Opinion

Aaron v. Bancroft Bag, Inc.

Court
District Court, E.D. Louisiana
Filed
Jun 10, 2021
Cited by
0 cases
Authority
More cited than 22.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

STEVEN AARON, SR. CIVIL ACTION □

VERSUS NO: 21-1082

BANCROFT BAG, INC., ET AL SECTION: "S" (1)

ORDER AND REASONS

iT IS HEREBY ORDERED that plaintiff's Emergency Motion to Remand (Rec. Doc, □

6) is GRANTED, and this matter is hereby REMANDED to the Civil District Court for the

Parish of Orleans.

I, BACKGROUND

Plaintiff, Steven Aaron, Sr., was diagnosed with terminal mesothelioma in May 2020,

allegedly due to occupational exposure to asbestos-containing products sold or distributed by

various defendants, Aaron filed the instant lawsuit in state court against thirteen defendants,

three of which are non-diverse: Bancroft Bag, Inc. ("Bancroft"), Monroe Spring & Brake, Inc.

("MSBI"), and Taylor-Seidenbach, Inc. ("TSC"). Due to his terminal condition, Aaron obtained a

preferential trial setting in state court, and trial was set for Monday, June 14, 2021 in Civil

District Court for the Parish of Orleans.

On June 3, 2021, defendant Ford Motor Company ("Ford") removed the matter to this

court, arguing that when plaintiff announced the settlement of his claims against MBSI on June

1, 2021, the matter became removable, because plaintiff voluntarily released his claims against

MSBI, Bancroft was previously dismissed on summary judgment unopposed by plaintiff, and the

only remaining non-diverse defendant, TSI, is improperly joined because, with discovery closed

and all trial evidence submitted, plaintiff has no reasonable basis to recover against TSI.

In an effort to preserve the current trial date, plaintiff filed the instant emergency motion,

arguing that despite defendants’ assertions, diversity is lacking, and remand is required. Plaintiff

argues that it has not executed a settlement with MSBI, and that TSI is properly joined, and thus

both of these non-diverse defendants are parties to this litigation.

. Il. DISCUSSION

A, Legal Standard for Motions to Remand

Motions to remand to state court are governed by 28 U.S.C. 1447(c), which provides that

“fi]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 (Sth 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 (Sth Cir.

2002), Doubts regarding whether federal jurisdiction is proper should be resolved against federal .

jurisdiction. Acuna v. Brown & Root, 200 F.3d 335, 339 (Sth Cir. 2000).

B. Diversity Subject Matter Jurisdiction under § 1332(a)

Defendants 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.

"TA] case that was not originally removable under our diversity jurisdiction because of

the presence of a nondiverse defendant may be removed only after it is clear under applicable

state law that the nondiverse defendant has been taken out of the case, leaving a controversy

wholly between the plaintiff and the diverse defendant." Vasquez v, Alto Bonito Gravel Plant

Corp., 56 F.3d 689, 694 (Sth Cir. 1995), State law governs the question whether removal is

proper because the nondiverse defendant is no longer effectively a party to the case. Est, of

Martineau v, ARCO Chem. Co., 203 F.3d 904, 910 (5th Cir, 2000). A plaintiff's settlement with

all nondiverse defendants makes a case removable, if the settlement is irrevocable, binding, and

enforceable under state law. Landry v. Eagle, Inc., 2012 WL 2338736, at *3-4 (E.D. La. June

19, 2012) (collecting cases) (citing Vasquez, 56 F.3d at 693-694).

In Louisiana, a settlement agreement is known as a compromise. La. Civ. Code art. 3071.

"(T]o be valid and enforceable, it must either be recited in open court and capable of being

transcribed from the record of the proceeding, ... or it must be reduced to writing and signed by

the parties or their agents." Sullivan v. Sullivan, 671 So. 2d 315, 317-18 (La. 1996); see also, La.

