v. Lafayette Ins. Co., No. 06-8568, 2007 WL at 325368, at *3 (E.D. La., Jan.
30, 2007). For example, the court concluded in Bienemy v. Continental Cas. Co., No. 09-6647, 2010
WL 375213, at *6 (E.D. La. Jan. 26, 2010), that the better rule was for the removing party to
challenge joinder in state court before seeking removal, while it was determined in Frankland v.
State Farm Fire & Cas. Co., No. 2:07-cv-1767, 2008 WL 4072819, at *3 (W.D. La. July 2, 2008),
that the better approach was for the federal court to decide the joinder issue while applying state
joinder rules.
40

Accardo v. Lafayette Ins. Co., 2007 WL at 325368, at * 4; Williams v. Executive Risk
Specialty Ins. Co., No. 11-0686, 2011 WL 2461346, at *5 (W.D. La. June 17, 2011) aff'd sub nom.
Williams v. Homeland Ins. Co. of N.Y., 657 F.3d 287 (5th Cir. 2011).

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joinder requirements under state law, and to then remand some of the claims but
retain jurisdiction over others.41 The Court finds that using Rule 21 in this manner
would contravene Fed.R.Civ.P. 82, which states that “[t]hese rules do not extend or
limit the jurisdiction of the district courts or the venue of actions in those courts.”
Finally, it must be noted that the relevant statutes specifically permit the
removal of a “civil action”42 and the remand of a “case.”43 The United States
Supreme Court recently turned to Black's Law Dictionary for the definition of the
term “civil action” and found that its definition is identical to that of an “action at
law,” “which in relevant part is defined as a ‘civil suit stating a legal cause of
action.’”44 In other words, an entire lawsuit might be removed or remanded, but the
statute addressing removal and remand does not provide a mechanism for the removal
or remand of only certain claims when subject-matter jurisdiction is based on
diversity of citizenship.45 Similarly, the statute defining the original jurisdiction of
41

La. C.Civ.P. art 647 provides that the permissive joinder of two or more plaintiffs or
defendants in the same suit is governed by Articles 463-465.
28 U.S.C. § 1441. See, also, 28 U.S.C. § 1446, which sets forth the procedure for
removal of a “civil action.”
42

43

28 U.S.C. § 1447.

44

CTS Corp. v. Waldburger, ___ U.S. ___, 134 S. Ct. 2175, 2187 (2014).

28 U.S.C. § 1441(c)(2) permits severance and remand of claims not within the
supplemental or original jurisdiction of the federal district court when a claim within the court’s
federal-question jurisdiction is also stated, but that exceptional scenario is not presented in this case.
45

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federal district courts provides that the “district courts shall have original jurisdiction
of all civil actions” meeting certain criteria.46 This Court’s subject-matter jurisdiction
is, therefore, evaluated with regard to the entire civil action or lawsuit and not with
regard to any particular claim asserted in such a lawsuit. For those reasons, this Court
will not remand only some of the plaintiffs’ claims and retain jurisdiction over others.
In summary, the Court declines to apply Tapscott-style “egregious misjoinder”
in this case, declines to find that the non-diverse defendants were improperly joined,
declines to decide whether any of the plaintiffs’ claims were misjoined under
Louisiana law, and declines to remand only some of the plaintiffs’ claims. The Court
finds that the plaintiffs are not completely diverse in citizenship from the defendants;
therefore, this Court lacks subject-matter jurisdiction over this action, and the entire
action will be remanded.
3.

