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Case 2:12-cv-02611-JCZ-ALC Document 8 Filed 02/22/13 Page 1 of 18

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LISA T. LEBLANC, ET AL.

VERSUS

TEXAS BRINE, LLC

CIVIL ACTION

NO: 12-2059 C/W
12-2246, 12-2354,
12-2363, 12-2611
SECTION: "A" (4)

ORDER AND REASONS

[REF: 12-2246, Cedotal Plaintiffs]
[REF: 12-2611, LaBarre Plaintiffs]

Before the Court is a Motion to Remand (Rec. Doc. 16) filed
by plaintiffs Betty Cedotal, Trinity Guillot individually and on
behalf of Slade Guillot, and Charlotte Hebert (collectively
“Plaintiffs” or “the Cedotal Plaintiffs”) in Civil Action 12-
2246. Defendants Texas Brine Co., LLC and Occidental Chemical
Corp. oppose the motion. The motion, scheduled for submission on
January 30, 2013,1 is before the Court on the briefs without oral
argument.

Before the Court is a Motion to Remand (Rec. Doc. 63) filed

by plaintiffs Gustave J. LaBarre, Jr., et al. (collectively

1 The Cedotal Plaintiffs’ motion to remand was originally
noticed for submission on November 7, 2012, but the Court held
off ruling on the motion because some of the issues presented
were also pertinent to the other consolidated cases. (Rec. Doc.
73, Minute Entry dated 1/7/13, at 3 n.3). On January 17, 2013,
the Plaintiffs’ Steering Committee informed the Court that the
Cedotal Plaintiffs did not wish to voluntarily dismiss their
claims against the non-diverse defendant(s), and that the Court
should proceed to act on their motion to remand. All interested
parties have now filed their memoranda pertaining to the Cedotal
motion.

Case 2:12-cv-02611-JCZ-ALC Document 8 Filed 02/22/13 Page 2 of 18

“Plaintiffs” or “the LaBarre Plaintiffs”) in Civil Action 12-
2611. Defendants have responded to the motion. The motion,
scheduled for submission on February 27, 2013,2 is before the
Court on the briefs without oral argument.
I.

BACKGROUND
Betty Cedotal v. Texas Brine Co., LLC, 12-2246
Plaintiffs filed this putative class action in the 23rd
Judicial District Court, Assumption Parish, alleging damages
resulting from the development of a “sinkhole” on property
belonging to and/or under the control of Texas Brine Co., LLC
near the hamlet of Bayou Corne in Assumption Parish, Louisiana.
(Rec. Doc. 16-1, Plaintiffs’ Memo in Support at 2). Plaintiffs
claim that they have suffered personal injuries, emotional
damages, evacuation expenses, and property damages. The Cedotal
Plaintiffs seek to represent a class of similarly situated
individuals consisting of “those persons in or near the community
of Bayou Corne, Assumption Parish, Louisiana, who sustained
compensable damages from the fault of the defendant(s)” as
specified in the petition. (Rec. Doc. 1-4, Original Petition ¶
21). The parties estimate the size of the class to be at least

2 The LaBarre Plaintiffs’ motion to remand was originally
noticed for submission on January 16, 2013, but the motion was
reset for late February during the January 7, 2013, status
conference. (Rec. Doc. 73, Minute Entry).

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150 members.3

Three defendants are named in the Cedotal Plaintiffs’ case:

Texas Brine Co., LLC, Occidental Chemical Corp., and Miller
Engineers & Associates, LLC. Plaintiffs allege that Miller
Engineers “participated in the development and/or design
implementation of the salt cavern for production.” (Rec. Doc. 1-
4, Amended Petition ¶ 12(b)). Miller Engineers (“Miller”) is a
citizen of Louisiana so its presence in the lawsuit potentially
destroys diversity jurisdiction because Plaintiffs are also
citizens of Louisiana. Moreover, Plaintiffs specifically alleged
that their claims were less than the requisite amount required to
confer federal diversity jurisdiction, at least as of the time
that they filed the Original Petition (August 6, 2012). (Rec.
Doc. 1-4, Original Petition ¶ 20).

