Dora Boudreaux v. United States Flood Control Corporation

Case: 10-30288 Document: 00511198191 Page: 1 Date Filed: 08/09/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 9, 2010

No. 10-30288 Lyle W. Cayce
Summary Calendar Clerk

DORA A. BOUDREAUX, Trustee for Alzec J. Autin Revocable Living Trust,

Plaintiff - Appellee
v.

U.S. FLOOD CONTROL CORPORATION,

Defendant - Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-3211

Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
The trustee of the Alzec J. Autin Revocable Living Trust, Dora Boudreaux
(“Boudreaux”), brought suit against U.S. Flood Control Corporation (“U.S.
Flood”) in Louisiana state court, alleging trespass on land owned by the trust.
Boudreaux alleged that U.S. Flood, through the actions of its local employee,
Toby Champagne (“Champagne”), had, without consent, stored materials on the

*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-30288

trust’s land. U.S. Flood removed the suit to the United States District Court for
the Eastern District of Louisiana on the basis of diversity jurisdiction.
Following removal, U.S. Flood moved for summary judgment, claiming
that it could not be held vicariously liable for Champagne’s actions because he
was not acting within the course and scope of his employment. In response to
this motion, Boudreaux sought leave to add Champagne as a defendant both in
his capacity as an employee of U.S. Flood and in his individual capacity.
The motions for leave to amend were referred to a magistrate judge who
determined that Boudreaux had been unreasonably dilatory in seeking the
amendments and denied the motions. Boudreaux appealed the ruling, arguing
that she would be significantly injured if not permitted to add Champagne as a
defendant.
The district court agreed with Boudreaux, permitted amendment of her
complaint, determined that the addition of Boudreaux defeated its subject
matter jurisdiction, and remanded the suit to Louisiana state court. U.S. Flood
appealed this order, noticing both the leave to amend and the remand orders.
“Before we can proceed to the merits of this appeal, we must examine
whether we have jurisdiction to do so. We have jurisdiction to determine our
own jurisdiction.” Martin v. Halliburton, 601 F.3d 381, 386 (5th Cir. 2010)
(citing Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 169 (5th
Cir.2009)). Under 28 U.S.C. § 1447(e), “[i]f 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.” 28 U.S.C. § 1447(e). And under § 1447(d), “[a]n order
remanding a case to the State court from which it was removed is not reviewable
on appeal or otherwise . . . .” Id. § 1447(d).
We have construed § 1447 as prohibiting review of orders remanding cases
for lack of subject matter jurisdiction where lack of jurisdiction resulted from

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No. 10-30288

joinder of non-diverse parties. See Doleac ex rel. Doleac v. Michalson, 264 F.3d
470, 493 (5th Cir. 2001) (dismissing appeal because “the amendment joining
[nondiverse party] as a defendant was a separable order but did not come within
the collateral order exception. Therefore, § 1447(d) bars our review of the
remand and also of the amendment itself. Such preclusion, based upon the
dictates of § 1447(d), is not unconstitutional.”). “We are bound by this
precedent.” Martin, 601 F.3d at 390 (citing United States v. Rose, 587 F.3d 695,
705 (5th Cir. 2009) (per curiam)).
APPEAL DISMISSED.

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