WAS THE REMOVAL TIMELY?
The plaintiffs argue that the removal was not timely because it occurred more

than one year after this lawsuit was initiated. The timing of removal is governed by
28 U.S.C. § 1446(b), which establishes a thirty-day window for removal of an action.
The statute reads as follows:

46

28 U.S.C. § 1332 (a).

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The notice of removal of a civil action or proceeding shall
be filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
Section 1446(b)(3) states:
Except as provided in subsection (c), if the case stated by
the initial pleading is not removable, a notice of removal
may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
become removable.
Section 1446(c) sets a one-year limit on diversity-based removal, reading as follows:
A case may not be removed under subsection (b)(3) on the
basis of jurisdiction conferred by section 1332 more than
1 year after commencement of the action, unless the district
court finds that the plaintiff has acted in bad faith in order
to prevent a defendant from removing the action.
The plaintiffs contend that removal of this action was not timely because the
removal notice was filed more than one year after the suit was initially filed. While
admitting that the action was removed more than one year after it was initiated, the
Removing Defendants contend, first, that the action was removable when originally

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filed and, second, that the “revival exception” applies and permits removal even after
the expiration of the one-year time period.
The Fifth Circuit has held that the general thirty-day removal rule applies to
cases that are initially removable, that the “other paper” provision of the rule applies
only to cases that are not initially removable, and that the one-year limitation on
removals applies only to cases that are not initially removable.47 The Removing
Defendants do not dispute this, and they contend, in fact, that the case was removable
at the time it was originally filed, arguing that the non-diverse defendants named in
the original petition were improperly joined. Therefore, they also contend that the
one-year limit on removal does not apply.
The “revival exception” is a judicially-created rule that is applicable only when
the action was removable when it was originally filed, the defendants did not remove
within the thirty-day time period even though they could have, and the plaintiff’s
complaint was “amended so substantially as to alter the character of the action and
constitute essentially a new lawsuit.”48 This exception was first recognized by the
Fifth Circuit in Cliett v. Scott, which held that “though a defendant has submitted

47

Johnson v. Heublein Inc., 227 F.3d 236, 241 (5th Cir. 2000), citing New York Life Ins.
Co. v. Deshotel, 142 F.3d 873, 886 (5th Cir. 1998).
48

Johnson v. Heublein, Inc., 227 F.3d at 241.

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himself to state court jurisdiction on one cause of action, this does not prevent his
removing the cause when an entirely new and different cause of action is filed.”49
There are two reasons why the Removing Defendants’ argument lacks merit.
First, the Removing Defendants have recourse to the revival exception only if the
lawsuit, as originally filed, was removable. The Removing Defendants contend that
the action was originally removable because the non-diverse defendants named in the
original petition were improperly joined under the Tapscott rationale. But, as
explained above, this Court has already decided that Tapscott does not apply in this
case, and consequently that the non-diverse defendants were not improperly joined
as defendants in this lawsuit. Therefore, the suit was not removable when it was
originally filed, both because there was not complete diversity and because one of the
defendants who was properly joined and served was a citizen of Louisiana. Therefore,
the removal is untimely and the revival exception cannot be relied upon by the
Removing Defendants.50
Second, the claims added in the second supplemental and amending petition
are not so different from those asserted in the plaintiffs’ first two petitions as to
49

Cliett v. Scott, 233 F.2d 269, 271 (5th Cir. 1956).

50

This Court notes in passing that it would not likely find the allegations in the original
petition against Great Southern to be so “egregious” as to find a basis to consider them fraudulent
as Great Southern is alleged to have operated on the Richard tract with some of the removing
defendants.

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constitute a wholly new lawsuit. Although personal injury claims were added for the
first time in the most recent petition, this action remains, at its heart, a legacy suit
seeking compensation for alleged damaged to property by entities conducting oil and
gas exploration and production activities. The new claims are not so fundamentally
different as to necessitate reclassification of the action as an entirely new lawsuit.
Accordingly, the revival exception is inapplicable and did not operate to afford
the Removing Defendants an opportunity to remove this action more than thirty days
after it was originally filed.

CONCLUSION
For the foregoing reasons, the plaintiff’s motion to remand (Rec. Doc. 20) is
GRANTED.
Signed at Lafayette, Louisiana, on this 3rd day of July, 2014.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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