Alford v. Dyke

SARAH MARIE SHARP ALFORD, ET AL. v. JEFFERY DYKE, ET AL.

CIV. ACTION NO. 3:21-0580

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION

May 10, 2021

JUDGE TERRY A. DOUGHTY

MAG. JUDGE KAYLA D. MCCLUSKY

REPORT AND RECOMMENDATION

Before the undersigned Magistrate Judge, on reference from the District Court, are two motions: 1) a motion to dismiss for lack of subject matter jurisdiction, and/or for sufficient service of process [doc. # 3] filed by Defendant, State of Louisiana, through the Department of Transportation and Development ("DOTD"); and 2) a motion to remand and associated request for costs and fees [doc. # 11] filed by Plaintiffs, Sarah Marie Sharp Alford, et al. The motions are opposed. For reasons explained below, it is recommended that, 1) the State's motion to dismiss be DENIED; and 2) that Plaintiffs' motion to remand be GRANTED, but that the request for costs and fees be DENIED.

Background

On October 30, 2020, Winston Chance Alford ("Alford") was behind the wheel of a borrowed 2011 Mazda 3S when he collided head-on with an 18-wheel refrigerated tractor trailer driven by Jeffery Dykes on Louisiana Highway 33, at Farmerville, Louisiana. At the time of the collision, the 18-wheeler was speeding (traveling 47.5 miles per hour in a 35-mile per hour zone). Immediately before the accident, Alford observed the 18-wheeler cross over the center line and he attempted to take evasive action. (Petition, ¶ 12). Despite Alford's efforts, the vehicles collided head-on, with both straddling the center line of the highway at the point of impact. Id. Alford's resulting injuries proved fatal. (Petition, ¶ 4).

On January 29, 2021, Sarah Marie Sharp Alford filed the instant petition for damages, individually, and as natural tutrix on behalf of three of Alford's minor children, in the Third Judicial District Court for the Parish of Union, State of Louisiana, against Defendants Jeffery Dyke; Dyke's employer(s) -- Highway Express and Gurpinder Singh Sanghera (incorrectly sued as "Gurpinder Singh Sangher"); Northland Insurance Company (the liability carrier for the foregoing Defendants); Tryus Transportation, Inc. (the owner of the refrigerated trailer driven by Alford); and the State of Louisiana through its Department of Transportation & Development ("DOTD" or the "State"). (Petition). Additional Plaintiffs include Jill Nations, as natural tutrix of Alford's two other minor children; Zach Alford and Tyler Alford (Alford's brothers); and Sue Alford (Alford's mother and owner of the Mazda that he was driving at the time of the collision). Id. Plaintiffs seek compensatory and punitive damages suffered by them and/or the decedent as a result of Defendants' negligence. Id.

On March 5, 2021, Defendants, Dyke; Highway Express; Sanghera; Try-Us Transportation, Inc.; and Northland Insurance Company, removed this matter to federal court on the exclusive basis of diversity jurisdiction, 28 U.S.C. § 1332. (Notice of Removal). Plaintiffs are all Louisiana domiciliaries. (Petition, ¶ 1). Individual Defendants, Dyke and Sanghera, are California domiciliaries. (Notice of Removal, ¶¶ 7 & 9). Defendant, Northland Insurance Company, is a Minnesota corporation, with its principal place of business in said state. Id., ¶ 11. Defendants further contend that Defendants, Try-Us Transportation, Inc. and Highway Express are foreign entities. Id., ¶¶ 8, 10.¹

The DOTD's presence in this matter, however, precludes the exercise of diversity jurisdiction. See discussion, infra. To overcome the obstacle to diversity jurisdiction posed by the DOTD, removing Defendants asserted in the notice of removal that Plaintiffs have no reasonable possibility of recovery against the DOTD, and, therefore, it was improperly joined inan attempt to defeat subject matter and removal jurisdiction. See Notice of Removal.

On March 9, 2021, the DOTD filed the instant motion to dismiss for lack of subject matter jurisdiction on the basis that it was an arm of the State of Louisiana and entitled to sovereign immunity under the Eleventh Amendment. The DOTD further argued that service of process was insufficient because Plaintiffs only requested service on the attorney general, without also requesting service on the head of the DOTD and the office of risk management, as required by state law.

On March 25, 2021, Plaintiffs filed the instant motion to remand the matter to state court on the basis that their claims against the DOTD precluded the exercise of federal subject matter jurisdiction, via diversity. Plaintiffs further requested over $17,000 in fees and costs that they incurred as a result of Defendants' improper removal.

