The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NESHANDRA HILL CIVIL ACTION
VERSUS NO: 20-1896
GEOVERA SPECIALTY INS. CO, ET SECTION: "S" (3)
AL
ORDER AND REASONS
IT IS HEREBY ORDERED that plaintiff's Motion to Remand (Rec. Doc. 8) is
GRANTED, and this matter is REMANDED to the Civil District Court for the Parish of
Orleans.
BACKGROUND
Plaintiff's complaint alleges state law breach of contract claims against her insurer and a
fire damage mitigation company retained by her insurer arising out of a fire at her home. Plaintiff
filed suit in state court against her insurer, Geovera Specialty Insurance Company ("Geovera"),
and ServPro of the New Orleans Westbank ("ServPro"), the trade name of Rug Busters, Inc., the
mitigation company. Rug Busters, Inc., wrongfully named ServPro of the New Orleans
Westbank doing business as ServPro of the New Orleans Westbank, has filed an answer to the
suit. It is undisputed that both plaintiff and Rug Busters, Inc. are citizens of Louisiana.
DISCUSSION
Geovera removed this action alleging that this court has diversity subject matter
jurisdiction under 28 U.S.C. § 1332(a)(1), which provides that district courts have original
jurisdiction over civil actions where the amount in controversy exceeds $75,000, exclusive of
interest and costs, and are between citizens of different states. Geovera contends that in filing
suit against ServPro, plaintiff sued a fictitious entity, and pursuant to 28 U.S.C. § 1441, which
provides, that "[i]n determining wehther a civil action is removable on the bais of the jurisdiction
under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall
be disregarded," the court may not consider ServPro's non-diverse citizenship.
Motions to remand to state court are governed by 28 U.S.C. § 1447(c), which provides
that “[i]f at any time before the final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” The removing defendant bears the burden of
demonstrating that federal jurisdiction exists and therefore that removal was proper. Jernigan v.
Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993).
In assessing whether removal is appropriate, the court is guided by the principle,
grounded in notions of comity and the recognition that federal courts are courts of limited
jurisdiction, that removal statutes should be strictly construed. See Manguno v. Prudential Prop.
& Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Doubts regarding whether federal
jurisdiction is proper should be resolved against federal jurisdiction. Acuna v. Brown & Root,
200 F.3d 335, 339 (5th Cir. 2000). The removing defendant bears the burden of demonstrating
that federal jurisdiction exists and therefore that removal was proper. Jernigan v. Ashland Oil,
Inc., 989 F.2d at 815.
The court first observes that ServPro is a trade name, not a fictitious entity, in the sense
that "John Doe" or "XYZ Insurance Company" defendants are fictitious entities. Thus, plaintiff
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has misnamed the defendant, not sued a fictitious entity. More importantly, however, the correct
defendant, Rug Busters, Inc., d/b/a ServPro of the New Orleans Westbank, a citizen of
Louisiana, has answered the suit, and issue is joined between a plaintiff and a defendant that are
both citizens of Louisiana. Accordingly, complete diversity is lacking, and therefore,
IT IS HEREBY ORDERED that plaintiffs Motion to Remand (Rec. Doc. 8) is
GRANTED, and this matter is REMANDED to the Civil District Court for the Parish of
Orleans.
New Orleans, Louisiana, this 9th day of September, 2020.
MARYANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE