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

Pending before the Court is Defendant Praetorian Insurance Company’s (“Praetorian”)

“Motion for Reconsideration and/or Certification for Interlocutory Appeal.”1 This case arises out

of a fire at Plaintiff Glenn Hampton’s (“Hampton”) residence, as a result of which, Hampton

claims that Praetorian owes him unpaid compensation as his insurer.2 Praetorian moves the Court

to reconsider its January 17, 2020 Order remanding this case to state court or, in the alternative, to

certify the Court’s determination on fraudulent joinder for interlocutory appeal.3 Having

considered the motion, the memoranda in support and opposition, the record, and the applicable

law, the Court concludes that it does not have jurisdiction to consider the instant motion to

reconsider its previous ruling remanding the case and therefore denies the motion.

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

1 Rec. Doc. 60.

2 See Rec. Doc. 1-1 at 3.

3 Rec. Doc. 60 at 1.

1

District Court for the Parish of Jefferson, State of Louisiana. 4 In the petition, Hampton alleges that

he owned a property that was destroyed in a fire on January 30, 2016.5 According to the petition,

Praetorian insured the property.6 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 § 22:1973.7 Hampton also brings a claim against JPSO for negligent

handling of the investigation.8

B. Procedural Background

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

pursuant to 28 U.S.C. § 1332.9 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.10 Praetorian acknowledged that

JPSO is not diverse from Hampton because they are both citizens of Louisiana.11 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.12 Finally,

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

4 Rec. Doc. 1-1 at 3.

5 Id.

6 Id.

7 Id. at 4.

8 Id.

9 Id. at 3.

10 Id.

11 Id.

12 Id. at 4.

2

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.13

On April 9, 2018, Praetorian filed a “Rule 12(b)(6) Motion to Dismiss.”14 The motion was

set for submission on April 25, 2018.15 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.16

On April 10, 2018, Praetorian filed a counterclaim against Hampton.17 Praetorian brought

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

expenses.18 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.19

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

counterclaim on June 13, 2018.20 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

13 Id.

14 Rec. Doc. 5.

15 Id.

16 Rec. Doc. 18.

17 Rec. Doc. 7.

18 Id. at 11–12.

19 Id. at 13–14.

20 Rec. Doc. 11.

3

against Hampton.21 On July 16, 2018, the Clerk of Court entered default against Hampton.22 On

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

of default.23 On September 12, 2018, Praetorian filed its first Motion for Default Judgment against

Hampton.24 Hampton did not file an opposition.

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

request of Praetorian.25 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.26 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.27 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.28 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.29 Considering all of the circumstances at issue in the case, the Court

21 Rec. Doc. 12.

22 Rec. Doc. 14.

23 Rec. Doc. 16.

24 Rec. Doc. 19.

25 Rec. Doc. 22.

26 Id. at 1.

27 Id.

28 Id.

29 Rec. Doc. 24.

4

declined to exercise its discretion to enter a default judgment at that time.30 However, the Court

cautioned Breeden that he could not continue to delay these proceedings.31 Therefore, the Court

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.32

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.33 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.34 Praetorian also filed a

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

hearing was necessary.35 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.36 First, the Court considered jurisdiction.37 The Court found that it held subject-

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

30 Id. at 10.

31 Id.

32 Id.

33 Rec. Doc. 25.

34 Rec. Doc. 26.

35 Rec. Doc. 27.

36 Rec. Doc. 30.

37 Id. at 9–10.

5

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 $75,000.38 The Court held that it need not consider the citizenship of JPSO

for the purposes of diversity jurisdiction as Hampton fraudulently joined JPSO in this action.39

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.40 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.41 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.42 The Court awarded

Praetorian $189,675.97 plus interest.43

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

in Hampton’s suit against Praetorian.44 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.

38 Id.

39 Id. at 9–10 n.62.

40 Id.

41 Id.

42 Id. at 18.

43 Id.

44 Rec. Doc. 31-2.

6

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.45 Following the hearing, the Court issued an order holding Breeden in

contempt for failing to comply with the Court’s orders.46 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.47

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.48 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.49 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.50 On August 30, 2019, the Court

45 Rec. Doc. 34.

46 Rec. Doc. 44.

47 Id. On April 27, 2020 the Louisiana Supreme Court granted Breeden’s request for permanent resignation

in lieu of discipline. In re Breeden, 2020-0315 (La. 4/27/20), 295 So. 3d 391. It was further ordered that Breeden be

“permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the

practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in

any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the

practice of law in any jurisdiction.” Id.

