Roe v. Gala Industries, Inc.

Filing 42

ORDER granting in part and taken under advisement in part re 34 RULE 12(b) MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. The Court ORDERS the parties to file evidence or allegations of thecitizenship of Mundy Caribe, LLC on or before September 20, 2012 so that this questionmay be determined and adjudicated.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
WILLIAM ROE,
Plaintiff,
VS.
GALA INDUSTRIES, INC., et al,
Defendants.

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§ CIVIL ACTION NO. C-11-354
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ORDER

Thirteen Defendants have challenged this Court’s jurisdiction to adjudicate the
claims that Plaintiff has brought against them. D.E. 34, 38. The jurisdictional challenge
is GRANTED IN PART and TAKEN UNDER ADVISEMENT IN PART.
This action was originally filed against a single Defendant, Gala Industries, Inc.
D.E. 1. The Plaintiff alleged diversity jurisdiction and Gala admitted that allegation.
D.E. 6.

In his Second Amended Complaint, Plaintiff added the thirteen objecting

Defendants, with allegations that assert citizenship that is, on its face, non-diverse. D.E.
22.
Plaintiff argues that he may join the non-diverse parties because jurisdiction is
determined at the time the action is filed, citing Freeport-McMoRan, Inc. v. KN Energy,
Inc., 498 U.S. 426, 428 (1991). Freeport-McMoRan, however, addressed the change of a
party’s status under Fed. R. Civ. P. 25, in which there is a substitution of a party due to
death, incompetency, or transfer of interest. Grupo Dataflux v. Atlas Global Group, L.P.,
541 U.S. 567, 581, 124 S.Ct. 1920, 1930 (U.S. 2004); Cobb v. Delta Exports, Inc., 186
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F.3d 675, 681 (5th Cir. 1999). It did not address joinder under Fed. R. Civ. P. 19 of new
claims against new parties who are non-diverse. Clearly, if a Plaintiff could simply wait
to join non-diverse parties after the initial filing, there would be no limit to diversity
jurisdiction so long as one defendant was diverse.
Instead, when new non-diverse parties are joined, they defeat diversity
jurisdiction. Doleac v. Michalson, 264 F.3d 470, 477 (5th Cir. 2001). In that event, they
are subject to dismissal under Fed. R. Civ. P. 21, which dismissal cures the jurisdictional
defect. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832, 838, 109 S.Ct. 2218
(1989). Plaintiff has asked that, in the event this Court finds a jurisdictional defect, that
the Court dismiss the non-diverse Defendants. No objection to this relief has been
voiced.
Having found a jurisdictional defect on the face of Plaintiff’s pleading, the Court
GRANTS IN PART the Plaintiff’s request for dismissal of the non-diverse Defendants.
Accordingly, the following Defendants are DISMISSED from this action:
Mundy Maintenance and Services, LLC
Mundy Service Corporation
Mundy Industrial Maintenance, Inc.
Clearwater Loaders, Inc.
Burden Industries, LLC
Industrial Turnaround and Constructions, LLC
(a/k/a Industrial Turnaround and Construction, LLC)
Mundy Support Services, Inc. (a/k/a Mundy Support Services, LLC)
Mundy Operations Support, Inc.
Mundy Industrial Contractors, Inc.
Mundy Technical Services, Inc.
Qualitech Maintenance, Inc.
Mundy Pharmatech, LLC (a/k/a Mundy Pharatech)

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The Plaintiff’s Second Amended Complaint, which purported to join Mundy
Caribe, LLC (a/k/a Mundy Caribe), does not contain a citizenship allegation as to this
Defendant. The Court TAKES UNDER ADVISEMENT the jurisdictional challenge as
to this Defendant. The Court ORDERS the parties to file evidence or allegations of the
citizenship of Mundy Caribe, LLC on or before September 20, 2012 so that this question
may be determined and adjudicated.
ORDERED this 14th day of September, 2012.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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