Dubois v. Weisinger

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KELCI MARTINEZ DUBOIS, ET AL. CIVIL ACTION

VERSUS NO. 22-2510

MITCHELL QUAID WEISINGER, ET AL. SECTION: D (3)

ORDER and REASONS

On May 16, 2024, in response to the parties filing their disclosure statements

pursuant to Federal Rule of Civil Procedure 7.11 and the removing defendants filing

an Amended Notice of Removal,2 this Court issued an Order giving the remaining

parties to this litigation an opportunity to submit supplemental memoranda

addressing why this case should not be remanded to state court for lack of diversity

jurisdiction under 28 U.S.C. § 1332.3 On May 23, 2024, Kelci Martinez Dubois and

Jacob Dubois (collectively, “Plaintiffs”), filed a Supplemental Memorandum stating

that they do not believe that the Court has diversity jurisdiction and that they do not

oppose remand.4 As of the date of this Order and Reasons, no other party has filed a

supplemental memorandum.

After consideration of the Amended Notice of Removal, the Rule 7.1 disclosure

statements, and the applicable law, the Court finds that it lacks subject matter

jurisdiction under 28 U.S.C. § 1332 and that this matter must be REMANDED to

1 R. Docs. 79, 81, 84, 87, 88, & 89.

2 R. Doc. 86.

3 R. Doc. 91.

4 R. Doc. 92.

the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, for lack

of subject matter jurisdiction.

I. FACTUAL AND PROCEDURAL HISTORY

On or about June 10, 2022, Plaintiffs filed a Petition in state court against

Mitchell Quaid Weisinger, Sparks Energy, Inc., Continental Casualty Company, and

Arch Insurance Company, seeking damages for the injuries they sustained in a motor

vehicle accident that occurred on or about September 15, 2021.5 According to the

Petition, Weisinger was the driver of the vehicle that crashed into the Plaintiffs’

vehicle, and he was cited and arrested for a DWI violation and pled guilty to the

charges in Louisiana state court.6 Plaintiffs allege that Weisinger was acting in the

course and scope of his employment with Sparks Energy, Inc. (“Sparks”) at the time

of the accident, that Continental Casualty Company (“Continental”) provided

commercial automobile liability insurance to Sparks, and that Arch Insurance

Company (“Arch”) provided excess insurance to Sparks.7

Weisinger, Sparks, and Continental removed the matter to this Court on

August 4, 2022, on the basis of diversity jurisdiction, 28 U.S.C. § 1332.8 The case was

initially assigned to another Section of this Court. 9 Weisinger, Sparks, and

Continental asserted in the Notice of Removal that there was complete diversity of

citizenship between the parties because Plaintiffs are both domiciled in Louisiana,

5 R. Doc. 1-1.

6 Id. at ¶¶ 4-10.

7 Id. at ¶ 1.

8 R. Doc. 1 at ¶¶ 4-5.

9 R. Doc. 2.

Weisinger is domiciled in Oklahoma Sparks is a citizen of Delaware and Alabama,

Continental is a citizen of Delaware and Illinois, and Arch is a citizen of Missouri and

New Jersey.10 Weisinger, Sparks, and Continental further alleged that for purposes

of diversity jurisdiction, intervenor, National Union Fire Insurance Company of

Pittsburgh (“National Union”), is a citizen of Pennsylvania and intervenor, Bronco

Industrial Services, LLC (“Bronco”), is a citizen of Louisiana.11 Both National Union

and Bronco had intervened while the matter was pending in state court.12 The

removing defendants did not specify whether the intervenors were aligned with the

plaintiffs or the defendants in this matter, but alleged that Bronco’s citizenship did

not destroy diversity jurisdiction because it is not an indispensable party under

Louisiana law.13 The removing defendants further alleged that it was facially

apparent from the Petition that the amount in controversy was met based upon the

categories of damages sought by the Plaintiffs in their Petition.14

Following the removal of the matter, Plaintiffs filed an Amended Complaint on

September 28, 2022, to properly name Arch Specialty Insurance Company, previously

identified as Arch Insurance Company, as a defendant.15

On March 16, 2023, Plaintiffs moved for leave to file a second amended

complaint to add three excess insurance carriers, Endurance American Specialty

Insurance Company (“Endurance”), Indemnity National Insurance Company

10 R. Doc. 1 at ¶¶ 9-11.

11 Id. at ¶¶ 12-13.

12 R. Doc. 1-9.

13 R. Doc. 1 at ¶ 13.

14 Id. at ¶¶ 16-17.

15 R. Doc. 29.

(“Indemnity National”), and Navigators Specialty Insurance Company

(“Navigators”), as additional defendants.16 Neither the motion nor the proposed

second amended complaint addressed the citizenship of the three new defendants, or