48 Rec. Doc. 35.

49 Id. at 1.

50 Rec. Doc. 38.

7

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.51

On September 27, 2019, the Court granted Hampton an additional 14 days to file the briefing.52

On January 17, 2020, the Court granted Hampton’s motion to remand.53 The Court found

that it was not clear that Hampton would be unable to prevail on his claims against JPSO.54 The

Court determined that it lacked subject matter jurisdiction over this case and therefore ordered that

this matter be remanded to the 24th Judicial District Court for the Parish of Jefferson, State of

Louisiana.55 For this reason, the Court set aside both the September 6, 2018 Order,56 granting

Praetorian’s Rule 12(b)(6) Motion to Dismiss and the February 14, 2019 Order,57 granting

Praetorian’s Motion for Default Judgment.

On February 14, 2020, Praetorian filed the instant motion for reconsideration.58 On March

17, 2020, Hampton filed an opposition to the instant motion.59 On April 6, 2020, Praetorian, with

leave of Court, filed a reply.60

51 Rec. Doc. 39.

52 Rec. Doc. 41.

53 Rec. Doc. 56.

54 Id. at 18–25.

55 Id.

56 Rec. Doc. 18.

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

58 Rec. Doc. 60.

59 Rec. Doc. 65.

60 Rec. Doc. 69.

8

II. Parties’ Arguments

A. Praetorian’s Arguments in Favor of the Motion for Reconsideration

Praetorian argues that the Court should reconsider its January 17, 2020 Order or, in the

alternative, certify for interlocutory appeal the Court’s determination on fraudulent joinder.61

Praetorian argues that although 28 U.S.C. § 1447(d) generally bars federal review of

remand orders for lack of subject matter jurisdiction, such orders are reviewable if they satisfy the

requirements of City of Waco, Texas v. United States Fidelity & Guaranty Co.62 Praetorian

contends that the Court has subject matter jurisdiction to reconsider its remand order and

determination that JPSO was not fraudulently joined because it is: (1) separable from the remand

order and (2) a collateral final order.63 In the alternative, Praetorian argues that the Court has

jurisdiction to consider the Motion to Certify for Interlocutory Appeal.64 Praetorian contends that

it has timely filed its motion within the 28-day time limit under Federal Rule of Civil Procedure

59(e).65

Praetorian argues that the Court’s improper joinder determination is separable and

conclusive.66 Praetorian contends that the order accompanying or preceding the remand order is

separable in logic from the remand order.67 Praetorian argues that the Court’s improper joinder

61 Rec. Doc. 60-1 at 1.

62 Id. at 3 (citing City of Waco, Tex. v. U.S. Fid. & Guar. Co., 293 U.S. 140 (1934)).

63 Id.

64 Id.

65 Id.

66 Id.

67 Id.

9

determination provided the impetus for remand and therefore preceded the remand in logic.68

Additionally, Praetorian contends that joinder determinations are conclusive for § 1447(d)

purposes.69

Praetorian argues that the Court’s prior Order satisfies the Collateral Order Doctrine under

28 U.S.C. § 1291.70 Praetorian contends that to satisfiy the Collateral Order Doctrine, the Court’s

order must (1) be conclusive; (2) resolve important questions separate from the merits; and (3) be

effectively unreviewable on appeal from the final judgment in the underlying action, or too

important to be denied review.71

Here, Praetorian argues that the Court’s prior Order is conclusive because it determined

the disputed question of the Jefferson Parish Sheriff’s Office presence in the litigation.72 Praetorian

contends that the joinder of a party satisfies the second requirement because the addition of a party

to the lawsuit does not affect the underlying merits of Plaintiff’s claims.73 Regarding the third

factor, Praetorian argues that an order is not deemed effectively unreviewable on an appeal from

a final judgment if the order did nothing more than affect the forum in which the case will be

heard.74 Here, Praetorian contends that improper joinder determination vacated two prior

68 Id. at 3-4.

69 Id. at 4.

70 Id.

71 Id. at 4-5.

72 Id. at 5.

73 Id.

74 Id. at 6.

10

judgments, and Praetorian has no basis for obtaining reinstatement of those orders.75 Additionally,

Praetorian argues that the Court’s prior Order denied the JPSO the right to be free from suit, which

is effectively unreviewable on appeal.76 Furthermore, Praetorian contends that the Court

