Hampton v. Praetorian Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

GLENN HAMPTON CIVIL ACTION

VERSUS CASE NO. 18-3528

PRAETORIAN INSURANCE COMPANY, et al. SECTION: “G”(2)

ORDER AND REASONS

Before the Court is Plaintiff Glenn Hampton’s (“Hampton”) Motion to Remand.1 Also

pending before the Court is Hampton’s “Motion for Relief from Judgment Pursuant to Rule 60,

Federal Rules of Civil Procedure.”2 Having considered the motions, the memoranda in support and

opposition, the record, and the applicable law, the Court grants the motion for relief from

judgment, grants the motion to remand, and remands the case to the 24th Judicial District Court

for the Parish of Jefferson, State of Louisiana.

I. Background

A. Factual Background

On January 30, 2018, Hampton filed a Petition for Damages against Praetorian Insurance

Company (“Praetorian”) and the Jefferson Parish Sheriff’s Office (“JPSO”) in the 24th Judicial

District Court for the Parish of Jefferson, State of Louisiana. 3 In the petition, Hampton alleges that

he owned a property that was destroyed in a fire on January 30, 2016.4 According to the petition,

1 Rec. Doc. 44.

2 Rec. Doc. 42.

3 Rec. Doc. 1-1 at 3.

4 Id.

Praetorian insured the property.5 Hampton brings a claim against Praetorian for bad faith

processing of the insurance claim in violation of Louisiana Revised Statute § 22:1892 and

Louisiana Revised Statute § 22:1973.6 Hampton also brings a claim against JPSO for negligent

handling of the investigation.7

B. Procedural Background

On April 3, 2018, Praetorian removed the case to this Court, asserting diversity jurisdiction

pursuant to 28 U.S.C. § 1332.8 Specifically, Praetorian asserted that the parties are diverse because

Hampton is a citizen of Louisiana and Praetorian is an insurance company incorporated in

Pennsylvania with its principal place of business in New York.9 Praetorian acknowledged that

JPSO is not diverse from Hampton because they are both citizens of Louisiana.10 However,

Praetorian asserted that the citizenship of JPSO should not be considered for purposes of

establishing diversity jurisdiction because JPSO is improperly joined as a defendant.11 Finally,

Praetorian alleged that the amount in controversy is clearly established because Hampton asserts

that he is entitled to recover $176,000.00 for damage to the building at issue in this case and

$177,100.00 for damage to the contents of the property at issue and additional living expenses

incurred as a result of the fire.12

5 Id.

6 Id. at 4.

7 Id.

8 Id. at 3.

9 Id.

10 Id.

11 Id. at 4.

12 Id.

On April 9, 2018, Praetorian filed a “Rule 12(b)(6) Motion to Dismiss.”13 The motion was

set for submission on April 25, 2018.14 Hampton did not file any opposition to the motion. On

September 5, 2018, the Court granted the unopposed motion to dismiss, and dismissed Hampton’s

bad faith claim against Praetorian.15

On April 10, 2018, Praetorian filed a counterclaim against Hampton.16 Praetorian brought

a claim against Hampton for fraud and misrepresentation regarding his claim for additional living

expenses.17 Praetorian also sought to recover the money it paid to Wells Fargo Bank NA, the

mortgagee of the property, due to Hampton’s alleged breach of contract.18

The record reflects that Hampton was served with a summons and a copy of the

counterclaim on June 13, 2018.19 Hampton did not file a responsive pleading to the counterclaim

before the July 5, 2018 deadline. On July 12, 2018, Praetorian filed a Motion for Entry of Default

against Hampton.20 On July 16, 2018, the Clerk of Court entered default against Hampton.21 On

July 17, 2018, Hampton filed an answer to the counterclaim, but did not move to set aside the entry

13 Rec. Doc. 5.

14 Id.

15 Rec. Doc. 18.

16 Rec. Doc. 7.

17 Id. at 11–12.

18 Id. at 13–14.

19 Rec. Doc. 11.

20 Rec. Doc. 12.

21 Rec. Doc. 14.

of default.22 On September 12, 2018, Praetorian filed its first Motion for Default Judgment against

Hampton.23 Hampton did not file an opposition.

On September 25, 2018, the Court conducted a status conference with the parties at the

request of Praetorian.24 Praetorian informed the Court that it was waiting to proceed with discovery

until Plaintiff amended the complaint regarding his potential Section 1983 claims against JPSO,

as discussed in the previous scheduling conference held by the Court’s case manager.25 At that

time, Hampton’s counsel Patrick Michael Doherty Breeden, III (“Breeden”) informed the Court

that he delayed in amending the complaint and proceeding with discovery because he intended to

withdraw as counsel of record.26 The Court advised Breeden that if he intended to withdraw, he do

so by October 25, 2018 so as not to further delay these proceedings.27 Breeden never moved to

amend the complaint or moved to withdraw from the case.

