Coleman v. Anco Insulations, Inc. (M.D. La., Feb. 10, 2017)

Our plain-English summary of Coleman v. Anco Insulations, Inc. (U.S. District Court, Middle District of Louisiana, February 10, 2017).

William Coleman sued Anco Insulations, Pilkington North America and several insurance companies in state court, and the case was removed to federal court in Louisiana based on diversity of citizenship. The opinion says Coleman died of malignant mesothelioma on November 8, 2016. His heirs, Pamela Coleman and Jody Coleman Nolte, asked to be substituted as plaintiffs and to add survival and wrongful death claims. The magistrate judge did not rule on the substance of those claims. She noted that the heirs' proposed amended complaint did not say where the heirs were domiciled and described the defendants only as "foreign corporations." Under Fifth Circuit law, an individual's citizenship means domicile, and a corporation's means its state of incorporation and principal place of business. The judge ordered the heirs to file a new motion with a corrected proposed complaint setting out each party's citizenship, and to say whether the defendants consent. They had seven days to do so.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Middle District of Louisiana
• Decided: February 10, 2017
• Docket: Civil Action No. 15-821-BAJ-EWD
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The magistrate judge ordered the plaintiffs' heirs to file a new motion to substitute with a proposed amended complaint that properly alleges the citizenship of all parties, and to state whether the defendants consent.

What the court held. In a diversity case, a complaint must allege citizenship as domicile for individuals and as state of incorporation and principal place of business for corporations; alleging that defendants are 'foreign corporations' is not enough.

Issues decided: Wrongful Death and Survival, Personal Jurisdiction, Trial Procedure and Discovery, Venue, Removal and Transfer.

The people and their exposure

• William D. Coleman: mesothelioma; died

The defendants

• Anco Insulations, Inc.
• Pilkington North America, Inc.
• Liberty Mutual Insurance Company (insurer)
• Travelers Casualty and Surety Company (insurer)
• Safety National Casualty Corporation (insurer)
• Bedivere Insurance Company (insurer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Coleman v. Anco Insulations, Inc. (April 21, 2017). The magistrate judge granted the plaintiffs' motion to substitute Pamela Coleman and Jody Coleman Nolte for the deceased William Coleman and to file an amended complaint, over Pilkington North America's objection.
• Coleman v. Anco Insulations, Inc. (April 25, 2017). The magistrate judge granted the unopposed motion by defendant Pilkington North America to run destructive fiber burden testing on up to 50% of the decedent's pathology materials, against the plaintiffs.
• Coleman v. Anco Insulations, Inc. (May 8, 2017). The magistrate judge granted in part and denied in part the Coleman plaintiffs' motion to compel Pilkington North America to produce a Rule 30(b)(6) corporate representative, granting topic 52 and topic 40 (pre-1972 only) and denying the general dust and post-employment topics.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

WILLIAM D. COLEMAN,

v.

ANCO INSULATIONS, INC. ET AL.

Civil Action No. 15-821-BAJ-EWD.

February 10, 2017.

United States District Court, M.D. Louisiana.

William D. Coleman, Plaintiff, represented by Susannah B. Chester-Schindler, Waters & Kraus, LLP.

Liberty Mutual Insurance Company, Defendant, represented by Susan M. Rogge, Barrasso Usdin Kupperman Freeman &

Sarver LLC, H. Minor Pipes, III, Barrasso Usdin Kupperman Freeman & Sarver LLC & Kimberly R. Silas, Barrasso Usdin Kupperman Freeman & Sarver, L.L.C..

Safety National Casualty Corporation, Defendant, represented by Chris James LeBlanc, Watson, Blanche, Wilson & Posner, LLP & William Eugene Scott, III, Watson, Blanche, Wilson & Posner, LLP.

Travelers Casualty and Surety Company, Defendant, represented by Kristopher T. Wilson, Lugenbuhl, Wheaton, Peck,

Rankin & Hubbard & Katherine L. Osborne, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard.

Pilkington North America, Inc., Defendant, represented by Matthew Culp, Rasmussen Willis Dickey Moore, pro hac vice, Matthew S. Jensen, Rasmussen Willis Dickey & Moore, LLC, pro hac vice & Jane H. Barney, J.H. Barney Law Firm, LLC. Bedivere Insurance Company, Defendant, represented by Samuel M. Rosamond, III, Taylor Wellons Politz & Duhe, APLC, Adam D. deMahy & Angela Jacketti O'Brien, Taylor, Wellons, Politz & Duhe, APLC.

Susannah Chester-Schindler, Attorney for Plaintiff not admitted to LAMD, Notice Only, Pro Se.

Susannah Chester-Schindler, Notice Only, represented by Susannah B. Chester-Schindler, Waters & Kraus, LLP.

ORDER

ERIN WILDER-DOOMES, Magistrate Judge.