“presumably denied a future party, specifically those officers who Hampton may seek to add to

the litigation, the right to be dismissed from suit for violation of the statute of limitations.”77

Praetorian argues that reconsideration is required to correct a manifest error of law.78

Praetorian contends that because the Jefferson Parish Sheriff’s Office is not a legal entity amenable

to civil suit for damages, there is no basis for remand.79 Praetorian argues that the Court erred in

relying upon the Louisiana Supreme Court’s decision in Riley v. Evangeline Par. Sheriff’s Office,

for the proposition that there is a possibility that Hampton could recover against JPSO.80 Praetorian

contends that after the Louisiana Supreme Court’s decision in Riley, multiple courts continued to

hold that Parish Sheriff’s Offices lack the capacity to sue or be sued.81 Praetorian argues that

because this Court cannot remand a matter based on the presence of a non-diverse party who lacks

the capacity to sue or be sued, the Court’s prior Order constitutes a manifest error of law.82

75 Id.

76 Id. at 7.

77 Id.

78 Id. at 9.

79 Id.

80 Id.

81 Id. at 10.

82 Id. at 11 (citing United Student Aid Funds, 559 U.S. at 271 (quoting Nemaizer v. Baker, 793 F.2d 58, 65

(1986); see also United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661–62 (1st Cir. 1990) (“[T]otal want of

jurisdiction must be distinguished from an error in the exercise of jurisdiction, and ... only rare instances of a clear

usurpation of power will render a judgment void.”)(brackets and internal quotation marks omitted)).

11

Additionally, Praetorian contends that the Supreme Court has reserved relief from

judgment under Rule 60(b)(4) only for the exceptional case in which the court that rendered

judgment lacked even an arguable basis for jurisdiction.83 Praetorian argues that here, there is at

least an arguable basis for jurisdiction.84 Praetorian contends that “where a case is tried on the

merits after removal without objection and the federal court enters judgment, the issue in

subsequent proceedings on appeal is not whether the case was properly removed; rather, courts are

instructed to review the pleadings as they existed at the time the district court entered judgment.”85

Praetorian argues that the Supreme Court has held that “a district court’s error in failing to remand

a case improperly removed is not fatal to the ensuing adjudication if federal jurisdictional

requirements are met at the time judgment is entered.”86 Praetorian contends that when the

judgments were rendered in this case, the Court had jurisdiction.87

Praetorian argues that reconsideration is required to prevent a manifest injustice.88

Praetorian contends that “[c]ontrolling jurisprudence from the United States Supreme Court and

the United States Fifth Circuit is clear; common sense, comity, and considerations of judicial

finality, efficiency, and economy, require immediate reconsideration of the fraudulent joinder

determination and reinstatement of the Court’s Substantive Rulings.”89 Additionally, Praetorian

83 Id. at 10–11.

84 Id.

85 Id. at 11.

86 Id. (quoting Caterpillar, Inc. v. Lewis, 519 U.S. 61, 66 (1996)).

87 Id. at 12.

88 Id.

89 Id.

12

argues that any negative impact Hampton’s prior counsel may have had on the case can be

remedied through malpractice litigation.90 Praetorian contends that this litigation has been pending

before the Court since May 2018 and that during that time, the parties have expended substantial

time, effort, and money adjudicating the two claims at issue.91 In sum, Praetorian argues that

“considerations of finality, efficiency, and economy; principles of federalism; a conscious regard

for the ultimate interests of the litigants; and common sense—counsel strongly against the Court’s

decision.”92

B. Hampton’s Arguments in Opposition to the Motion for Reconsideration

In opposition, Hampton argues that pursuant to 28 U.S.C. § 1447(d), this Court is precluded

from reconsidering the remand Order.93 Hampton contends that this case does not satisfy any of

the collateral order doctrine requirements.94 Hampton argues that the instant motion should be

denied for two reasons: (1) this Court lacks jurisdiction to reconsider its remand Order and (2) the

separable order doctrine does not apply in this instance.95

First, Hampton contends that the Court lacks jurisdiction to reconsider its remand Order.96

Hampton argues that pursuant to 28 U.S.C. § 1447(d), an order remanding a case to state court

may not be appealed, and the district court itself is divested of jurisdiction to reconsider the

90 Id. at 13.

91 Id. at 14.

92 Id.

93 Rec. Doc. 65 at 1.

94 Id. at 1–2.

95 Id. at 2.

96 Id. at 6.

13

matter.97 Hampton contends that Praetorian has not established that the Court maintains

jurisdiction to reconsider its prior Order based upon the collateral order doctrine.98