whether their addition would impact the Court’s diversity jurisdiction.17 The

proposed second amended complaint also did not reference the intervenors, Bronco

and National Union.18 Notably, Plaintiffs’ motion for leave was unopposed.19 On

March 17, 2023, the Court granted the motion,20 and the Second Amended Complaint

was filed into the record that same day.21 Endurance, Indemnity National, and

Navigators have all made an appearance in this matter by filing responsive pleadings

to the Second Amended Complaint.22

On April 11, 2024, after being advised that a partial settlement had been

reached between Plaintiffs, Continental, Arch Specialty Insurance Company, and

Navigators, the Court issued an Order of Partial Dismissal, dismissing without

prejudice Continental, Arch Specialty Insurance Company, and Navigators from the

litigation.23 Thus, as of April 11, 2024, the remaining parties to this litigation include

Plaintiffs, National Union, Bronco, Weisinger, Sparks, Endurance, and Indemnity

National.

16 R. Doc. 37.

17 See, generally, R. Docs. 37 & 37-2.

18 R. Doc. 37-2.

19 R. Doc. 37 at ¶ 4.

20 R. Doc. 38.

21 R. Doc. 39.

22 R. Docs. 50, 54, & 59.

23 R. Doc. 69.

On April 19, 2024, the case was reassigned to this Section.24 Upon receipt of

the case, the undersigned promptly set a telephone status conference for May 2, 2024

to discuss the status of the case.25 During that conference, the Court raised concerns

regarding whether diversity jurisdiction exists between the remaining parties in this

case under 28 U.S.C. § 1332.26 As a result of that discussion, the Court issued an

Order requiring Sparks and Weisinger (collectively, the “Removing Defendants”), to

file an amended notice of removal to properly allege the citizenship of the parties, to

allege facts showing the amount in controversy was met at the time of removal on

August 4, 2022, and to specify whether the intervenors, National Union and Bronco,

are aligned with the plaintiffs or the defendants in this matter.27 The Court also

issued an Order requiring all of the remaining parties to file a disclosure statement

pursuant to Fed. R. Civ. P. 7.1.28

Pursuant to that Order, the Removing Defendants filed an Amended Notice of

Removal on May 13, 2024.29 In the Amended Notice of Removal, Removing

Defendants allege that, for purposes of diversity jurisdiction, Plaintiffs are Louisiana

citizens, Weisinger is a citizen of Oklahoma, Sparks is a citizen of Delaware and

Alabama, Continental is a citizen of Delaware and Illinois, Arch is a citizen of

24 R. Doc. 71.

25 R. Doc. 72.

26 R. Doc. 80.

27 Id. at p. 4.

28 Id.

29 R. Doc. 86.

Missouri and New Jersey,30 and Endurance is a citizen of Delaware and New York.31

The Removing Defendants further assert that for purposes of diversity jurisdiction,

National Union is a citizen of Pennsylvania and New York and Bronco is a citizen of

Louisiana.32 As in the original Notice of Removal, the Removing Defendants allege

that Bronco’s citizenship should be disregarded for diversity purposes because it is

not an indispensable party under Louisiana law.33 The Removing Defendants further

assert that the intervenors are aligned with the Plaintiffs in this matter and, as such,

their citizenship does not interfere with the Court’s diversity jurisdiction.34 Notably,

the Removing Defendants do not address the fact that, for purposes of diversity

jurisdiction, National Union and Endurance are both citizens of New York.35

Pursuant to the Court’s May 2, 2024, Order, the remaining parties to the

litigation also filed their Fed. R. Civ. P. 7.1 disclosure statements.36 These filings

confirmed, for purposes of diversity jurisdiction, that Plaintiffs are citizens of

Louisiana,37 Bronco is a Louisiana citizen, Weisinger is a citizen of Oklahoma,38

Sparks is a citizen of Delaware and Alabama,39 National Union is a citizen of

30Although Continental and Arch were dismissed without prejudice from the litigation on April 11,

2024, they were named defendants when the matter was removed to this Court on August 4, 2022 and,

therefore, were properly included in the Amended Notice of Removal. See, R. Doc. 1.