On January 7, 2019, the Court denied Praetorian’s first Motion for Entry of Default

Judgment without prejudice.28 Considering all of the circumstances at issue in the case, the Court

declined to exercise its discretion to enter a default judgment at that time.29 However, the Court

cautioned Breeden that he could not continue to delay these proceedings.30 Therefore, the Court

22 Rec. Doc. 16.

23 Rec. Doc. 19.

24 Rec. Doc. 22.

25 Id. at 1.

26 Id.

27 Id.

28 Rec. Doc. 24.

29 Id. at 10.

30 Id.

stated that if Hampton, represented by Brenden, failed to move to set aside the entry of default

within 14 days of the order, Praetorian was granted leave to refile a motion seeking a default

judgment.31

On January 23, 2019, after more than 14 days had passed and Breeden had not moved to

set aside the entry of default, Praetorian filed a second Motion for Default Judgment.32 That same

day, Praetorian filed a Motion requesting that a status conference be set to discuss how the case

will proceed with respect to the Motion for Entry of Default Judgment.33 Praetorian also filed a

Motion Requesting a Hearing on its Motion for Default Judgment if the Court determined that a

hearing was necessary.34 Breeden did not move to set aside the entry of default and did not filed a

response to any of the pending motions.

On February 14, 2019, the Court entered a default judgment against Hampton and in favor

of Praetorian.35 First, the Court considered jurisdiction.36 The Court found that it held subject-

matter jurisdiction under 28 U.S.C. § 1332 because diversity of citizenship exists between

Praetorian, a corporation incorporated under the laws of the State of Pennsylvania with its principal

place of business in New York, and Hampton, a citizen of Louisiana, and the amount in

controversy exceeds $75,000.37 The Court held that it need not consider the citizenship of JPSO

31 Id.

32 Rec. Doc. 25.

33 Rec. Doc. 26.

34 Rec. Doc. 27.

35 Rec. Doc. 30.

36 Id. at 9–10.

37 Id.

for the purposes of diversity jurisdiction as Hampton fraudulently joined JPSO in this action.38

The Court noted that Hampton had not opposed Praetorian’s assertion that Hampton had

improperly joined JPSO or moved to remand the case to state court.39 Therefore, the Court found

that JPSO was improperly joined as a defendant in this matter because Hampton did not allege any

breach of a duty JPSO owed to him.40 Then, taking Praetorian’s well-pleaded facts as true, the

Court held that Praetorian sufficiently demonstrated its claim for fraudulent misrepresentation

against Hampton with respect to his claim for additional living expenses.41 The Court awarded

Praetorian $189,675.97 plus interest.42

On April 8, 2019, Praetorian filed a Motion for Summary Judgment on all remaining claims

in Hampton’s suit against Praetorian.43 The motion was set for submission on April 24, 2019.

Pursuant to Local Rule 7.5, opposition to a motion must be filed eight days before the noticed

submission date. Hampton, while represented by Breeden, did not file any opposition to the

motion.

On August 20, 2019, the Court issued an Order to Show Cause ordering Patrick Michael

Doherty Breeden, III, attorney of record for Plaintiff, to appear before the Court on August 28,

2019 at 9:00 AM to show cause why he should not be held in contempt for failure to withdraw or

prosecute this case.44 Following the hearing, the Court issued an order holding Breeden in

38 Id. at 9–10 n.62.

39 Id.

40 Id.

41 Id. at 18.

42 Id.

43 Rec. Doc. 31-2.

44 Rec. Doc. 34.

contempt for failing to comply with the Court’s orders.45 The Court referred the matter to the

Eastern District of Louisiana’s Lawyers’ Disciplinary Enforcement Committee for further

investigation and, if warranted, discipline, related to Breeden’s repeated failure to follow this

Court’s order to prosecute the case or withdraw as counsel of record.46

On August 26, 2019, Hampton filed a Motion to Enroll as Counsel of Record, seeking to

enroll David A. Binegar (“Binegar”) and Tiffany R. Christian (“Christian”) as new counsel on his

behalf in this case.47 In the motion, Hampton claimed that his previous counsel, Breeden,

absconded without informing plaintiff of the proceedings before this Court, or that Breeden

intended to withdraw, or that Breeden intended not to oppose any of Praetorian’s dispositive

motions.48 On August 29, 2019, the Court granted Hampton’s Motion to Enroll and enrolled

Binegar and Christian as counsel of record on behalf of Hampton.49 On August 30, 2019, the Court

issued an order giving Hampton thirty days to file additional briefing addressing any jurisdictional

issues in the case, the entry of default judgment, and Praetorian’s Motion for Summary Judgment.50

On September 27, 2019, the Court granted Hampton an additional 14 days to file the briefing.51

On October 11, 2019, Hampton filed the “Motion for Relief from Judgment Pursuant to

Rule 60, Federal Rules of Civil Procedure.”52 On November 8, 2019, Praetorian filed an opposition

45 Rec. Doc. 44.

46 Id.

47 Rec. Doc. 35.

48 Id. at 1.

49 Rec. Doc. 38.

50 Rec. Doc. 39.

51 Rec. Doc. 41.

52 Rec. Doc. 42.

to the motion.53 On October 16, 2019, Hampton filed the instant motion to remand.54 On November

11, 2019, Praetorian filed an opposition to the motion to remand.55

II. Parties’ Arguments

A. The Motion to Remand

1. Hampton’s Arguments in Support of the Motion to Remand

In the motion to remand, Hampton asserts that the Court should remand this case to state

court because Praetorian cannot prove that JPSO was improperly joined.56 In support, Hampton

points to the allegations against JPSO in the Petition for Damages.57 In the Petition, Hampton

alleged that JPSO did nothing to further the investigation into the fire and “acted negligently in its

handling of the investigation.”58 Hampton asserts that JPSO’s delay in handling the official

investigation also delayed “the resolution of Hampton’s insurance claim—right to the prescription

deadline for his claim.”59 According to Hampton, “Praetorian ultimately denied the claim and

Hampton was eventually arrested—but not charged—for suspicion of arson.”60 Hampton states

that “the nexus, if any, between the official investigation of the JPSO and the ongoing insurance

investigation is currently unknown.”61 However, “Hampton asserts that based upon the facts

53 Rec. Doc. 50.

54 Rec. Doc. 44.

55 Rec. Doc. 52.

56 Rec. Doc. 44-2 at 6.

57 Id. at 7.

58 Id. at 7–8.

59 Id. at 8.

60 Id.

61 Id.

alleged in his original state court Petition, Hampton could recover against the JPSO and/or its

employees.”62

Hampton notes that “Praetorian only asserts that Hampton cannot recover for ordinary

negligence but only for gross negligence.”63 According to Hampton, a trier of fact could find gross

negligence by JPSO based on the facts alleged in the Petition.64 Accordingly, Hampton asserts that

this matter should be remanded.65 Alternatively, Hampton contends that the Court should permit

Hampton to perform discovery for the limited purpose of determining whether a cause of action

can be asserted against JPSO for gross negligence.66

2. Praetorian’s Arguments in Opposition to the Motion to Remand

In opposition, Praetorian argues that removal was proper because Hampton improperly

joined JPSO.67 According to Praetorian, JPSO was improperly joined for three separate and

independent reasons.68 First, Praetorian asserts that JPSO is not a legal entity capable of being

sued.69 Second, Praetorian contends that JPSO is statutorily immune from liability under Louisiana

Revised Statute § 9:2798.1.70 Third, Praetorian argues that Hampton failed to plead sufficient facts

to establish that JPSO breached a duty owed to Hampton.71 Accordingly, Praetorian argues that

62 Id.

63 Id.

64 Id.

65 Id.

66 Id.

67 Rec. Doc. 52 at 1.

68 Id. at 3.

69 Id.

70 Id.

71 Id.

the motion to remand should be denied.72

First, Praetorian asserts that JPSO is not a legal entity capable of being sued under

Louisiana law.73 Praetorian contends that the proper party defendant is either the elected Sheriff

himself, or the individual deputies who Hampton claims are responsible for his injuries and

damages.74 Additionally, Praetorian notes that Hampton has not sought leave to amend the Petition

to name a proper defendant.75 Therefore, Praetorian argues that this Court is required to dismiss

the only non-diverse defendant in the suit under a Rule 12(b)(6) analysis and conclude that

Hampton improperly joined JPSO as a defendant.76

Second, Praetorian contends that JPSO is statutorily immune from liability under Louisiana

Revised Statute § 9:2798.1 because the acts, errors, or omissions of JPSO of which Plaintiff

complains are either policymaking or discretionary acts within the course and scope of JPSO’s

lawful powers and duties.77 Praetorian cites a Louisiana appellate court decision holding that an

allegation that a law enforcement agency failed to act in a particular way during an active

investigation “clearly invokes the permissible exercise of policy decisions such as how to allocate

and employ resources and manpower, and thus statutory immunity clearly applies to defeat

plaintiffs’ claim.”78 Additionally, Praetorian notes that under Louisiana law “only the most

egregious conduct by parish agents, employees or representatives that exhibits an active desire to

72 Id.

73 Id.

74 Id. at 7.

75 Id. at 4.

76 Id. at 7.

77 Id.

78 Id. at 8 (citing Sarasino v. State Dept. of Public Safety and Corrections, et al., 16-408 at p. 9 (La. App. 5 Cir.

3/15/17); 215 So. 3d 923, 930).

harm, or a callous indifference to the risk of potential harm from flagrantly bad conduct,” will rise

to the level of gross negligence necessary to survive discretionary immunity.79 Praetorian argues

that Plaintiff’s conclusory allegations against JPSO do not begin to approach the “most egregious

conduct” threshold required to establish a cause of action against JPSO.80

Third, Praetorian argues that Hampton failed to plead sufficient facts to establish that JPSO

breached a duty owed to Hampton.81 Praetorian notes that the Petition states simply that, at all

relevant times, JPSO was “investigat[ing] the ‘cause’ of the fire that destroyed [Hampton’s] home.

This investigation is still open and [t]here is no indication that the Sheriff’s office has done

anything in furtherance of the investigation,” and JPSO “acted negligently in its handling of the

investigation.”82 Praetorian asserts that these allegations consist precisely of the “threadbare

recitals of elements of a cause of action, supported by mere conclusory statements” and are not

sufficient to state a claim against JPSO.83 Therefore, Praetorian urges the Court to deny the motion

to remand.84

B. The Motion for Relief from Judgment

1. Hampton’s Arguments in Support of the Motion for Relief from Judgment

Hampton moves the Court to set aside both the Order granting Praetorian’s Rule 12(b)(6)

Motion to Dismiss and the Order granting Praetorian’s Motion for Default Judgment pursuant to

79 Id. at 8–9 (quoting Haab v. E. Bank Consol. Special Serv. Fire Prot. Dist. of Jefferson Parish, 13-954 (La. App. 5

Cir. 5/28/14); 139 So. 3d 117).