Second, Hampton argues that the collateral order doctrine does not apply to the Court’s

remand order.99 Hampton contends that under Fifth Circuit precedent, to satisfy the collateral order

doctrine, an order must be both separable from the remand order and collateral.100 Hampton argues

that to satisfy the jurisdictional demands under the collateral order doctrine, the order at issue must

(1) not be “tentative, informal or incomplete,” (2) deal with “claims of right separable from, and

collateral to, rights asserted in the action,” (3) be effectively unreviewable on an appeal from final

judgment, and (4) be too important to be denied review.101 Here, Hampton contends that there is

no separate, collateral order.102 Hampton argues that because the Court’s determination, that the

joinder of the JPSO was not improper, served as the basis for the Court’s remand order, it cannot

properly be said to be separate or collateral to the remand order.103

Additionally, Hampton contends that Praetorian also cannot satisfy the third and fourth

factors of the collateral order doctrine.104 Hampton argues that an order is not considered

effectively unreviewable on appeal if the order simply alters the forum in which the suit will be

97 Id.

98 Id.

99 Id. at 7.

100 Id.

101 Id. (citing Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 489–91 (5th Cir. 2001)).

102 Id. at 8.

103 Id.

104 Id.

14

heard.105 Here, Hampton contends that the remand order simply returned the case to state court.106

Furthermore, Hampton argues that the Court’s Order does not subject otherwise immune

defendants to causes of action that would have otherwise prescribed.107 Hampton contends that an

“order that improperly joins a party but does not subject an immune party to a trial is not too

important to be denied review.”108

Lastly, responding to Praetorian’s argument that it has no mechanism by which it can get

the orders previously entered in its favor reinstated, Hampton argues that neither ruling was made

on the merits.109 Hampton contends that because his counsel was not actively litigating the case,

the caselaw Praetorian relies on regarding substantive legal and factual determinations does not

apply.110 Hampton argues that “Praetorian will be afforded every opportunity in Louisiana state

court to assert its counterclaim on the merits and to seek dismissal of Hampton’s bad faith claims

with the issue being fully briefed on both sides.”111

C. Praetorian’s Arguments in Further Support of the Motion for Reconsideration

In reply, Praetorian argues that Hampton mischaracterizes the collateral order doctrine as

well as the basis of the Court’s subject matter jurisdiction.112 Praetorian contends that “[i]n Doleac,

105 Id. at 8-9.

106 Id. at 9.

107 Id.

108 Id. at 10.

109 Id.

110 Id.

111 Id. at 10-11.

112 Rec. Doc. 69 at 1.

15

the Fifth Circuit explained that federal courts maintain subject matter jurisdiction over certain

District Court rulings, even after granting remand, if the ruling is separable and conclusive under

28 U.S.C. §1447(d), and the ruling is a collateral order.”113 Praetorian argues that the Court’s prior

determination of improper joinder satisfies both requirements and therefore triggers the

exception.114 Praetorian contends that the Court should reconsider its prior Order to correct a

manifest error of law and to prevent manifest injustice, because the JPSO is not an entity capable

of being sued.115

Additionally, Praetorian argues that Hampton’s substantive arguments against application

of the collateral order doctrine are incorrect.116 First, Praetorian contends that the fraudulent

joinder determination can be considered a collateral order even though that determination was

made in the same document as the remand order.117 Second, Praetorian argues that because the

improper joinder determination provided the impetus for the remand, it may be reviewed under 28

U.S.C. §1447(d).118 Praetorian contends that it is unable to reinstate the substantive rulings issued

by this Court which were vacated by the remand Order.119 Praetorian argues that the Court’s

decision, which has the “effect vacating multiple substantive rulings . . . begins to approach a

113 Id. at 2.

114 Id.

115 Id.

116 Id. at 3.

117 Id.

118 Id. at 3-4.

119 Id. at 4.

16

Constitutional violation of Due Process.”120 Lastly, Praetorian contends that Hampton’s prior

attorney’s failings are of no consequence to the present motion.121

III. Legal Standard

A. Legal Standard for Reconsideration

Although the Fifth Circuit has noted that the Federal Rules “do not recognize a ‘motion for

reconsideration’ in haec verba,”122 it has consistently recognized that such a motion may challenge

a judgment or order under Federal Rules of Civil Procedure 54(b), 59(e), or 60(b).123 Federal Rule

of Civil Procedure 59(e) also allows courts to alter or amend its judgments after entry. The Court

has “considerable discretion” in deciding whether to grant a motion for reconsideration, but must

