# Dubois v. Weisinger

> District Court, E.D. Louisiana · May 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10190883

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 30, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10190883

## How later opinions describe it (automated extraction)

- holding that post-removal joinder of a nondiverse party will defeat jurisdiction

## Opinion text

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10190883. Public record. Not legal advice.