Opinion
CIVIL ACTION NO. 02-1540 SECTION "C"
April 9, 2003
ORDER AND REASONS
This matter comes before the Court on motion to remand filed by the plaintiff and motion to dismiss filed by the State of Louisiana through the Department of Transportation and Development ("DOTD"). Having considered the record, the memoranda of counsel and the law, the Court has determined that remand is appropriate for the following reasons.
Most of the salient facts are undisputed in the record. This matter was removed from state court on the basis of diversity on May 20, 2002. After some discovery was undertaken, the plaintiff amended his complaint to add the DOTD as a party defendant on January 2, 2003. The DOTD received notice of the amendment on January 23, 2003, and filed a motion to dismiss on February 13, 2003 and again on February 19, 2003. The plaintiff first requested remand in an opposition to the motion to dismiss filed on February 20, 2003, and filed a motion to remand in proper form on February 24, 2003. The plaintiff seeks remand based on the fact that the removal is precluded under 28 U.S.C. § 1441(b) because DOTD is a Louisiana entity.
There is no issue that this motion was filed within thirty days of the date on which the DOTD received notice of their joinder.
Section 1441(b) directs that non-federal question removal is allowed "only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought."
While the Fifth Circuit has not addressed the issue presented by these circumstances, there is authority for remand. In Woolf v. Mary Kay Inc., 176 F. Supp.2d 654 (N.D.Tex. 2001), the court recognized the procedural bar against diversity-based removal because of an in-state defendant after claims arising under the original basis for removal, federal question jurisdiction, were dismissed and despite the existence of diversity jurisdiction. "To hold otherwise would eviscerate the meaning of § 1441(b) and allow in-state defendants back door access to the federal courts." Id., 176 F. Supp.2d at 659, fn. 13. In so doing, theWoolf court noted the holding in Trask v. Kasenetz, 818 F. Supp.2d 39, 44 (E.D.N.Y. 1993), where the court assumed the existence of diversity jurisdiction and, because of the in-state defendant, ordered remand "[a]s a matter of economy, convenience, fairness, and comity." See also Devore v. Transport Technology Corp., 914 F. Supp. 355 (W.D.Mo. 1996); Charles Alan Wright, Arthur R. Miller Edward H. Cooper, 14C Federal Practice Procedure § 3739.
The original defendants did not oppose the amendment adding DOTD. Assuming that their opposition to remand can be considered, the Court finds that the amendment would have been deemed appropriate under Section 1447(e) under the analysis set forth in Hensgens v. Deere Co., 833 F.2d 1179 (5th Cir. 1987). "The court should consider the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether plaintiff has been dilatory in asking for amendment, whether plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities. Id., 833 F.2d 1179, 1182 (5th Cir. 1987). None of these factors weigh in favor of the defendants' argument; all support the amendment.
The defendants argue for the dismissal of the DOTD as a person whose presence is not required under Fed.R.Civ.P. 19(a). Specifically, the defendants argue that the mere threat of multiple lawsuits is insufficient to warrant remand. The Court disagrees, and finds that the DOTD is a party which should have been joined if feasible under Rule 19.
All of the equities weigh in favor of remand. The original defendants are also subject to the DOTD's Eleventh Amendment immunity which mandates a state forum; any claim made by any party against the DOTD must be heard in state court. In addition, the plaintiff may face a state court prescription challenge if the DOTD is dismissed. Under these circumstances, justice is best served by having this matter tried in a single forum, and state court provides the only forum in which all parties having an interest can be heard.
Accordingly,
IT IS ORDERED that the motion to remand filed by the plaintiff (Rec. Doc. 25) is GRANTED and the motion to dismiss filed by the State of Louisiana through the Department of Transportation and Development (Rec. Doc. 24) is DENIED. This matter is hereby REMANDED to the 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana, under 28 U.S.C. § 1447(e).