“strike the proper balance between two competing imperatives: (1) finality and (2) the need to

render just decisions on the basis of all the facts.”124 This Court’s discretion is further bounded by

the Fifth Circuit’s instruction that reconsideration is “an extraordinary remedy that should be used

sparingly,”125 with relief being warranted only when the basis for relief is “clearly establish[ed].”126

Courts in the Eastern District of Louisiana have generally considered four factors in deciding

motions for reconsideration under the Rule 59(e) standard:

(1) the motion is necessary to correct a manifest error of law or fact upon which

120 Id. at 6.

121 Id.

122 Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990).

123 Id. (Rules 59 and 60); Castrillo v. Am. Home Mortg. Servicing, Inc., No. 09-4369, 2010 WL 1424398, at

*3–4 (E.D. La. Apr. 5, 2010) (Rule 54).

124 Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).

125 Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).

126 Schiller v. Physicians Res. Grp, Inc., 342 F.3d 563, 567 (5th Cir. 2003); Castrillo v. Am. Home Mortgage

Servicing, Inc., No. 09-4369 R, 2010 WL 1424398, at *3 (E.D. La. Apr. 5, 2010) (Vance, J.).

17

the judgment is based;

(2) the movant presents newly discovered or previously unavailable evidence;

(3) the motion is necessary in order to prevent manifest injustice; or

(4) the motion is justified by an intervening change in controlling law.127

A motion for reconsideration, “‘[is] not the proper vehicle for rehashing evidence, legal

theories, or arguments . . . .’”128 Instead, such motions “serve the narrow purpose of allowing a

party to correct manifest errors of law or fact or to present newly discovered evidence.”129 “It is

well settled that motions for reconsideration should not be used . . . to re-urge matters that have

already been advanced by a party.”130 When there exists no independent reason for reconsideration

other than mere disagreement with a prior order, reconsideration is a waste of judicial time and

resources and should not be granted.131

IV. Analysis

A. Whether the Court has Subject Matter Jurisdiction to Reconsider its Prior Order

The removal statute expressly bars federal review of an order remanding a case to the state

court from which it was removed.132 28 U.S.C. § 1447(d) provides:

127 See, e.g., Castrillo, 2010 WL 1424398, at *4 (citations omitted).

128 Id. (quoting Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004)).

129 See Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989) (citation and internal quotation marks

omitted).

130 Helena Labs. Corp. v. Alpha Sci. Corp., 483 F. Supp. 2d 538, 539 (E.D. Tex. 2007) (citing Browning v.

Navarro, 894 F.2d 99, 100 (5th Cir. 1990)).

131 Livingston Downs Racing Ass’n v. Jefferson Downs Corp., 259 F. Supp. 2d 471, 481 (M.D. La. 2002).

See also Mata v. Schoch, 337 B.R. 138, 145 (S.D. Tex. 2005) (refusing reconsideration where no new evidence was

presented); FDIC v. Cage, 810 F. Supp. 745, 747 (S.D. Miss. 1993) (refusing reconsideration where the motion merely

disagreed with the court and did not demonstrate clear error of law or manifest injustice).

132 28 U.S.C. § 1447(d).

18

An order remanding a case to the State court from which it was removed is not

reviewable on appeal or otherwise, except that an order remanding a case to the

State court from which it was removed pursuant to section 1442 or 1443 of this title

shall be reviewable by appeal or otherwise.133

The Fifth Circuit has summarized the state of the law regarding federal review of remand orders

as follows:

Appellate courts are precluded from reviewing remand orders issued pursuant to

§ 1447(c) [(lack of subject matter jurisdiction)], by appeal, mandamus, or

otherwise. This is true even if the district court’s order was erroneous. The rationale

for the rule is that allowing federal appeal of remand orders would delay justice in

state courts. The Supreme Court in Thermtron identified one narrow exception to

the strict bar to appellate review of remand orders. A remand order may be reviewed

where the district court “has remanded [a case] on grounds not authorized by the

removal statutes.”134

The Court expressly remanded the instant matter for lack of subject matter jurisdiction.135

Accordingly, the exception identified in Thermtron does not apply here. However, since the

Supreme Court’s decision in Thermtron, the jurisprudence regarding federal review of remand

orders has become increasingly convoluted.136 As such, despite the express bar against review of

remand orders based on a lack of subject matter jurisdiction, the judiciary has carved out

exceptions to the bar to review.