80 Id. at 9.

81 Id.

82 Id. at 10.

83 Id.

84 Id. at 11.

Federal Rule of Civil Procedure 60(b).85 Hampton argues he is entitled to relief pursuant to Rule

60(b)(6) because his former attorney committed gross negligence when he failed to litigate the

case on Hampton’s behalf and failed to inform Hampton of the proceedings.86 Hampton contends

that this motion is timely because he was unaware of the default judgment until it appeared on his

credit report, and he immediately sought advise of new counsel who filed this motion as soon as

practicable thereafter.87 He argues that the preference for adjudications on the merits should

prevail, and notes that the default judgment may impact resolution of the pending motion for

summary judgment.88 Furthermore, he asserts that there is no assurance he could recover against

Breeden for legal malpractice.89 Finally, he contends there is a considerable question as to whether

Praetorian is entitled to the relief it sought.90 Accordingly, Hampton moves the Court to set aside

its prior orders.91

2. Praetorian’s Arguments in Opposition to the Motion for Relief from Judgment

In opposition, Praetorian argues that the motion should be denied because it was not filed

within a reasonable time.92 Praetorian notes that Hampton has admitted he was served with

Praetorian’s counterclaim on June 13, 2018.93 Praetorian asserts that Hampton did very little to

85 Rec. Doc. 42-1 at 1.

86 Id. at 13–14.

87 Id. at 13.

88 Id. at 13–14.

89 Id. at 14.

90 Id.

91 Id. at 15.

92 Rec. Doc. 50 at 3.

93 Id.

keep abreast of the developments in the case, and argues that Hampton could have taken steps to

check the progress of the litigation after his attorney became unresponsive.94 Additionally,

Praetorian asserts that Hampton has not demonstrated extraordinary circumstances to justify relief

under Rule 60(b)(6).95 Praetorian contends that “a number of federal circuits have declined to

afford relief under Rule 60(b)(6) based on the assertion of the gross negligence of a party’s

counsel.”96 Therefore, Praetorian argues that the motion should be denied because Hampton has

not met his burden of showing that this case involves the sort of unusual and extreme situation

where principles of equity mandate relief.97

III. Legal Standard

A. Legal Standard on a Motion to Dismiss based on Improper Joinder

A defendant may remove a state civil court action to federal court if the federal court has

original jurisdiction over the action.98 A federal court has subject matter jurisdiction over an action

“where the matter in controversy exceeds the sum or value of $75,000” and the action “is between

citizens of different states.”99 The removing party bears the burden of demonstrating that federal

jurisdiction exists.100 Subject matter jurisdiction is fixed at the time of removal, and it cannot be

eliminated by events that occur after removal.101

94 Id. at 5.

95 Id.

96 Id. at 6.

97 Id. at 10.

98 28 U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002).

99 28 U.S.C. § 1332(a)(1).

100 See Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

101 Doddy v. Oxy USA, Inc., 101 F.3d 448, 456 (5th Cir. 1996) (“We have consistently held that if jurisdiction exists

at the time an action is commenced, such jurisdiction may not be divested by subsequent events.”).

In assessing whether removal was appropriate, the Court is guided by the principle,

grounded in notions of comity and the recognition, that federal courts are courts of limited

jurisdiction and that “removal statute[s] should be strictly construed in favor of remand.”102

Remand is appropriate if the Court lacks subject matter jurisdiction, and “doubts regarding whether

removal jurisdiction is proper should be resolved against federal jurisdiction.”103 Moreover, 28

U.S.C. § 1447(c) states: “If at any time before final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.”

In this case, complete diversity of citizenship is lacking on the face of the state court

petition because Hampton and JPSO are citizens of Louisiana. Despite the presence of a non-

diverse defendant in this lawsuit, Praetorian argues that this Court has diversity jurisdiction over

this matter because Hampton has improperly joined JPSO in order to defeat diversity jurisdiction.

“The fraudulent joinder doctrine ensures that the presence of an improperly joined, non-

diverse defendant does not defeat federal removal jurisdiction premised on diversity.”104 The party

asserting improper joinder “bears a heavy burden of proving that joinder of the in-state party was

improper.”105 The Fifth Circuit has long recognized two methods of fraudulent joinder: (1) actual

fraud in the pleading of jurisdictional facts, and (2) the inability of the plaintiffs to plead a cause

of action against the non-diverse defendants in state court.106 In this case, Praetorian alleges that

JPSO is improperly joined because Plaintiffs have not pled a viable cause of action against JPSO.

102 Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

103 Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d 1160,

1164 (5th Cir. 1988)).

104 Borden v. Allstate Ins. Co., 589 F.3d 168, 171 (5th Cir. 2009) (internal citations omitted).

105 Smallwood v. Illinois Central Railroad Co., 385 F.3d 568, 574 (5th Cir. 2004).

106 Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 532 (5th Cir. 2006) (internal citations omitted). The Fifth

Circuit also refers to “fraudulent joinder” as “improper joinder.” See Melder v. Allstate Corp., 404 F.3d 328, 329

In Smallwood v. Illinois Central Railroad Co., the Fifth Circuit stated that “the test for

fraudulent joinder is whether the defendant has demonstrated that there is no possibility of

recovery by the plaintiff against an in-state defendant, which stated differently means that there is

no reasonable basis for the district court to predict that the plaintiff might be able to recover against

an in-state defendant.”107 District courts may assess whether a plaintiff has “a reasonable basis of

recovery under state law” in either of two ways.108 First, “[t]he court may conduct a Rule 12(b)(6)-

type analysis, looking initially at the allegations of the complaint to determine whether the

complaint states a claim under state law against the in-state defendant.”109 Second, in rare cases,

if “a plaintiff has stated a claim, but has misstated or omitted discrete facts that would determine

the propriety of joinder . . . the district court may, in its discretion, pierce the pleadings and conduct

a summary inquiry.”110

If a court decides to “pierce the pleadings” when assessing a claim of improper joinder, it

may “consider summary judgment-type evidence in the record, but must also take into account all

unchallenged factual allegations, including those alleged in the complaint, in the light most

favorable to the plaintiff,” and resolve “[a]ny contested issues of fact and any ambiguities of state

law” in the plaintiff’s favor.111 However, a court does not assess “whether the plaintiff will actually

or even probably prevail on the merits of the claim,” but only determines whether there is “a