Texas Brine removed the Cedotal case to this Court alleging

original subject matter jurisdiction based on diversity of
citizenship (28 U.S.C. § 1332(a)). Texas Brine alleged that
Plaintiffs improperly joined Miller and that the jurisdictional
amount is met in this case. Texas Brine also alleged original
subject matter jurisdiction pursuant to the Class Action Fairness

3 Plaintiffs characterize the class as 150 members living in

the evacuation zone. (Rec. Doc. 16-1, Memo in Support, at 8),
while Texas Brine refers to 150 homes having been evacuated in
the area (Rec. Doc. 1 ¶ 29; Rec. Doc. 22, at 2 n.1). If 150
homes are involved, one can reasonably assume that multiple
plaintiffs live in each home, thereby making the class size much
larger than 150 members.

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Act (“CAFA”) (28 U.S.C. § 1332(d)). Occidental Chemical
consented to the removal. (Rec. Doc. 1-3).

The Cedotal Plaintiffs now move to remand the case to state
court. Plaintiffs argue that diversity jurisdiction is lacking
because Miller is not improperly joined and because the
allegations in the state court petition do not suggest that any
individual plaintiff’s claim will satisfy the jurisdictional
threshold, even when attorney’s fees are considered. Plaintiffs
also argue that the CAFA does not confer jurisdiction because the
amount in controversy does not meet the $5,000,000.00
requirement.

Gustave J. LaBarre v. Texas Brine Co., LLC, 12-2611
The Labarre Plaintiffs filed their petition in the 23rd

Judicial District Court, Assumption Parish. Fifty-eight
individual plaintiffs joined their various claims when filing
suit. The 58 named plaintiffs comprise three groups: the
LaBarre Plaintiffs, the Triche Plaintiffs, and the Dugas &
Leblanc Plaintiffs. Plaintiffs are making claims against three
groups of defendants: the Exploration and Production Defendants,
the Texas Brine Defendants, and the Louisiana Defendants
(“LDNR”). Plaintiffs allege that the historical oil and gas
exploration and production activities of the Exploration and
Production Defendants damaged their property, that the salt
mining operations of the Texas Brine Defendants damaged their

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property, and that the LDNR acted in a negligent manner so as to
damage Plaintiffs’ property.

Texas Brine removed the LaBarre matter to this Court

alleging original subject matter jurisdiction based on diversity
of citizenship (28 U.S.C. § 1332(a)). Numerous parties present
obstacles to the Court’s ability to exercise diversity
jurisdiction of the LaBarre case but Texas Brine contends that
the LaBarre Plaintiffs have improperly joined various defendants
as well as plaintiffs. The LaBarre case is not a class action so
jurisdiction under the CAFA is not available for the LaBarre
case.

The LaBarre Plaintiffs now move to remand the case to state

court. Plaintiffs argue inter alia that there is no diversity
jurisdiction because all of the parties and claims were properly
joined in the original state court case.
II. DISCUSSION

It is well-established that the party invoking the

jurisdiction of a federal court has the burden of proving that
the exercise of such jurisdiction is proper. In re North
American Philips Corp., 1991 WL 40259, at *2 (5th Cir. 1991). In
a removal case, the removing party bears that burden, a burden
unaffected by the status of discovery, the number of plaintiffs,
or any problems created by state law. Id. Any doubt regarding
whether removal jurisdiction is proper should be resolved against

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federal jurisdiction and in favor of remand. Acuna v. Brown &
Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v.
Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988)).

The district courts of the United States are “courts of

limited jurisdiction.” Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 125 S. Ct. 2611, 2616-17 (2005) (quoting Kokkonen v.
Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)). Subject
matter jurisdiction can never be forfeited or waived. Arbaugh v.
Y & H Corp., No. 04-944, slip op. at 12 (Feb. 22, 2006) (quoting
United States v. Cotton, 535 U.S. 625, 630 (2002)). Courts have
an independent obligation to determine whether subject matter
jurisdiction exists, even in the absence of a challenge from a
party. Id. (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
583 (1999)). The burden of establishing subject matter
jurisdiction in federal court rests with the party seeking to
invoke it. St. Paul Reinsur. Co. v. Greenberg, 134 F.3d 1250,
1253 (5th Cir. 1998) (citing Gaitor v. Penninsular & Occidental
Steamship Co., 287 F.2d 252, 253-54 (5th Cir. 1961)).
Betty Cedotal v. Texas Brine Co., LLC, 12-2246
The Cedotal case was removed based on diversity jurisdiction

and CAFA jurisdiction. The Cedotal Plaintiffs contend that
diversity jurisdiction does not exist because Defendants cannot
establish that Miller has been improperly joined and Defendants
cannot establish that any individual plaintiff’s claim will