Despite the general lack of clarity around the law when it comes to review of remand

133 28 U.S.C. § 1447(d) (emphasis added).

134 Angelides v. Baylor College of Medicine, 117 F.3d 833, 835–36 (5th Cir. 1997) (citations omitted).

135 Rec. Doc. 56 at 26 (“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.”).

136 Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 222 (3d Cir. 1995) (quoting In re Amoco Petroleum

Additives Co., 964 F.2d 706, 708 (7th Cir.1992)) (“While the language seems straightforward, analysis of § 1447(d)

is not simple and its bar is not absolute. As one court has noted, “ ‘[s]traightforward’ is about the last word judges

attach to § 1447(d) these days. . . .”).

19

orders, the Fifth Circuit’s decision in In re Benjamin Moore and Co. is instructive.137 There, the

district court remanded the case to state court after determining that the plaintiffs’ joinder of certain

non-diverse defendants was not fraudulent and therefore, their presence defeated the requirement

of complete diversity.138 The removing defendants then filed a motion for reconsideration,

requesting that the district court reconsider its remand order and arguing that the fraudulent

misjoinder of the plaintiffs constituted fraudulent joinder under the federal removal statute.139 The

district court denied the motion for reconsideration after finding that the defendants failed to

establish any of the grounds for granting a motion for reconsideration under Rule 59(e) of the

Federal Rules of Civil Procedure.140 The removing defendants then filed a petition for writ of

mandamus with the Fifth Circuit.141

The Fifth Circuit did not analyze whether the district court had jurisdiction to entertain the

defendants’ motion for reconsideration. However, the Fifth Circuit analyzed whether it had

jurisdiction to consider the defendants’ arguments raised in the petition for mandamus.142 The Fifth

Circuit ultimately determined that it lacked jurisdiction to review, by way of mandamus, the

district court’s decision regarding misjoinder.143 The Fifth Circuit reasoned that although the

district court’s decision on joinder was separable from, and logically preceded, the remand, it was

137 318 F.3d 626 (5th Cir. 2002).

138 Id. at 628–29.

139 Id.

140 Id. at 629.

141 Id. at 629–30.

142 Id. at 630.

143 Id. at 631.

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not conclusive, because the state court could consider the misjoinder issue on remand and the

decision was not independently reviewable under the collateral order doctrine.144

In Pennier v. Morton Int’l, Inc., a district court judge for the United States District Court

for the Western District of Louisiana held that based on the express language of § 1447(d) “the

same analysis employed by the appellate courts should be employed by the district court when

asked to review a remand order.”145 The language contained within § 1447(d) provides that a

remand order is not reviewable on appeal or otherwise. Presuming that “on appeal” refers to review

by a federal circuit court, this Court finds that “or otherwise” precludes further review by a district

court that entered the original remand order.146 Therefore, this Court follows the same analysis

utilized by an appellate court under 28 U.S.C. § 1447(d) and relevant precedent in reviewing a

remand order. In addition to not having jurisdiction to entertain the motion for reconsideration,

this Court finds that it also does not have jurisdiction to consider the merits of the motion for

reconsideration.

In analyzing the reviewability of a remand order, the Fifth Circuit employs a two-step

consideration: (1) the issue of separableness under § 1447(d); and (2) the issue of appealability

under 28 U.S.C. § 1291.147

144 Id.

145 No. CIV. A. 10-1111, 2011 WL 3240476, at *1 (W.D. La. July 28, 2011); see also Faulk v. Swan, No.

4:10–cv 0397, 2010 WL 2609551, at *1 (E.D. Ark. June 28, 2010).

146 Id. (“This Court emphasizes the language contained within § 1447(d) that a remand is not reviewable on

appeal (presumably to the federal circuit court) or otherwise (for example, by the same court that remanded the matter

in connection with a motion for reconsideration), because this Court believes the analysis to be followed by this Court

in this case is the same analysis used by the federal appellate courts on appeal.”).