31 R. Doc. 86 at ¶ 11. The Removing Defendants point out that Endurance was named as a defendant

after the case was removed to this Court, but that Endurance remains a defendant at this time. Id. at

¶ 11(e).

32 Id. at ¶¶ 12-13.

33 Id. at ¶¶ 14-15.

34 Id. at ¶¶ 15-16.

35 See, Id. at ¶¶ 11(e) & 12.

36 See, R. Docs. 79, 81, 84, 87, 88, & 89.

37 R. Doc. 79.

38 R. Doc. 88.

39 R. Doc. 87.

Pennsylvania and New York,40 and Endurance is a citizen of Delaware and New

York,41 and Indemnity National is a citizen of Mississippi and Tennessee.42 On May

14, 2024, after being advised that a settlement had been reached between Plaintiffs

and Indemnity National, the Court issued an Order dismissing without prejudice

Indemnity National from this litigation.43 The Court finds a chart helpful to

understand the citizenship of the remaining parties.

Plaintiffs Defendants

Party State(s) of Party State(s) of

Citizenship Citizenship

Kelci Dubois LA Mitchell Weisinger OK

Jacob Dubois LA Sparks Energy, Inc. DE, AL

Bronco Indus. Servs., LLC LA Endurance Am. Spec. Ins. Co. DE, NY

Nat. Union Fire Ins. Co. PA, NY

Based upon the Amended Notice of Removal and the Rule 7.1 disclosure

statements filed by the parties, the Court determined that the plaintiffs in this matter

(Plaintiffs, Bronco, and National Union) are citizens of Louisiana, Pennsylvania, and

New York, and the defendants (Weisinger, Sparks, and Endurance) are citizens of

Oklahoma, Delaware, New York, and Alabama. Noting the apparent overlap of

citizenship, the Court issued an Order on May 16, 2024, sua sponte giving the

remaining parties to the litigation an opportunity to file supplemental memoranda

addressing the Court’s diversity jurisdiction under 28 U.S.C. § 1332.44 Plaintiffs filed

a Supplemental Memorandum on May 23, 2024, asserting that they do not believe

40 R. Doc. 81.

41 R. Doc. 84.

42 R. Doc. 89.

43 R. Doc. 90.

44 R. Doc. 91.

that the Court has diversity jurisdiction and that they do not oppose remand.45 As of

the date of this Order and Reasons, no other party has filed a supplemental

memorandum regarding the Court’s subject matter jurisdiction.

II. LAW AND ANALYSIS

Federal courts are courts of limited jurisdiction and possess only that power

authorized by Constitution and statute.46 For this reason, “It is to be presumed that

a cause lies outside this limited jurisdiction, and the burden of establishing the

contrary rests upon the party asserting jurisdiction.”47 Subject matter jurisdiction

must exist at the time of removal to federal court, based on the facts and allegations

contained in the complaint.48 The removal statute, 28 U.S.C. § 1441, is strictly

construed and any doubt as to the propriety of removal should be resolved in favor of

remand.49 Remand is proper if at any time before final judgment the court lacks

subject matter jurisdiction.50 Further, “If after removal the plaintiff seeks to join

additional defendants whose joinder would destroy subject matter jurisdiction, the

court may deny joinder, or permit joinder and remand the action to the State court.”51

The Fifth Circuit has held that this provision “indicates that the court may not permit

joinder of non-diverse defendants but then decline to remand . . . .”52 The Fifth Circuit

45 R. Doc. 92.

46 Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d

391 (1994) (citing authority).

47 Id. (citation and internal citation omitted).

48 St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (“jurisdictional facts

must be judged as of the time the complaint is filed”).

49 Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).

50 See, 28 U.S.C. § 1447(c).

51 28 U.S.C. § 1447(e).

52 Cobb v. Delta Exports, Inc., 186 F.3d 675, 677 (5th Cir 1999) (citation omitted).

further held that, “post-removal joinder of non-diverse defendants pursuant to Fed.