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satisfy the jurisdictional threshold, even when attorney’s fees
are considered. Plaintiffs argue that the CAFA does not confer
jurisdiction because the amount in controversy does not meet the
$5,000,000.00 requirement.

1. Diversity Jurisdiction

a. Miller Engineers

Fraudulent or improper joinder can be established in two

ways: (1) actual fraud in the pleading of jurisdictional facts,
or (2) inability of the plaintiff to establish a cause of action
against the non-diverse party in state court. Travis v. Irby,
326 F.3d 644, 647 (5th Cir. 2003) (citing Griggs v. Kennedy
Lloyds, 181 F.3d 694, 698 (5th Cir. 1999)). Defendants do not
allege actual fraud in the pleadings so only the second method of
establishing improper joinder is at issue in the Cedotal case.
The test for the second category of fraudulent joinder is

whether the defendant has demonstrated that there is no
possibility of recovery by the plaintiff against an in-state
defendant. Smallwood v. Ill. Cent. R.R., 385 F.3d 568, 573 (5th
Cir. 2004) (citing Travis, 326 F.3d at 648). Stated differently,
this requires that there is no reasonable basis for the district
court to predict that the plaintiff might be able to recover
against an in-state defendant. Id.

A court may resolve the question of whether the plaintiff

has a reasonable basis for recovery under state law in one of two

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ways. The court may conduct a Rule 12(b)(6)-type analysis,
looking initially at the allegations in the complaint to
determine whether the complaint states a claim under state law
against the in-state defendants. Smallwood, 385 F.3d at 573
(citing McKee v. Kansas City S. Ry., 358 F.3d 329, 334 (5th Cir.
2004)). Ordinarily if the plaintiff can survive a Rule 12(b)(6)
challenge then there is no improper joinder. Id.

Where a plaintiff appears to state a claim but has perhaps

misstated or omitted discrete facts that would determine the
propriety of joinder, the district court may in its discretion
pierce the pleadings and conduct a summary inquiry. Smallwood,
385 F.3d at 573 (citing Badon v. RJR Nabisco, Inc., 236 F.3d 282,
389 n.10 (5th Cir. 2000)). A summary inquiry is appropriate only
to identify the presence of discrete and undisputed facts that
would preclude the plaintiff’s recovery against the in-state
defendant. Id. (citing Irby, 326 F.3d at 648-49). But any
piercing of the pleadings should not entail substantial hearings.
Id. Attempting to proceed beyond a summary process, particularly
one that involves discovery, carries a heavy risk of moving the
court beyond jurisdiction and into a resolution of the merits.
Id. Indeed, the inability to make the requisite decision in a
summary manner itself points to the inability of the removing
party to carry its burden. Id.

Miller Engineers is a Louisiana company that Texas Brine

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retained for land surveying services related to elevation. (Rec.
Doc. 1-2, Martin Affidavit, Exhibit 1 to Notice of Removal). The
Cedotal Plaintiffs allege that Miller participated in the
development and/or design implementation of the salt cavern for
production. (Rec. Doc. 1-4, First Supp. & Amend. Petition at ¶
12(b)). According to the Cedotal Plaintiffs, Miller could be
liable if it failed to recognize and/or failed to warn of
subsidence in the days, months, and years leading up to the
sinkhole that would demonstrate surface instability. (Rec. Doc.
16-1, Memo in Support at 6).