147 Doleac ex rel. Doleac v. Michalson, 264 F.3d 470, 477–78 (5th Cir. 2001) (“A number of cases dealing

with the reviewability of a remand have followed a two-step consideration: first, of § 1447(d) and separableness;

and then, of 28 U.S.C. § 1291 and appealability.”). The Fifth Circuit in Doleac further noted that these two factors—

separableness and conclusiveness—have often been improperly blended by other panels:

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The concept of separableness originated in City of Waco v. United States Fidelity &

Guaranty Company, in which the Supreme Court stated:

True, no appeal lies from the order of remand; but in logic and in fact the decree of

dismissal preceded that of remand and was made by the District Court while it had

control of the case. Indisputably this order is the subject of an appeal; and, if not

reversed or set aside, is conclusive upon the petitioner.148

An order is conclusive if “it will have the preclusive effect of being functionally

unreviewable in the state court.”149 “Conclusiveness” is defined in terms of whether the order was

“substantive” or “jurisdictional.”150 A jurisdictional decision is not conclusive.151 In Doleac, the

Fifth Circuit explained the distinction between “substantive” and “jurisdictional” decisions:

The way the terms commonly are used, it appears the district court’s allowance of

the amendment was jurisdictional—it was not based upon the substance of the

parties’ claims but, under Hensgens, involved a balancing of interests; and it did

not affect the merits of the parties’ claims or their right to pursue those claims but

merely determined the forum in which they would be decided. Yet in the context

of remand and an exception to § 1447(d), “substantive” does not necessarily refer

to whether a decision involves substantive rather than procedural law. Instead, as

explained above, a “substantive” decision is one that will have a preclusive effect

It is questionable how distinct the inquiry into separableness should be from that into collateralness, both in

the light of precedent and also in the light of the admitted overlap of the questions: both definitions include the concept

of conclusiveness, and the collateral order exception includes the concept of separateness.

The inquiries should remain distinct for several reasons: First, the definitions of separateness and of

conclusiveness in the context of the reviewability of a remand order may be distinct from their definitions under the

collateral order exception. For example, the “separableness” requirement of the collateral order doctrine requires that

the issue be separable from the merits, not that it be separable from the order of remand. Second, the precedent most

on point, Tillman, applies the two-step approach. Third, the collateral order doctrine has an existence independent of

the remand question, and it arises, of course, in many situations other than when § 1447(d) bars review.

Id. at 485.

148 293 U.S. 140, 143 (1934) (emphasis added).

149 Linton v. Airbus Industrie, 30 F.3d 592, 597 (5th Cir. 1994), cert. denied, 513 U.S. 1044, 115 (1994).

150 Doleac, 264 F.3d at 486–87 (citing Angelides, 117 F.3d at 837) (“As discussed, our court has defined

conclusiveness in terms of whether the order was “substantive” or “jurisdictional”: if a decision is simply

jurisdictional, it is not conclusive.”).

151 Id.

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in the state court; a “jurisdictional” finding can be reviewed by the state court upon

remand.152

In Angelides v. Baylor Coll. of Med., the Fifth Circuit reviewed the precedent on

substantive issues and jurisdictional issues.153 In each of the cases in which the court determined

that the issues were substantive and therefore conclusive, the Fifth Circuit noted that “the separable

portion of the order denied a substantive right not subject to review by the state court.”154 Thus, in

City of Waco, the state court could not reconsider the district court’s dismissal of a cross-claim;155

in Mitchell, the state court could not reconsider a district court order resubstituting a defendant;156

and in Mauro the state court could not reconsider the district court’s dismissal of federal claims

separate from remand of state law claims.157 Conversely, in Linton v. Airbus Industrie,158 and

Mobil Corporation v. Abeille General Insurance Co.,159 the Fifth Circuit declined to review district

court determinations that the defendants were not entitled to immunity under the Foreign

Sovereign Immunities Act (the “FSIA”).

Here, Praetorian argues that the Court has jurisdiction to review its improper joinder

determination because it is separable and conclusive.160 Accordingly, the Court will apply the two-

152 Id. (internal footnotes and citations omitted).

153 117 F.3d 833 (5th Cir. 1997).

154 Id. at 837.

155 293 U.S. at 143.

156 896 F.2d at 133.

157 21 F.3d at 670.

158 30 F.3d 592, 597 (5th Cir. 1994), cert. denied, 513 U.S. 1044 (1994).

159 984 F.2d 664, 665 (5th Cir. 1993).

160 Rec. Doc. 60-1 at 3.

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part test from City of Waco.