R. Civ. P. 19 destroys diversity for jurisdictional purposes and requires remand, even

when the newly joined defendants are not indispensable.”53

Based upon the Amended Notice of Removal and the Fed. R. Civ. P. 7.1

disclosure statements recently filed into the record, the Court finds that diversity

jurisdiction existed at the time of removal on August 4, 2022. Complete diversity of

citizenship existed because the Plaintiffs are citizens of Louisiana and the original

defendants, Weisinger, Sparks, Continental, and Arch, are citizens of Delaware,

Alabama, Oklahoma, Illinois, Missouri, and New Jersey.54

In the Amended Notice of Removal filed on May 13, 2024, the Removing

Defendants assert that the intervenors, Bronco and National Union, are properly

aligned with the plaintiffs in this matter.55 The Court agrees. According to the

Petition of Intervention filed in the state court proceeding prior to removal, Bronco

and National Union assert that they “have paid Plaintiff workers’ compensation

benefits, medical expenses, and other benefits, payments and expenses under the

Louisiana Workers’ Compensation Act.”56 Bronco and National Union further assert

that, by virtue of the payments they have made to Mr. Dubois, they are subrogated

to the rights of Mr. Dubois to the extent of all amounts they have paid to and/or on

behalf of Mr. Dubois and any additional amounts they may pay in the future to and/or

53 Id. See, Hensgens v. Deere & Co., 833 F.2d 1179, 1180-81 (5th Cir. 1987) (holding that post-removal

joinder of a nondiverse party will defeat jurisdiction). The Court notes that Federal Rule of Civil

Procedure 19 pertains to “Required Joinder of Parties.”

54 R. Docs. 1, 79, 86, 87, & 88.

55 R. Doc. 86 at ¶¶ 15-16.

56 R. Doc. 1-9 at ¶ III.

on behalf of Mr. Dubois.57 As explained by another Section of this Court, “An

intervenor who has paid workers compensation benefits to an employee or will pay

benefits in the future, and who is seeking to recover those payments and any future

payment obligations from a third-party tortfeasor, is properly aligned with the

Plaintiff.”58 Further, “Courts in this circuit have repeatedly found that insurers or

employers that have paid plaintiffs’ workers’ compensation benefits are intervenors

of right under Rule 24(a)(2) and indispensable parties under Rule 19(a).”59 The Court

finds that, to the extent Bronco and National Union have already paid workers’

compensation benefits and may owe additional benefits in the future, it is in their

interest for Plaintiffs to maximize their recovery against the defendants in this case.

As such, the Court finds that Bronco and National Union were aligned with the

Plaintiffs at the time of removal.60 Accordingly, there was complete diversity of

citizenship at the time of removal because the plaintiffs (Plaintiffs, Bronco, and

57 Id. at ¶¶ IV-VIII. The Court notes that Bronco and National Union also assert that their interest

in the outcome of this suit “is opposed to the Plaintiff’s and Defendants’ interest to the extent that

Intervenors are entitled to recover from Plaintiff and Defendants in an amount equal to or exceeding

the payments made by them to and/or on behalf of the Plaintiff as set forth hereinabove.” Id. at ¶ IX.

58 Balboa v. Metso Minerals Industries, Inc., Civ. A. No. 18-9968, 2019 WL 8888170, at *3 (E.D. La.

Jan. 2, 2019) (Morgan, J.) (citing Norwood v. Grocers Supply Co., Inc., Civ. A. No. 12-751, 2013 WL

686410 (W.D. La. Feb. 25, 2013) (Kay, M.J.); Dushane v. Gallagher Kaiser Corp., Civ. A. No. 05-0171,

2005 WL 1959151 (W.D. La. Aug. 10, 2005) (Hornsby, M.J.)). See, Johnson v. Agility Fuel Sys., Inc.,

Civ. A. No. 20-733-SDD-RLB, 2021 WL 4693235, at *3 (M.D. La. Sept. 7, 2021) (Bourgeois, M.J.) (“In

light of this jurisprudence, district courts in this Circuit have found that employers and workers’

compensation insurers who have paid a plaintiff workers’ compensation benefits are intervenors of

right in a plaintiff’s action against alleged tortfeasors.”) (citing Fulford v. Climbtek, Inc., Civ. A. No.

16-16, 2016 WL 7173780, at *5 (M.D. La. Dec. 8, 2016) (Wilder-Doomes, M.J.); Johnson v. Qualawash

Holdings, LLC, 990 F. Supp. 2d 629, 640 (W.D. La. Jan. 6, 2014); Youngblood v. Rain CII Carbon LLC,

Civ. A. No. 12-287, 2014 WL 2547588, at *3 (W.D. La. June 4, 2014) (Kay, M.J.)).

