Civ. A. No. 84-615-B | M.D. La. | Oct 16, 1984
This matter is before the Court on the motion of the Village of Montpelier to remand these proceedings to the Twenty First Judicial District Court for the Parish of St. Helena, Louisiana. No oral argument is required on this motion.
The Village of Montpelier filed a suit for breach of contract and liquidated damages in the Twenty First Judicial District Court for the Parish of St. Helena. Named as defendants in the state court suit were Riche, Chenevert and Andress Construction Company, Inc. (RCACC), as principal, and American Druggist Insurance Company (ADIC) as RCACC’s surety. ADIC timely petitioned for removal of the case from the state court to the United States District Court for the Middle District of Louisiana based upon the diversity of citizenship of the parties. 28 U.S.C. §§ 1382 and 1441(b). Thereafter, the plaintiff filed this motion to remand. For reasons which follow, the Court finds that plaintiffs motion to remand should be granted.
On June 5, 1981, RCACC, a Louisiana corporation with its principal place of business in Cottonport, Louisiana, filed a petition for a Chapter 7 bankruptcy proceeding. 11 U.S.C. § 700 et seq. A final decree of bankruptcy was issued by the United States Bankruptcy Court for the Western District of Louisiana on December 28, 1983. On May 17, 1984, the plaintiff filed this suit in state court. ADIC premised its petition for removal and its subsequent opposition to plaintiffs motion to remand on the fact that since RCACC has been adjudi
The issue before this Court is whether a liquidated corporation’s citizenship should be considered for purposes of determining diversity jurisdiction in an action brought against a Chapter 7 liquidated corporation and its surety. Under the Bankruptcy Code,
It is incumbent upon the party invoking federal diversity jurisdiction to plead and prove the existence of such. Mas v. Perry, 489 F.2d 1396" court="5th Cir." date_filed="1974-04-03" href="https://app.midpage.ai/document/jean-paul-mas-v-oliver-perry-316244?utm_source=webapp" opinion_id="316244">489 F.2d 1396 (5th Cir.1974), rehearing denied 492 F.2d 1242" court="5th Cir." date_filed="1974-04-04" href="https://app.midpage.ai/document/national-lawyers-guild-university-of-texas-chapter-v-board-of-regents-of-university-of-texas-system-317419?utm_source=webapp" opinion_id="317419">492 F.2d 1242, cert. denied 95 S. Ct. 74" court="SCOTUS" date_filed="1974-10-15" href="https://app.midpage.ai/document/mohasco-industries-inc-v-acme-fast-freight-inc-8992135?utm_source=webapp" opinion_id="8992135">95 S.Ct. 74, 419 U.S. 842" court="SCOTUS" date_filed="1974-10-15" href="https://app.midpage.ai/document/demoon-v-illinois-8992131?utm_source=webapp" opinion_id="8992131">419 U.S. 842, 42 L.Ed.2d 70 (1974). ADIC alleged only that RCACC “has previously gone in bankruptcy-and is defunct and totally out of business, as of early 1980.” ADIC has not alleged that RCACC no longer had corporate existence at the time the suit was filed.
Therefore:
IT IS ORDERED that the motion of the plaintiff, Village of Montpelier, to remand these proceedings to the Twenty First Judicial District Court of the State of Louisiana, in and for the parish of St. Helena, be and it is hereby GRANTED.
Judgment shall be entered accordingly.
. 11 U.S.C. § 101 et seq.
. In addition, a corporation is not granted a discharge from debts when it undergoes a Chapter 7 proceeding. See 11 U.S.C. 727, which provides in pertinent part, that "[t]he court shall grant the debtor a discharge, unless ... the debtor is not an individual....”
. La.R.S./ 12:148(C) provides that "[u]pon issuance of the certificate of dissolution, the corporate existence shall cease as of the effective date stated in the certificate, except for the sole purpose of any action or suit commenced theretofore by, or commenced timely against the corporation.”
. In Vincent v. DeMaria Porsche-Audi, Inc., supra, the court held that if a suit were commenced prior to the dissolution of a corporation incorporated under the laws of the state of Florida, after such dissolution, the corporation would remain a citizen of Florida for the purpose of determining diversity jurisdiction.
. In State v. Taylor, supra, a corporation was held liable for franchise taxes for the period prior to the issuance and filing of the certificate of dissolution although the corporation had exercised none of its functions for two years.