(5th Cir. 2005). However, the term “fraudulent joinder” is still used in many Fifth Circuit cases. See, e.g., Crockett,

436 F.3d 532. In this Order, the Court will use both terms.

107 Smallwood, 385 F.3d at 573.

108 Id.

109 Id.

110 Id.

111 Travis v. Irby, 326 F.3d 644, 648–49 (5th Cir. 2003).

possibility that the plaintiff might do so.”112 In other words, where courts choose to pierce the

pleadings, the party asserting fraudulent joinder must provide evidence that “negate[s] the

possibility” that the non-diverse party may be held liable.113 The Fifth Circuit has stated that

district courts should consider summary judgment-type evidence at this stage of the proceedings

only in those cases, “hopefully few in number, in which a plaintiff has stated a claim, but has

misstated or omitted discrete facts that would determine the propriety of joinder.”114 Even in such

cases, the district court’s decision to pierce the pleadings and conduct a summary inquiry is within

its discretion.115

“To determine whether jurisdiction is present for removal,” the Fifth Circuit instructs that

courts must “consider the claims in the state court petition as they existed at the time of

removal.”116 “[A] complaint amended post-removal cannot divest a federal court of

jurisdiction.”117 As the Fifth Circuit has explained:

The rationale for determining removal jurisdiction on the basis of claims in the state

court complaint as it exists at the time of removal is obvious. Without such a rule,

disposition of the issue would never be final, but would instead have to be revisited

every time the plaintiff sought to amend the complaint to assert a new cause of

action against the nondiverse defendant, all at considerable expense and delay to

the parties and the state and federal courts involved. Limiting the removal

jurisdiction question to the claims in the state court complaint avoids that

unacceptable result, and permits early resolution of which court has jurisdiction, so

that the parties and the court can proceed with, and expeditiously conclude, the

litigation.118

112 Guillory v. PPG Indus., Inc., 434 F.3d 303, 308–09 (5th Cir. 2005).

113 Travis, 326 F.3d at 650.

114 Smallwood, 385 F.3d at 573.

115 Id.

116 Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Cavallini v. State Farm

Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)).

117 Cavallini, 44 F.3d at 264 (citing Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939)).

118 Id.

“[P]ost-removal filings may be considered only to the extent they amplify or clarify facts alleged

in the state-court complaint, with new claims or theories of recovery disregarded.”119 If the Court

“determines that a nondiverse party has been improperly joined to defeat diversity, that party must

be dismissed without prejudice.”120

B. Legal Standard on a Rule 60(b) Motion

Federal Rule of Civil Procedure 60 regulates the procedures by which a party may obtain

relief from a final judgment. Rule 60(b) provides that a court “may relieve a party from a final

judgment, order, or proceeding” for any of the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect;

(2) Newly discovered evidence that, with reasonable diligence, could not have

been discovered in time to move for a new trial under Rule 59(b);

(3) Fraud (whether previously called intrinsic or extrinsic), misrepresentation,

or misconduct by any opposing party;

(4) The judgment is void;

(5) The judgment has been satisfied, released, or discharged; it is based on an

earlier judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable; or

(6) Any other reason that justifies relief.121

“Motions under Rule 60(b) are directed to the sound discretion of the district court, and its denial

of relief upon such motion will be set aside on appeal only for abuse of that discretion.”122 “A

motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3)

no more than a year after the entry of the judgment or order or the date of the proceeding.”123

119 Akerblom v. Ezra Holdings Ltd., 509 F. App'x 340, 344 (5th Cir. 2013), abrogated on other grounds by Int'l

Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193 (5th Cir. 2016).

120 Int'l Energy Ventures Mgmt., 818 F.3d at 209.

121 Fed. R. Civ. P. 60(b).

122 Seven Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).

123 Fed. R. Civ. P. 60(c)(1).

IV. Analysis

A. Motion to Remand

In the Notice of Removal, Praetorian asserts that JPSO was improperly joined as a

defendant in this matter.124 In the Motion to Remand, Hampton asserts that the Court should

remand this case to state court because Praetorian cannot prove that JPSO was improperly

joined.125 Hampton asserts that he could recover against JPSO and/or its employees for gross

negligence because their delay in handling the official investigation also delayed the resolution of

his insurance claim.126 Alternatively, Hampton contends that the Court should permit Hampton to

perform discovery for the limited purpose of determining whether a cause of action can be asserted

against JPSO for gross negligence.127 In opposition, Praetorian argues JPSO was improperly joined

for three separate and independent reasons: (1) JPSO is not a legal entity capable of being sued;

(2) JPSO is statutorily immune from liability under Louisiana Revised Statute § 9:2798.1; and (3)

Hampton failed to plead sufficient facts to establish that JPSO breached a duty owed to

Hampton.128 Accordingly, the Court addresses each of these issues.