59 Fuselier v. Everest National Insurance, Civ. A. No. 19-1456, 2020 WL 1539879, at *2 (W.D. La. Mar.

4, 2020) (Kay, M.J.) (citing Qualawash, 990 F. Supp. 2d at 640; Youngblood, Civ. A. No. 12-287, 2014

WL 2547588 at *3; Brown v. Pennsylvania Lumbermans Mut. Inc. Co., Civ. A. No. 16-469-BAJ-EWD,

2016 WL 7175619, at *3 (M.D. La. Dec. 8, 2016) (Wilder-Doomes, M.J.)).

60 Agility Fuel Sys., Inc., Civ. A. No. 20-733-SDD-RLB, 2021 WL 4693235 at *3 (citing authority).

National Union) were citizens of Louisiana, Pennsylvania, and New York, and the

defendants (Weisinger, Sparks, Continental, and Arch) were citizens of Oklahoma,

Delaware, Alabama, Illinois, Missouri, and New Jersey. The amount in controversy

was also satisfied at the time of removal, as set forth in the Amended Notice of

Removal.61

When Plaintiffs subsequently filed their Second Amended Complaint on March

17, 2023, however, the Court lost diversity jurisdiction in this matter. Specifically,

the Second Amended Complaint named three new defendants, Endurance, Indemnity

National, and Navigators.62 Endurance is a citizen of Delaware and New York.63

When Endurance was added as a defendant, National Union, which was aligned with

the Plaintiffs, was a citizen of Pennsylvania and New York.64 Diversity of citizenship

was destroyed at that time. Pursuant to 28 U.S.C. § 1447(e)65 and clear Fifth Circuit

authority,66 when the Court granted Plaintiffs’ motion for leave to file their second

amended complaint to name Endurance as an additional defendant, the Court was

required to remand the matter for lack of subject matter jurisdiction.67 The Fifth

61 R. Doc. 86 at ¶¶ 18-20.

62 R. Doc. 39 at ¶ 1(e), (f), & (g).

63 R. Doc. 84 at ¶ 1.

64 R. Doc. 81. The Court notes that the Second Amended Complaint does not mention the intervenors,

Bronco and National Union. See, generally, R. Doc. 39.

65 Section 1447(e) states that, “If after removal the plaintiff seeks to join additional defendants whose

joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and

remand the action to the State court.”

66 Cobb v. Delta Exports, Inc., 186 F.3d 675, 677 (5th Cir. 1999) (“We agree with the Cobbs that post-

removal joinder of non-diverse defendants pursuant to Fed. R. Civ. P. 19 destroys diversity for

jurisdictional purposes and requires remand, even when the newly joined defendants are not

indispensable.”); Hensgens v. Deere & Co., 833 F.2d 1179, 1180-81 (5th Cir. 1987) (“[A]ddition of a

nondiverse party will defeat jurisdiction.”) (citing Owen Equipment & Erection Co. v. Kroger, 437 U.S.

365, 374, 98 S.Ct. 2396, 2403, 57 L.Ed.2d 274 (1978)).

67 Cobb, 186 F.3d at 677.

Circuit has made clear that, “Although it is true that most subsequent events will not

defeat jurisdiction, addition of a nondiverse defendant will.”68 The Fifth Circuit has

further recognized that by giving a district court only two options, 28 U.S.C. § 1447(e)

“indicates that the court may not permit joinder of non-diverse defendants but then

decline to remand, as the court did here.”®® The Fifth Circuit explained that, “In

adopting the current version of § 1447(e), Congress rejected a version that would have

permitted district courts to join non-diverse defendants and, at their discretion,

retain jurisdiction.””°

Because complete diversity of citizenship is lacking between the remaining

parties in this matter, the Court lacks subject matter jurisdiction under 28 U.S.C. §

1332. While it is never desirable to remand an action to state court after nearly two

years of litigation in federal court, the Court cannot, and will not, turn a blind eye to

28 U.S.C. § 1447(e) and binding Fifth Circuit authority, which require this Court to

remand the matter to state court for lack of subject matter jurisdiction.

Hil. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that this matter is

REMANDED to the Judicial District Court for the Parish of Jefferson, State of

Louisiana, for lack of subject matter jurisdiction under 28 U.S.C. § 13382.

New Orleans, Louisiana, May 30, 2024.

( ond A Vth

WENDY B./VITTER

UNITED STATES DISTRICT JUDGE

88 Hensgens, 833 F.2d at 1181 (citing Kroger, 347 U.S. at 374, 98 S.Ct. at 2403).

69 Cobb, 186 F.3d at 677 (footnote omitted).

70 Cobb, 186 F.3d at 677 (citation omitted).