That same day, Plaintiffs filed their opposition to the DOTD's motion to dismiss wherein they argued that the State's sovereign immunity argument was misplaced because Plaintiffs had sued the State of Louisiana in state court where the State unequivocally has waived its sovereign immunity for tort claims. (Pls. Opp. Memo. [doc. # 9]) (citing LA. CONST. ART. XII, §10(A)). Plaintiffs further took issue with the DOTD's attack on the sufficiency of Plaintiffs' service efforts. Id. Finally, Plaintiffs argued that the State colluded with the removing Defendants to "unjustly" deprive Plaintiffs of their chosen forum, and, thus, Plaintiffs were entitled to an award of attorney's fees and costs against the State in the sum of $3,375.00. Id.

The State filed a reply brief in support of its motion to dismiss on April 7, 2021. [doc. # 15]. Removing Defendants filed a memorandum in opposition to Plaintiffs' motion to remand on April 15, 2021. [doc. # 16]. Plaintiffs did not file a reply brief in support of remand, and the time to do so has lapsed. See Notice of Motion Setting. [doc. # 14]. Accordingly, the matter is ripe.

Discussion

I. Motion to Remand

A defendant may remove an action from state court to federal court, provided the action is one in which the federal court may exercise original jurisdiction. Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5^th Cir. 2002) (citing 28 U.S.C. § 1441(a)). The removing defendant bears the burden of establishing federal subject matter jurisdiction and ensuring compliance with the procedural requirements of removal. Id. Because federal courts are courts of limited jurisdiction, a suit is presumed to lie outside this limited jurisdiction unless and until the party invoking federal jurisdiction establishes to the contrary. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (citation omitted). The removal statutes are strictly construed in favor of remand. Manguno, supra.

Removing Defendants invoked this court's subject matter jurisdiction via diversity, which requires an amount in controversy greater than $75,000, and complete diversity of citizenship between plaintiffs and defendants, 28 U.S.C. § 1332(a). Here, Plaintiffs seek damages stemming from the death of Christopher Alford, which by the very nature of the claim, suffices to satisfy the amount in controversy requirement. See Notice of Removal ¶ 22 (citing survival/wrongful death cases with damages awards in excess of $75,000). Accordingly, the sole jurisdictional issue is whether the parties are citizens of diverse states.

The diversity jurisdiction statute presupposes a civil action between "citizens of different states," where all plaintiffs are diverse from all defendants. 28 U.S.C. § 1332; Farrell Const. Co. v. Jefferson Parish, La., 896 F.2d 136, 139-140 (5^th Cir. 1990). When jurisdiction depends on citizenship, "citizenship must be 'distinctly and affirmatively alleged.'" Getty Oil, Div. Of Texaco v. Ins. Co. of North America, 841 F.2d 1254 (5th Cir. 1988) (citation omitted) (emphasis in citing source); see also Illinois Cent. Gulf R. Co. v. Pargas, Inc., 706 F.2d 633, 636 & n.2 (5thCir.1983) (the basis upon which jurisdiction depends must be alleged affirmatively and distinctly and cannot be established argumentatively or by mere inference). This rule requires "strict adherence." Getty Oil, supra.

As stated earlier, Plaintiffs are Louisiana citizens; the individual defendants are California citizens; and Defendant, Northland Insurance Company, is a citizen of Minnesota. (Notice of Removal). Removing Defendants further alleged that Defendant, Try-Us Transportation, Inc. was a "foreign corporation," with its principal place of business in California. (Notice of Removal, ¶ 10). However, the notice of removal failed to affirmatively allege Try-Us Transportation, Inc.'s state of incorporation.²

In addition, the notice alleged that Defendant, Highway Express, was a "foreign entity," with its principal places of business in California. Id., ¶ 8. However, removing Defendants did not specify whether Highway Express was a corporation or some other form of unincorporated association. If Highway Express is a corporation, then removing Defendants should have so stated and alleged its state of incorporation. If Highway Express is an unincorporated association or a limited liability company, then removing Defendants were required to identify the members of Highway Express and their citizenship.³

If the foregoing represented the only issues with the court's exercise of subject matter jurisdiction, then the undersigned could have afforded Defendants an opportunity to amend their notice of removal to redress these deficient allegations. However, a more immutable roadblock to the maintenance of this diversity suit in federal court is the presence of Defendant, DOTD.

It is well-established that a state is not a citizen for purposes of diversity jurisdiction, and thus, a court may not exercise diversity jurisdiction in a case where a state is a party. Tex. Dep't. of Hous. & Cmty. Affairs v. Verex Assur., Inc., 68 F.3d 922, 926 (5th Cir. 1995), overruled on other grounds by Mullins v. TestAmerica, Inc., 564 F.3d 386, 413 n.19 (5th Cir. 2009); Tradigrain, Inc. v. Mississippi State Port Auth., 701 F.2d 1131, 1132 (5th Cir. 1983) (and cas...