1. Whether Hampton Can Recover Against JPSO

Praetorian correctly cites Louisiana appellate court cases holding that “a Sheriff’s Office

is not a legal entity capable of being sued.”129 Additionally, the United States Court of Appeals for

124 Rec. Doc. 1 at 3–4.

125 Rec. Doc. 44-2.

126 Id. at. 8.

127 Id.

128 Rec. Doc. 52 at 3.

129 Ferguson v. Stephens, 623 So. 2d 711, 714 (La. App. 4 Cir. 1993) (citing Jenkins v. Jefferson Parish Sheriff's

Office, 385 So. 2d 578 (La. App. 4 Cir. 1980), reversed in part on other grounds, 402 So. 2d 669 (La. 1981). See also

Liberty Mutual Ins. Co. v. Grant Parish Sheriff's Department, 350 So. 2d 236 (La. App. 3 Cir. 1977).

the Fifth Circuit has recognized that under Louisiana law “although a sheriff’s office is not a legal

entity capable of being sued, Louisiana sheriffs are amenable to suit.”130 However, in Riley v.

Evangeline Parish Sheriff’s Office, the Louisiana Supreme Court held that the plaintiff’s failure to

specifically name the sheriff as a defendant in the suit did not bar recovery against the sheriff in

his official capacity.131 The Louisiana Supreme Court noted that the sheriff, through his attorney,

fully litigated the claims raised in the petition.132 Therefore, because the parties “[c]learly . . .

understood that plaintiff's suit against the ‘Sheriff’s Office’ raised claims against the sheriff in his

official capacity,” the Louisiana Supreme Court held that the plaintiff could enforce the judgment

against the sheriff in his official capacity.133 Accordingly, while the JPSO is not a legal entity

capable of being sued under Louisiana law, the Jefferson Parish Sheriff is amenable to suit. Unlike

Riley, where the sheriff participated in the case, no representative of JPSO has ever participated in

this case, and the record indicates that JPSO was never served. Nevertheless, because the Louisiana

Supreme Court has held that a plaintiff can enforce a judgment against the sheriff when only the

sheriff’s office is named as a defendant, there is a possibility that Hampton could recover against

JPSO. Accordingly, the Court cannot conclude that JPSO was improperly joined on that basis.

2. Whether Hampton has Stated a Claim Against JPSO

Praetorian contends that Hampton failed to plead sufficient facts to state a negligence claim

against JPSO. Louisiana courts generally employ a duty-risk analysis, whereby a plaintiff must

establish the following five elements: “(1) the defendant had a duty to conform his conduct to a

130 Cozzo v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 283 (5th Cir. 2002).

131 Riley v. Evangeline Par. Sheriff's Office, 637 So. 2d 395, 395 (La. 1994).

132 Id.

133 Id.

specific standard (the duty element); (2) the defendant’s conduct failed to conform to the

appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause in

fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct

was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element);

and (5) the actual damages (the damages element).”134

In the Petition, Hampton alleges that JPSO was investigating “the cause of the fire that

destroyed Mr. Hampton’s home. This investigation is still open and [t]here is no indication that

the Sheriff’s office has done anything in furtherance of its investigation.”135 Hampton also alleges

that JPSO “acted negligently in its handling of the investigation” and is liable for all damages

Hampton has incurred.136 In the motion to remand, Hampton asserts that JPSO’s delay in handling

the official investigation also delayed “the resolution of Hampton’s insurance claim—right to the

prescription deadline for his claim.”137 According to Hampton, “Praetorian ultimately denied the

claim and Hampton was eventually arrested—but not charged—for suspicion of arson.”138

Hampton states that “the nexus, if any, between the official investigation of the JPSO and the

ongoing insurance investigation is currently unknown.”139 Hampton alleges that JPSO had a duty

to investigate the cause of the fire and breached that duty by failing to perform the investigation in

a timely manner. These allegations are sufficient to state a negligence claim against JPSO.140

134 Audler v. CBC Innovis Inc., 519 F.3d 239, 249 (5th Cir. 2008) (internal citations omitted).

135 Rec. Doc. 1-1 at 4.

136 Id.

137 Rec. Doc. 44-2 at 8.

138 Id.

139 Id.

140 In the February 14, 2019 Order granting Praetorian’s Motion for Default Judgment, the Court found that JPSO was

fraudulently joined as a defendant in this matter because Hampton did not allege any breach of a duty JPSO owed to

him. See Rec. Doc. 30 at 9–10, n. 62. At that time, Hampton had not opposed Praetorian’s assertion that Hampton had

3. Whether JPSO is Immune from Liability

Finally, Praetorian asserts that JPSO is statutorily immune from liability under Louisiana

Revised Statute § 9:2798.1. Section 9:2798.1(B) protects public entities from liability for

discretionary decisions by providing immunity when performing “their policy-making or

discretionary acts when such acts are within the course and scope of their lawful powers and

duties.”141 The “discretionary function” immunity provided by Section 9:2798.1(B) is an

affirmative defense.142 Louisiana courts have consistently held that “the application of this

affirmative defense is a question of fact to be determined through a trial”143 or on a motion for

summary judgment when there are no material facts in dispute.144 The defendant bears the burden

to prove the application of the affirmative defense by a preponderance of the evidence.145

The Fifth Circuit has “held that should the defendant establish the existence of an

affirmative defense to the plaintiff's state law claims, ‘it necessarily follows that joinder was

fraudulent, and the district court properly exercised its removal jurisdiction.’”146 “However, if

not stated a claim against JPSO or moved to remand the case to state court. However, upon further review, the Court

finds this determination was in error. Praetorian argues that Hampton’s allegations against JPSO are too conclusory

to state a claim that survives review under Twombly. The petition could certainly benefit from some additional facts

to describe what happened during JPSO’s investigation. However, it conveys that there was a fire, and JPSO was

potentially negligent because it failed to investigate the cause of the fire. These allegations are adequate to provide a

short and plain statement of a negligence claim under state law.

