Opinion
Civ. No. 00-0495 SECTION: E/2
April 5, 2000
ORDER AND REASONS
Plaintiffs Mia Young and Ashley Jackson have filed a motion pursuant to 28 U.S.C. § 1447 to remand this case to the Twenty-Second Judicial District Court for the Parish of St. Tammany, State of Louisiana, on the grounds that there is not complete diversity between the parties and the court lacks subject matter jurisdiction. Defendant KLLM, Inc., opposes the motion.
The plaintiffs, the major children of defendant Alvin Jackson, filed suit against their father, who was a truck driver and independent contractor of defendant KLLM for the wrongful death of their mother, Roena Jackson. Alvin Jackson, while attempting to avoid a collision, caused his tractor-trailer rig to jack-knife while his wife, Roena Jackson, was asleep in the sleeping compartment, and the truck flipped, killing her.
After the suit was filed on January 21, 2000, but before the Notice of Removal was filed, Alvin Jackson, the non-diverse defendant, reached a settlement of $1,000,000 with the plaintiffs. On February 21, 2000, KLLM filed a Notice of Removal, noting that while non-diverse defendant Alvin Jackson was initially a party to this action, a consent judgment was entered against him on plaintiffs' claims, and thus the remaining plaintiffs are diverse in citizenship from defendant KLLM and jurisdictional amount is present, in accordance with 28 U.S.C. § 1332. Jackson has a crossclaim against KLLM, presumably for defense and indemnification.
Plaintiff has filed a motion to remand this action on the following grounds: (1) Co-defendant Alvin Jackson has not joined with defendant KLLM in its removal petition; and (2) Co-defendant Alvin Jackson is not diverse with plaintiffs, Mia Young and Ashley Jackson, as they are all domiciled in the State of Louisiana. Subsequent to the filing of the motion to remand, plaintiffs filed a supplemental and amending petition adding B H Transport, Inc., which is represented to be a Louisiana corporation, as a defendant. Defendant KLLM opposes the motion.
Alvin Jackson is no longer a defendant in this action, so his citizenship does not defeat diversity. His cross-claim places him in the position of plaintiff as to KLLM. See, Eikel v. States Marine Lines, Inc., 473 F.2d 959 (5th Cir. 1973) and Sersted v. Midland-Ross Corp., 471 F. Supp. 298 (E.D. Wis. 1979).
As regards the citizenship of B H Transport, its joinder as a defendant cannot be considered in deciding this motion to remand. Diversity jurisdiction is determined at the time of removal, and post-removal amendments cannot divest a federal court of jurisdiction. Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995).
KLLM suggests that B H has been fraudulently joined, but this is an issue that need not be addressed at this time.
The plaintiffs are diverse in citizenship from the sole defendant at the time of removal, KLLM, and the amount in controversy exceeds $75,000.00. Under 28 U.S.C. § 1332, this Court has diversity jurisdiction of this matter.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of plaintiffs Mia Young and Ashley Jackson to remand this action be and is hereby DENIED.
New Orleans, Louisiana, April 5, 2000.