Defendants contend that the Cedotal Plaintiffs’ allegations

are too conclusory to survive a claim of improper joinder, and
that Plaintiffs have not presented sufficient factual evidence to
create a genuine dispute as to whether Miller breached a duty
that it personally owed to Plaintiffs. (Rec. Doc. 22, Texas
Brine Memo at 7). But Defendants’ mere invocation of improper
joinder does not place an evidentiary burden of production on
Plaintiffs to prove their case against the in-state defendant.
Plaintiffs have not had the benefit of discovery so they cannot
possibly be expected to counter evidence like the Martin
affidavit that Texas Brine submitted. In Smallwood, the Fifth
Circuit explained the very limited purpose for which the court
can consider evidence outside of the pleadings for purposes of
resolving an improper joinder allegation. Smallwood makes clear

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that the Court cannot in essence grant summary judgment in favor
of a party by resolving the merits. Thus, the Court cannot
properly consider whether Plaintiffs will ultimately prevail on
their burden of persuasion as to any fault by Miller.

The Court can, however, consider issues of pure law that may

affect the plaintiff’s ability to recover against a non-diverse
defendant. Under Louisiana law a threshold question that must be
addressed when considering the possibility of tort liability is
whether the defendant owed a duty to the plaintiff. See Pitre v.
Opelousas Gen. Hosp., 530 So. 2d 1151, 1155 (La. 1988). In other
words, given the relationship and circumstances of the parties,
does the law impose on the defendant a duty of reasonable conduct
for the benefit of the plaintiff? Id. Defendants contend that
under Louisiana law Miller owed no duty to Plaintiffs so as to
allow them to recover for any contributing fault by Miller, even
if any fault is actually proved.

To be sure, Plaintiffs’ ability to recover from Miller is
extremely limited under Louisiana law because generally Miller
will have owed no duty to Plaintiffs to warn them of problems in
Assumption Parish. See, e.g., Smith v. State Farm Ins. Co., 869
So. 2d 909, 913 (La. App. 4th Cir. 2004); Lemaire v. Breaux, 788
So. 2d 498, 503 (La. App. 5th Cir. 2001). And Plaintiffs were
not parties to the contract between Texas Brine and Miller so
they likely lack standing to claim damages from any warnings that

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Miller might have failed to give to Texas Brine. But even legal
questions like duty and standing are driven by the facts and
because of the status of discovery the facts as to Miller’s
involvement in the case are sparse. But the lack of discovery
does not inure to the removing Defendants’ benefit for purposes
of the improper joinder analysis. The standard for improper
joinder requires Defendants to establish that Plaintiffs have no
possibility of recovery against Miller–-mere proof that the
possibility of recovery is remote or even unlikely will not
suffice for the Court to ignore Miller’s presence in the case and
exercise diversity jurisdiction. The Court is persuaded that
Defendants have failed to establish that Plaintiffs have
improperly joined Miller. Miller’s presence in the lawsuit
destroys complete diversity and the Court cannot exercise
diversity jurisdiction over the Cedotal case.
b. Amount in Controversy

The question of whether at least one plaintiff’s claim

exceeds $75,000.00, see Exxon Mobil, 545 U.S. at 559, is now moot
because complete diversity of citizenship is lacking.

2. Class Action Fairness Act

Because diversity jurisdiction does not exist, the Court’s
ability to exercise subject matter jurisdiction over the Cedotal
complaint turns on whether CAFA applies. Moreover, all of the
other consolidated cases (with the exception of the LaBarre

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complaint discussed below) allege subject matter jurisdiction
under CAFA. None of the parties to the LeBlanc (12-2059), Hill
(12-2363), and Alleman (12-2363) cases have challenged subject
matter jurisdiction under CAFA but the Court is nevertheless
obliged to sua sponte examine whether it has subject matter
jurisdiction over the other consolidated complaints.

CAFA gives the district courts original jurisdiction over
any civil action in which the matter in controversy exceeds the
sum or value of $5,000,000, exclusive of interest and costs, and
is a class action in which any member of a class of plaintiffs is
a citizen of a state different from any defendant. 28 U.S.C. §
1332(d)(2)(A). The claims of the individual class members shall
be aggregated to determine whether the amount in controversy
requirement is satisfied. Id. § 1332(d)(6). The term “class
action” means any civil action filed under Rule 23 of the Federal
Rules of Civil Procedure or similar state rule authorizing an
action to be brought on a representative basis. Id. §
1332(d)(1)(B). CAFA jurisdiction, where appropriate, applies to
any class action before or after the entry of a class
certification order. Id. § 1332(d)(8).