141 La. Rev. Stat. § 9:2798.1.

142 White v. City of New Orleans, 2000-2683 (La. App. 4 Cir. 1/9/01); 806 So. 2d 675, 677.

143 Populis v. State Dep't of Transportation & Dev., 16-655 (La. App. 5 Cir. 5/31/17); 222 So. 3d 975, 981 (citing

Banks v. Parish of Jefferson, 12-215 (La. App. 5 Cir. 1/30/13); 108 So. 3d 1208, 1214); Murphy Cormier General

Contractor, Inc. v. State, Dep’t of Health & Hospitals, 2012-1000 (La. App. 3 Cir. 5/22/13); 114 So. 3d 567, 599;

Johnson v. Orleans Parish School Bd., 2006-1223 (La. App. 4 Cir. 1/30/08); 975 So. 2d 698, 710.

144 Mercer v. Lowe, 51,333 (La. App. 2 Cir. 4/5/17); 217 So. 3d 1235, 1238; Sarasino v. State Dept. of Public Safety

and Corrections, et al., 16-408 (La. App. 5 Cir. 3/15/17); 215 So. 3d 923, 930

145 Johnson, 975 So. 2d at 710.

146 Parkway Imaging Ctr., Inc. v. Home Life Fin. Assur. Corp., 198 F.3d 240, at *6 (5th Cir. 1999) (citing Sid

Richardson Co. v. Interenergy Resources, Ltd., 99 F.3d 746, 753 (5th Cir. 1996)).

there exists any possibility that the plaintiff might survive the affirmative defense,” the case must

be remanded to state court.147

The Louisiana Supreme Court has adopted a two-step inquiry to analyze the application of

immunity under Section 9:2798.1.148 “First, a court must determine whether a statute, regulation

or policy specifically prescribes the course of action for the employee or agency to follow.”149 If

so, no discretion on the part of the employee or agency is involved, and immunity does not apply.150

“If a court determines discretion is involved, the court must then determine whether that discretion

‘is the kind which is shielded by the exception, that is, one grounded in social, economic or political

policy.’”151 Thus, “[t]he exception protects the government from liability only at the policy making

or ministerial level, not at the operational level.”152

Praetorian contends that discretionary function immunity applies to a law enforcement

agency’s failure to act in a particular way during an active investigation because such a decision

invokes the permissible exercise of policy decisions.153 In support, Praetorian cites Sarasino v.

State Department of Public Safety and Corrections, a Louisiana Fifth Circuit Court of Appeal case

holding that the sheriff was entitled to immunity on a “failing to properly protect claim, whether

it consisted of a decision not to place a guard around a possible intended victim, or how often to

147 Id.

148 Simeon v. Doe, 618 So. 2d 848, 852–53 (La. 1993); Fowler v. Roberts, 556 So. 2d 1 (La. 1989).

149 Mercer, 217 So. 3d at 1238.

150 Id.

151 Id. (quoting Fowler, 556 So. 2d at 15).

152 Sarasino, 215 So. 3d at 930.

153 Rec. Doc. 52 at 8.

search for someone who had threatened others.”154 The court reasoned that the decision “clearly

invokes the permissible exercise of policy decisions such as how to allocate and employ resources

and manpower, and thus statutory immunity clearly applies to defeat plaintiffs’ claim. . . .”155 On

the contrary, in Martin v. State, Department of Public Safety and Corrections, the Louisiana

Second Circuit Court of Appeal held that a state-trooper was not entitled to immunity from liability

in a defamation suit arising out of police news release that mistakenly identified the plaintiff as the

driver of the vehicle and also stated that he was suspected of using alcohol, because the trooper

had a statutory, non-discretionary duty to investigate the accident.156

Hampton claims that JPSO negligently investigated the cause of the fire at his property.

Louisiana Revised Statute § 40:1566 provides that “the sheriff of each parish . . . shall investigate

the cause, origin, and circumstances of every fire occurring within their respective jurisdictions.

This investigation shall specifically determine, insofar as possible, the cause of and circumstances

surrounding the fire.” If JPSO had a statutory duty to investigate the fire, the investigation would

not qualify as a discretionary act subject to the immunity provisions of Louisiana Revised Statute

§ 9:2798.1 . Therefore, there is a possibility that Hampton might survive the affirmative defense

because Louisiana Revised Statute § 9:2798.1 may not bar recovery against JPSO in this case.

Furthermore, even if discretionary function immunity applies, Hampton argues that JPSO

could be held liable under a theory of gross negligence. “Where a public entity exercises its

policymaking or discretionary duties, immunity applies in the absence of gross negligence.”157

154 Sarasino, 215 So. 3d at 930.

155 Id.

156 47,647 (La. App. 2 Cir. 1/16/13); 109 So. 3d 442, 450.

157 Sarasino v. State Dept. of Public Safety and Corrections, et al., 16-408 (La. App. 5 Cir. 3/15/17); 215 So. 3d 923,

930.