Civ. Code art. 3072. □

C. Analysis

In the present case, defendant, who bears the burden of proof, has provided no evidence

of a binding settlement agreement meeting the requirements of Louisiana law. The only evidence

offered is a motion to dismiss a writ application previously pending in the Louisiana Supreme

Court, in which counsel for plaintiff and MBSI recited that they had reached a settlement

agreement. Notwithstanding that this statement was made in a pleading filed before a court, this

alone does not establish the existence of a valid and enforceable settlement under Louisiana law.

The statement, even in a court filing, is not "irrevocable, binding and enforceable [as a

settlement] under state law." See Bush v. Waterman Steamship Corp., 2000 WL 913812, at *2

(E.D. La, July 5, 2000) (quoting Vasquez, 56 F.3d at 693-694), It is entirely feasible that the

representation was made in good faith because the parties had reached an agreement in principle

and thus did not want to unnecessarily burden the Supreme Court with review of a likely

unnecessary writ application, without having confected a binding agreement. Further, there is no

evidence that plaintiff has moved to dismiss MSBI from the state court action, and MSBI |

remains an active defendant in the removed action pending in this court.'

Other courts in this district. reviewing analogous factual scenarios have likewise

remanded such cases. For example, in Cella v. Allstate Prop. & Cas. Ins, Co. (E.D, La, Oct. 13,

2010 (Vance, J.), the removing defendant argued that proof of a settlement releasing the non-

diverse defendant existed because defense counsel sent a letter to plaintiffs counsel stating: "I

am pleased that we have been able to settle this claim in an amicable manner. You will find

enclosed the release agreement for your client's signature." Id. at *2. Defense counsel also

pointed to a check sent to plaintiff's attorney in “[f]ull and final settlement of any and all claims

'The court also notes that MSBI did not consent to removal. "When a civil action is

removed solely under section 1441(a), all defendants who have been properly joined and served

must join in or consent to the removal of the action." 28 U.S.C. § 1446(b)(2)(A). Accordingly, in

the notice of removal is defective on this ground as well.

for bodily injury arising from loss of 10/5/2009.” Id. Notwithstanding this indicia that the parties

had at some point reached a tentative agreement, the court found that "[t]o determine whether a

binding settlement agreement existed....on... the date of removal, the Court must examine

the alleged settlement agreement under Louisiana law." Id, (citing Est. of Martineau, 203 F.3d at

910). No binding settlement agreement or evidence thereof having been submitted, the court

remanded the matter.

Similarly, in Landry v. Eagle, Inc., 2012 WL 2338736 (E.D. La. June 19, 2012) (Barbier,

J.), the removing defendant argued that diversity was defeated by a settlement between plaintiff

- and anon-diverse party. The court disagreed, noting that the only evidence put forward to prove

the settlement was a joint pre-trial outline referencing plaintiffs’ claims against one of the

defendants, and a docket sheet from the Civil District Court website stating that the case had

been settled. Id, at 4. The court found that this evidence "{s]tanding alone, . . . does not establish

that the settlement agreement constitutes a valid and enforceable compromise under Louisiana

law." Id. Concluding that the removing defendant "failed to demonstrate by a preponderance of

the evidence that Plaintiffs have settled their claims against [the non-diverse defendant], or that

any settlement the parties may have theoretically reached constitutes a valid compromise under

Louisiana law," the court remanded the case. Id.

Like these analagous scenarios, in the present case, defendant's evidence fails to establish

an enforceable settlement agreement under Louisiana law. As in Cella, no settlement agreement

has been presented to the court to examine. As in Landry, a reference to a settlement agreement

in a court-filed document, without more, does not establish the existence of an enforceable

.

agreement. Based on the record before it, the court finds that Ford has failed to meet its burden

of proving an enforceable settlement agreement. Without such proof, MSBI is still a party to this

litigation, and complete diversity is lacking. Accordingly,

IT IS HEREBY ORDERED that plaintiff's Emergency Motion to Remand (Rec. Doc.

6) is GRANTED, and this matter is hereby REMANDED to the Civil District Court for the

Parish of Orleans.

New Orleans, Louisiana, this day of June, 2021.

Eilon cmen

Chaplin

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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