In this case, it is undisputed that the Cedotal case is a

class action as defined by CAFA. Further, the minimum diversity
requirement of CAFA is satisfied because Texas Brine is a citizen
of Texas, diverse in citizenship from any one of the several

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Louisiana plaintiffs. The sole dispute with respect to
jurisdiction under CAFA is the amount in controversy
requirement.4 The Cedotal Plaintiffs contend that Defendants
cannot satisfy their burden of establishing that the amount in
controversy exceeds $5,000,000, particularly as of the time of
removal. (Rec. Doc. 16-1, Memo in Support at 10). Plaintiffs
argue that they have not alleged sufficient facts upon which to
conclude that the amount in controversy is facially apparent from
the petition. Plaintiffs point out that the petition is wholly
lacking as to any allegations of severe injuries. Plaintiffs
also dispute the “analogous” cases that Defendants have cited in
support of their argument that the amount in controversy for this
case exceeds $5,000,000.

In Luckett v. Delta Airlines, Inc., the Fifth Circuit

summarized the analytical framework for determining whether the
amount in controversy requirement is met in cases removed from
Louisiana state courts where specific allegations as to damage
quantum are not allowed. 171 F.3d 295, 298 (5th Cir. 1999). In
such cases, the removing defendant, as the party invoking the
federal court’s jurisdiction, bears the burden of proving, by a
preponderance of the evidence, that the amount in controversy
exceeds $75,000. Id. (citing De Aguilar v. Boeing Co., 11 F.3d

4 Plaintiffs have not invoked any of the statutory

exceptions to CAFA jurisdiction.

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55, 58 (5th Cir. 1993)). As the Fifth Circuit explained:

The defendant may make this showing in either of two
ways: (1) by demonstrating that it is "facially apparent"
that the claims are likely above [the jurisdictional
amount], or (2) by setting forth the facts in controversy
– preferably in the removal petition, but sometimes by
affidavit – that support a finding of the requisite
amount.

Id. (citing Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th
Cir. 1995)).

If the Court were required to limit its analysis solely to
the face of the Cedotal petition then the Court might agree that
it is not facially apparent from the petition that the amount in
controversy exceeds $5,000,000. The Cedotal petition is quite
sparse as to any factual allegations explaining the severity and
scope of the damages sought. But such reticence is not
surprising because in Louisiana a plaintiff receives all relief
to which he is entitled even if he has not demanded it in his
pleading, La. Code Civ. Pro. 862, and over pleading his case only
serves to help the defendant meet its burden of proof as to the
amount in controversy.

In Frazier v. Pioneer Americas, LLC, the Fifth Circuit

concluded that it was facially apparent from the petition filed
in that case that the amount in controversy exceeded $5,000,000.
455 F.3d 542, 545 (5th Cir. 2006). Frazier dealt with exposure
to unacceptable levels of mercury for a two month period by a
class of about 500 members. The petition in Frazier did not

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detail any specific personal injuries sustained by any specific
plaintiffs, but mercury was alleged to be particularly harmful so
the Fifth Circuit accepted the characterization of the
plaintiffs’ potential injuries as “severe.” Frazier, 455 F.3d at
545.

The Cedotal petition does not allege the particular

substances involved so they might not be as noxious as mercury,
even though the substances involved were sufficient to cause a
strong odor that burned noses and eyes. (Rec. Doc. 1-4, Petition
¶ 6). Also, the class alleged in Cedotal is not as large as the
500 member class in Frazier, but even though the Cedotal class is
smaller than the Frazier class, the class damages in Cedotal are
undisputedly damages that are ongoing and will seemingly continue
to accrue for an indefinite amount of time. Moreover, the
property damage aspects of the case may implicate a permanent and
total loss of the property involved. Thus, under Fifth Circuit
standards, the Cedotal petition may or may not present a facially
apparent case of subject matter jurisdiction..

Of course, the law in this circuit as explained in Luckett,

does not limit the Court’s analysis to the face of the Cedotal
petition because the removing defendant can use the notice of
removal to expound upon the facts that support the jurisdictional
amount. Texas Brine has alleged some additional facts, such as
the fact that weekly housing checks have been issued to the class

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members. (Rec. Doc. 1, Ntc. Rem. ¶ 29). But Texas Brine has
also relied heavily on analogous cases in quantum study fashion
to demonstrate that the amount in controversy in this case
exceeds $5,000,000. (Id. ¶ 22). But heavy reliance on the
quantum of recovery in other reported cases is not likely to
suffice. See Berniard v. Dow Chem. Co., 481 Fed. Appx. 859, 863
(5th Cir. 2010) (unpublished).

The Court is nonetheless persuaded that the jurisdictional
threshold for CAFA has been demonstrated in Cedotal, as well as
in the consolidated cases. Even though consolidation cannot be
used to impute jurisdiction from one case to another, see In re
Excel Corp., 106 F.3d 1197 (5th Cir. 1997); McKenzie v. United
States, 678 F.2d 571, 574 (5th Cir. 1982) (“[C]onsolidation does
not cause one civil action to emerge from two; the actions do not
lose their separate identity; the parties to one action do not
become parties to the other.”), the Court is persuaded that it
can take judicial notice of the facts alleged in the consolidated
cases because those class action complaints/petitions overlap
factually with the Cedotal class action and involve the same
parties, and the other cases serve to clarify the scope of
damages implicated by the class that the Cedotal Plaintiffs seek
to represent.

Even though the class size involved is not particularly

large when compared to other classes, these cases do not involve

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a quickly controlled and temporary exposure to harmless
substances. The allegations are that surface bubbling was
observed prior to August 3, 2012, when a mandatory evacuation was
ordered. The damages to the plaintiff class continue to accrue
indefinitely because many cannot safely return to their homes and
businesses and it is unclear when they will be able to do so.
For some members of the class their property may be a total loss.
There are allegations that radioactive materials might have been
stored in the cavern. (12-2354, Hill Complaint ¶ 10). The
damages sought by the class members run the gamut from medical
monitoring, business interruption, lost wages, property damage,
evacuation expenses, property remediation, emotional injury, and
economic damages associated with mortgage obligations. Again,
these damages began to accrue at the latest in August of 2012 and
they continue to accrue as of this writing. The Court is
persuaded that in light of the ongoing and continuous nature of
the damages, as well as the extremely broad scope of damages
sought by the class, the amount in controversy for the class that
the Cedotal Plaintiffs want to represent, as well as the
plaintiffs in LeBlanc, Hill, and Alleman, exceeds $5,000,000.

The Cedotal Plaintiffs’ motion to remand is therefore

DENIED.

Gustave J. LaBarre v. Texas Brine Co., LLC, 12-2611
For the reasons explained in the Cedotal ruling supra,

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complete diversity is lacking as to the sinkhole claims because
Miller Engineers is a defendant. Moreover, Texas Brine has
acknowledged that Savoie Land Holdings, LLC also destroys
complete diversity in the LaBarre case. (Rec. Doc. 78). The
LaBarre case is not a putative class action so subject matter
jurisdiction under CAFA does not apply to the LaBarre complaint.
The motion to remand the LaBarre case is therefore GRANTED and
the LaBarre case is REMANDED to the state court from which it was
removed for lack of subject matter jurisdiction.

Accordingly;
IT IS ORDERED that the Motion to Remand (Rec. Doc. 16) filed
by plaintiffs Betty Cedotal, Trinity Guillot individually and on
behalf of Slade Guillot, and Charlotte Hebert is DENIED;

IT IS FURTHER ORDERED that the Motion to Remand (Rec. Doc.

63) filed by plaintiffs Gustave J. LaBarre, Jr., et al. is
GRANTED. The LaBarre case is REMANDED to the state court from
which it was removed for lack of subject matter jurisdiction;

IT IS FURTHER ORDERED that the Motion for Preliminary

Hearing (Rec. Doc. 59) filed by Adams Resources is DENIED AS
MOOT.

February 21, 2013

_______________________________



18

JAY C. ZAINEY

UNITED STATES DISTRICT JUDGE