Opinion
Civil Action No. 02-3179, Section "C" (1)
January 27, 2003
On October 21, 2002, Defendant, Kobelco Construction Machinery America, L.L.C.'s ("Kobelco") filed a notice of removal, alleging fraudulent joinder of Defendant, CLM Equipment Rentals, Inc.'s ("CLM Rentals") in the then pending action in the 17th Judicial District Court for the Parish of Lafource, State of Louisiana, bearing Number 94,673 Division E. Upon consideration of the state filed complaint, it is clear that the amount in controversy requirement is readily met. Yet, there remains the issue of complete diversity of the parties.
Before the Court is Plaintiff's, Universal Contract Services, Inc.'s ("Plaintiff" "Universal") Motion to Remand. Also pending is CLM Rental's Motion to Dismiss pursuant to 12(b)(3), 12(b)(5) and 12(b)(6).
While the above matters were pending, on January 10, 2003, the Magistrate Judge granted Universal's request to amend the complaint, which terminated CLM Rental as a party to this action and substituted as a defendant, CLM Equipment Co., Inc., ("CLM Equipment"), a separate and distinct entity. (Rec. Docs. 20 21). In granting the request to amend, the Magistrate found that Universal had adequately stated a breach of contract claim upon which relief could be granted against "the defendants" in the original compliant. ( See Rec. Doc. 20, p. 6). Further, the Magistrate found that CLM Equipment submitted an invoice for the Kobelco excavator and payment was made to CLM Equipment. ( Id.). Thus, the Magistrate concluded that granting the amendment was not futile. ( Id., p. 5).
The requisite period of time has passed for the parties to appeal the magistrate's decision. See 28 U.S.C. § 636 and LR74.1E. In any event, the Court concurs with the Magistrate that Universal has stated a cause of action for breach of contract upon which relief can be granted against CLM Equipment. Therefore, remand is appropriate because CLM Equipment as the substituted entity for CLM Rentals is not fraudulently joined, and there is a lack of diversity among the parties to this action. See 28 U.S.C. § 1447.
The Court notes that Universal has failed by omission to adequately plead the domicile of CLM Equipment in Paragraph 4 of the Amended Complaint and instead merely provides a Louisiana address. (Rec. Doc. 21). The fact that CLM Equipment maintains an office or place of business in Louisiana is not dispositive of its domicile for diversity purposes. See Epic Tech. Servs., Inc. v. Williams Field Services-Gulf Coast Co., L.P., Civil Action No. 02-1397, 2002 U.S. Dist. LEXIS 20998, at *4 (E.D. La. Oct. 29, 2002). However, in its opposition to Universal's motion to amend, Kobelco admits that CLM Equipment is a non-diverse party. ( See generally Rec. Doc. 18). Moreover, during a telephone conversation with the Court's law clerk on January 24, 2003, counsel for CLM Equipment represented it was in fact a Louisiana corporation.
Accordingly, IT IS ORDERED that CLM Equipment Rentals, Inc.'s Motion to Dismiss is DISMISSED AS MOOT. IT IS FURTHER ORDERED that consistent with the First Amended, Restated and Supplemental Complaint/Petition, Plaintiff's, Universal Contract Services, Inc.'s Motion to Remand is GRANTED.