Before the court is Plaintiffs' Joint Rule 25(a)(1) Motion for Substitution of Parties Plaintiff and Motion for Leave to File Plaintiffs' First Supplemental and Amended Complaint (the "Motion to Substitute and Amend").[1] Per the Motion to

Substitute and Amend, Pamela Coleman and Jody Coleman Nolte (collectively, "Movants") seek to be substituted in William Coleman's stead as plaintiffs and to "formally allege causes of action sounding in survival and wrongful death."[2] Movants assert that William D. Coleman, the named plaintiff in this suit, died from malignant mesothelioma on November 8, 2016, and that Movants are Mr. Coleman's statutory heirs and the proper persons to pursue survival and wrongful death claims.[3] The case was removed from state district court pursuant to 28 U.S.C. § 1332 based upon complete diversity of citizenship. [4] Per Movant's proposed First Supplemental and Amended Complaint, Movants continue to assert this court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332.[5]

On February 1, 2017, Movants filed the instant Motion to Substitute and Amend. However, Movants do not state whether defendants consent to or oppose the proposed amendment. Moreover, the proposed First Supplemental and Amended

Complaint does not allege the citizenship of the parties. The proposed First Supplemental and Amended Complaint includes no allegations regarding the citizenship of Pamela Coleman and Jody Coleman Nolte. The Fifth Circuit has explained that, " [f]or diversity purposes, citizenship means domicile; mere residence in the State is not sufficient." Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (citations omitted). Further, Movants' allegation that the defendants are "all foreign corporations" is insufficient to establish diversity jurisdiction. A corporation is a citizen of its place of incorporation and its principal place of business. 28 U.S.C. § 1332(c). See also, Getty Oil, Div. of Texaco v. Ins. Co. of North America, 841 F.2d 1254, 1259 (5th Cir.

1988)) (In diversity cases involving corporations, "allegations of citizenship must set forth the state of incorporation as well as the principal place of business of each corporation.").[6]

Accordingly,

IT IS HEREBY ORDERED that Movants file a motion to substitute the proposed pleading (R. Doc. 57-6) with a proposed pleading that properly sets forth the citizenship of the parties.

IT IS FURTHER ORDERED that Movants shall state in their motion to substitute whether defendants consent to the filing of the First Supplemental and Amended Complaint. Movants shall have seven (7) days from the date of this Order to file the motion to substitute without further leave of Court.

[1] R. Doc. 57.

[2] R. Doc. 57, p. 1.

[3] R. Doc. 57-1, p. 3.

[4] R. Doc. 1.

[5] R. Doc. 57-6, ¶ 4.

[6] In the Notice of Removal, Pilkington North America, Inc. alleges that it is "a Delaware corporation with its principal place of business in Ohio." R. Doc. 1, p. 3. In its Corporate Disclosure Statement, Liberty Mutual Insurance Company states that it "is a company organized under the laws of the State of Massachusetts and for federal court jurisdiction/diversity of citizenship disclosure purposes, the principal place of business is 175 Berkeley Street, Boston, Massachusetts." R. Doc. 3, p. 1. In its corporate disclosure statement, Travelers Casualty and Surety Company alleges that it is "an insurance company incorporated under the laws of the State of Connecticut with its principal place of business in Connecticut." R. Doc. 5, ¶ 2. "Safety National Casualty Corporation is an insurance company organized under the laws of the State of Missouri, and for Federal court jurisdiction/diversity of citizenship disclosure purposes, its principal place of business is in the State of Missouri." R. Doc. 6, p. 1. Bedivere Insurance Company does not assert its citizenship in its Corporate Disclosure Statement. R. Doc. 13. The Notice of Removal only alleges that Bedivere Insurance Company "is a foreign insurer" and a "Pennsylvania company." R. Doc. 1, p. 3. As explained herein, an allegation that Bedivere Insurance Company is a foreign insurer or Pennsylvania company is not a sufficient allegation for purposes of 28 U.S.C. § 1332, and Movants must instead allege Bedivere Insurance Company's place of incorporation and principal place of business (assuming that Bedivere Insurance Company is a corporation). In the event Bedivere Insurance Company is an unincorporated association, the citizenship of such association is determined by considering the citizenship of all its members. See, Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). To properly allege the citizenship of an unincorporated association, a party must identify each of the members of the association and the citizenship of each member in accordance with the requirements of 28 U.S.C. § 1332(a) and (c). The same requirement applies to any member of the association which is also an unincorporated association. See, Turner Bros. Crane and Rigging, LLCV v. Kingboard Chemical Holdings, Ltd., 2007 WL 2848154, at & 4-5 (M.D. La. Sept. 24, 2007) ("when partners or members are themselves entities or associations, the citizenship must be traced through however many layers of members or partners there may be, and failure to do [sic] can result in dismissal for want of jurisdiction.") (quotation and citations omitted).

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites