Girod v. A C C C Insurance Co et al
Filing
17
ORDER OF REMAND: IT IS ORDERED that this matter shall be remanded to the 16th Judicial District Court for the Parish of Iberia, State of Louisiana, for lack of subject matter jurisdiction. This Order shall be STAYED for 14 days from the date of issuance. Any appeal to the District Judge must be filed within fourteen days from the date of this Order. Signed by Magistrate Judge Carol B Whitehurst on 11/19/2015. (crt,Chicola, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Girod
Civil action no. 6:15-cv-02112
versus
Judge Rebecca F. Doherty
ACCC Insurance Co, et al
Magistrate Judge Carol B. Whitehurst
ORDER OF REMAND
This matter was filed by plaintiff, Kenneth Girod, in the 16th Judicial District
Court for the Parish of Iberia, State of Louisiana. Plaintiff named as defendants,
ACCC Insurance Company (“ACCC”), Great American Insurance Company
(“GAIC”) and Rodric L. Anderson. Citations were not issued and service of process
was not made on any of the defendants. GAIC, however, filed a Notice of Removal
based on diversity jurisdiction stating, “no defendant is a citizen of the State of
Louisiana and the amount in controversy exceeds $75,000.00, exclusive of interest
and costs.” GAIC attached the Declaration of Karen Handel, the company’s Claims
Technical Director, in which Handel stated that GAIC issued an occupational
accident insurance policy to plaintiff and as a result of claims submitted by plaintiff
had paid $1,292.00 in medical expense benefits and $13,936.32 in Temporary Total
disability benefits with $50,053.84 in potential benefits remaining. R. 1, Exh. B.
By Stipulation of Dismissal entered on August 14, 2015, Plaintiff dismissed
GAIC without prejudice as “the only defendant who has made an appearance in this
action.” R. 8. On October 6 and 13, 2015, Plaintiff issued summons to Rodric L.
Anderson and ACCC, respectively. R. 10,11. The record demonstrates that no service
has been returned on Anderson1 , but summons was returned executed as to ACCC on
October 20, 2015. R. 12. Despite the November 10, 2015 deadline for ACCC to file
responsive pleadings, none have been filed into the record.
At the time of removal based on diversity jurisdiction GAIC was the only
defendant in this case. GAIC was dismissed and there are no other defendants in this
case. “[T]he post-removal addition or omission of a party, as opposed to a
post-removal change in an existing party’s circumstances, may indeed destroy
diversity jurisdiction and require remand.” Neff v. Bank of America, N.A., 2015 WL
3651484, at *4 (W.D.Tex.,2015 )(citing Kaufman v. Allstate New Jersey Ins. Co., 561
F.3d 144, 152–53 (3rd Cir.2009) and Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th
Cir.1987)). As in Neff, GAIC’s dismissal from this case amounts to a change in parties
that destroys diversity. The federal statute on post-removal procedure advises “if at
any time before final judgment it appears that the district court lacks subject matter
1
The Court notes that counsel for plaintiff has filed a second motion for
appointment of counsel for Rodric L. Anderson, as an “absentee defendant” under
Louisiana Code of Civil Procedure article 5091. Article 5091 is a Louisiana state law
procedure device which applies only in limited situations, e.g. unrepresented succession
with in rem proceedings; an unpaid curator in lawyer disciplinary proceedings. The Court
denied the first motion indicating that La. CCP art. 5091 does not apply to this federal
case.
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). In this case, the
dismissal of GAIC, the only diverse defendant, requires this court to remand.2 ” Neff v. Bank
of America, N.A., 2015 WL 3651484, at *4. Accordingly,
IT IS ORDERED that this matter shall be remanded to the 16th Judicial
District Court for the Parish of Iberia, State of Louisiana, for lack of subject matter
jurisdiction.
This Order shall be STAYED for fourteen days from the date of issuance. Any
appeal to the District Judge must be filed within fourteen days from the date of this
Order. If an appeal is taken to the District Judge, the Order shall remain stayed until
the appeal is decided. If no timely appeal is filed, the clerk shall remand the action
forthwith.
Signed at Lafayette, Louisiana, on this 19th day of November, 2015.
2
The record contains no evidence as to whether or not ACCC or Anderson satisfy
the residency requirements to be considered diverse.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?