With respect to separableness, the Fifth Circuit has repeatedly established that a court’s

decision on joinder is separable from a decision to remand a case for lack of subject matter

jurisdiction.161

However, Praetorian has failed to establish that the Court’s joinder decision was

conclusive. With respect to the issue of improper joinder, the Court simply concluded that there

was a reasonable basis for predicting “that the plaintiff might be able to recover” against JPSO.162

In other words, the Court found that Praetorian had failed to meet its heavy burden of showing that

there was no possible way Hampton would be able to prevail on his claims against JPSO.163

Accordingly, the Court could not conclude that JPSO was improperly joined on that basis.164

The Court did not determine that JPSO was liable or that Hampton would be able to recover

from JPSO. The Court simply determined that there was a possibility Hampton could recover

against JPSO under Louisiana law. Thus, this Court’s improper joinder decision “did not affect the

merits of the parties’ claims or their right to pursue those claims but merely determined the forum

in which they would be decided.”165 In fact, the Court was careful to point out in its Order and

Reasons that it could not assess “whether the plaintiff will actually or even probably prevail on the

merits of the claim,” on a motion to remand based on improper joinder.166

161 Arnold v. State Farm Fire & Casualty Co., 277 F.3d 772, 776 (5th Cir. 2001); Doleac v. Michalson, 264

F.3d 470, 489 (5th Cir. 2001); Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1026–29 (5th Cir. 1991).

162 Rec. Doc. 56 at 24.

163 Id. at 24–25.

164 Id. at 19, 24–25.

165 Doleac, 264 F.3d at 486–87.

166 Rec. Doc. 56 at 24 (quoting Guillory v. PPG Indus., Inc., 434 F.3d 303, 308–09 (5th Cir. 2005)).

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Therefore, pursuant to this Court’s prior Order and Reasons, which did not rule on the

merits of Hampton’s claims against JPSO, the state court will be the ultimate arbiter of whether

JPSO bears any liability to Hampton. Such a determination cannot be said to be conclusive as to

the rights of any parties. Rather, all this Court determined was the forum in which the matter would

be litigated. Therefore, this Court concludes its prior improper joinder decision, while separable,

was not conclusive, and therefore, not reviewable by this Court.

B. Whether the Court will amend its January 17, 2020 Order to certify for interlocutory

appeal the Court’s determination on fraudulent joinder.

28 U.S.C. 1292(b) allows for interlocutory appeals when a district court finds that a non-

final order “[1] involves a controlling question of law as to which [2] there is substantial ground

for difference of opinion and that [3] an immediate appeal from the order may materially advance

the ultimate termination of the litigation.”167 An interlocutory appeal is “exceptional” and “does

not lie simply to determine the correctness of a judgment.”168 The decision whether to grant such

a request is within the sound discretion of the trial court.169

As discussed above and in its Prior Order and Reasons, this Court lacks subject matter

jurisdiction over this case.170 Therefore, this Court lacks jurisdiction to grant any of the relief

requested by Praetorian, including its request to certify for interlocutory appeal the Court’s

determination on fraudulent joinder. However, even if this Court had jurisdiction, the Court finds

167 28 U.S.C. 1292(b); see also In re Ichinose, 946 F.2d 1169, 1177 (5th Cir. 1991).

168 Clark–Dietz & Assoc.-Eng'r, Inc. v. Basic Const. Co., 702 F .2d 67, 68 (5th Cir. 1983).

169 Swint v. Chambers Cnty Com’n, 514 U.S. 35, 46 (1995) (explaining that in passing 28 U.S.C. § 1292,

“Congress thus chose to confer on district courts first line discretion to allow interlocutory appeals”).

170 Rec. Doc. 56 at 26 (“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.”).

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that there are not substantial grounds for disagreement on these issues, as would be necessary to

warrant an interlocutory appeal. The Court’s reasoning in its prior Order and Reasons was

grounded in the case law on improper joinder. As the Fifth Circuit has instructed, an interlocutory

appeal is an exceptional remedy and “does not lie simply to determine the correctness of a

judgment.”!”! For all these reasons, the Court finds that an interlocutory appeal would not be

appropriate here.

¥. Conclusion

Based on the foregoing, the Court finds its prior improper joinder decision, while separable,

was not conclusive, and therefore, not reviewable by this Court. Additionally, the Court finds that

an interlocutory appeal would not be appropriate here.

Accordingly,

IT IS HEREBY ORDERED that Praetorian Insurance Company’s “Motion for

Reconsideration and/or Certification for Interlocutory Appeal”!”? is DENIED.

NEW ORLEANS, LOUISIANA, this _ 25th day of August, 2020.

Moret obunitt. Broun

NANNETTE JOLIVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

Clark—Dietz, 702 F.2d at 68.

'™ Rec. Doc. 60.

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