“Gross negligence has been defined as the want of even slight care and diligence; the want of

diligence which even careless men are accustomed to exercise; the entire absence of care; utter

disregard of the dictates of prudence, amounting to complete neglect of the rights of others; the

extreme departure from ordinary care; or, the want of even scant care.”158

Praetorian argues that the allegations against JPSO in the Petition do not begin to approach

the “most egregious conduct” threshold required to establish gross negligence.159 However, the

Court need not reach this issue. Discretionary function immunity is an affirmative defense, and the

burden of establishing this defense rests on the defendant. Hampton would only be required to

establish gross negligence if discretionary function immunity applies.

Praetorian has offered no evidence on the issue of immunity, and the applicability of the

defense is not evident from the face of the Petition.160 Indeed, the Court finds that there is a

reasonable basis for predicting “that the plaintiff might be able to recover” against JPSO.161 As the

party who removed the case, Praetorian bears the heavy burden of proving that joinder of JPSO

was improper.162 On a motion to remand based on improper joinder, the Court cannot assess

“whether the plaintiff will actually or even probably prevail on the merits of the claim,” but only

determines whether there is “a possibility that the plaintiff might do so.”163 Furthermore, all

“doubts regarding whether removal jurisdiction is proper should be resolved against federal

158 Id. (internal citations omitted).

159 Rec. Doc. 52 at 9.

160 Anh Ngoc Vo v. Chevron U.S.A., Inc., No. 12-1341, 2012 WL 6002759, at *7 (E.D. La. Nov. 30, 2012) (Engelhardt,

J.) See also Bonin v. Ackal, No. 17-0637, 2018 WL 522716, at *2 (W.D. La. Jan. 23, 2018) (declining to rule on a

discretionary function immunity defense at the motion to dismiss stage).

161 Smallwood, 385 F.3d at 573.

162 Id. at 574.

163 Guillory, 434 F.3d at 308–09.

jurisdiction.”164 Because it is not clear that Hampton will be unable to prevail on the claims against

JPSO, the Court finds that this matter must be remanded to state court.

B. Rule 60(b) Motion

Hampton moves the Court to set aside both the Order granting Praetorian’s Rule 12(b)(6)

Motion to Dismiss and the Order granting Praetorian’s Motion for Default Judgment pursuant to

Federal Rule of Civil Procedure 60(b).165 Hampton argues he is entitled to relief pursuant to Rule

60(b)(6) because his former attorney committed gross negligence when he failed to litigate the

case on Hampton’s behalf and failed to inform Hampton of the proceedings.166 “Relief cannot be

had under clause (6) if it would have been available under the earlier clauses.”167 However, it is

permissible for the Court to construe a motion made pursuant to one clause of Rule 60 under

another clause.168

A motion for relief under Rule 60(b)(4) allows a party to receive relief from a final

judgment, order, or proceeding if the underlying judgment is void. The Fifth Circuit has recognized

two circumstances in which a judgment may be set aside under Rule 60(b)(4): (1) if the court

lacked subject matter or personal jurisdiction; and (2) if the court acted in a manner inconsistent

with due process of law.169 “When . . . the motion is based on a void judgment under Rule 60(b)(4),

the district court has no discretion—the judgment is either void or it is not.”170 For the reasons

164 Acuna, 200 F.3d at 339.

165 Rec. Doc. 42-1 at 1.

166 Id. at 13–14.

167 Hess v. Cockrell, 281 F.3d 212, 215 n.11 (5th Cir. 2002) (quoting Wright and Miller, Federal Practice and

Procedure, § 2264 at 362).

168 Id. at 215.

169 Carter v. Fenner, 136 F.3d 1000, 1006 (5th Cir. 1998).

170 Recreational Props., Inc. v. Sw. Mortgage Serv. Corp., 804 F.2d 311, 314 (5th Cir. 1986) (citations omitted).

discussed above, the Court lacks subject matter jurisdiction over this case. Accordingly, the Court

must set aside both the Order granting Praetorian’s Rule 12(b)(6) Motion to Dismiss and the Order

granting Praetorian’s Motion for Default Judgment pursuant to Federal Rule of Civil Procedure

60(b).

V. Conclusion

Based on the foregoing, it is not clear that Hampton will be unable to prevail on his claims

against JPSO. Therefore, the Court lacks subject matter jurisdiction over this case and must remand

it to the state court from which it was removed. For this reason, the Court must set aside both the

September 6, 2018 Order171 granting Praetorian’s Rule 12(b)(6) Motion to Dismiss and the

February 14, 2019 Order172 granting Praetorian’s Motion for Default Judgment.

Accordingly,

IT IS HEREBY ORDERED that Plaintiff Glenn Hampton’s Motion for Relief from

Judgment Pursuant to Rule 60, Federal Rules of Civil Procedure”173 is GRANTED. The

September 6, 2018 Order174 granting Praetorian’s Rule 12(b)(6) Motion to Dismiss and the

February 14, 2019 Order175 granting Praetorian’s Motion for Default Judgment are set aside.

171 Rec. Doc. 18.

172 Rec. Doc. 30 (as amended by Rec. Doc. 33).

173 Rec. Doc. 42.

174 Rec. Doc. 18.

175 Rec. Doc. 30 (as amended by Rec. Doc. 33).

IT IS FURTHER ORDERED that Plaintiff Glenn Hampton’s Motion to Remand!” is

GRANTED and this matter is remanded to the 24th Judicial District Court for the Parish of

Jefferson, State of Louisiana.

NEW ORLEANS, LOUISIANA, this 17th — day of January, 2020.

NANNETTE J ETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

1% Rec. Doc. 44.

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