     Case: 16-30526      Document: 00513515454         Page: 1    Date Filed: 05/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-30526                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
In re: VALERO REFINING - NEW ORLEANS, L.L.C.,                               May 20, 2016
                                                                           Lyle W. Cayce
              Petitioner                                                        Clerk




                          Petition for a Writ of Mandamus
                        to the Eastern District of Louisiana
                               USDC No. 2:15-CV-795


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Pending before this court is a Petition for Writ of Mandamus by Valero
Refining-New Orleans, L.L.C. (“Valero”), intervenor in the underlying personal
injury action. In its Petition, Valero seeks to vacate the district court’s order
permitting an inspection to go forward at Valero’s refinery, which Valero
contends will be unduly risky and costly.
       While the Petition was pending before this Court (indeed, before the
briefing deadlines had passed), Valero filed a Motion to Dismiss this entire
action for lack of subject matter jurisdiction. Specifically, Valero contends that
its presence in this suit destroys complete diversity because both Valero and
defendants in the underlying action, Circuit Breaker Sales Company, Inc. and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-30526       Document: 00513515454    Page: 2   Date Filed: 05/20/2016



                                   No. 16-30526
Circuit Breaker Sales and Repair, Inc. (collectively “Circuit Breaker”) are
citizens of Texas. At the time Valero intervened, the citizenship of all parties
was clearly set out in various pleadings, and Valero represented that its
presence would not destroy diversity and that it was “authorized to do and
doing business in the State of Louisiana.” Only now, on appeal, does Valero
claim that it is in fact a citizen of Texas, and that because there is no complete
diversity under 28 U.S.C. § 1332, the entire action should be dismissed.
         In response, the plaintiffs in the underlying action, Jeff Michael Gaudet
and Michelle Paille Gaudet, essentially agree with Valero’s jurisdictional
contention and state that this matter must proceed in state court. Circuit
Breaker disagrees, arguing that Valero is not an “indispensable party”; that its
interests may be represented by its worker’s compensation carrier without
destroying diversity; that, in the alternative, we may exercise discretionary
jurisdiction over Valero’s intervention claims; that we should defer ruling until
the district court rules on its pending Motion for Leave to Conduct Limited
Jurisdictional Discovery; and that, in the event diversity jurisdiction is lacking,
the proper response is dismissal without prejudice, not remand to the state
court.
         We cannot rule on the Petition for Writ of Mandamus without
jurisdiction, but we are not equipped to rule on the jurisdictional motion
without additional information. The district court is in a better position to
resolve the jurisdictional question in the first instance, particularly because
Circuit Breaker’s Motion for Leave to Conduct Limited Jurisdictional
Discovery is already before it.




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                                  No. 16-30526
      Accordingly, we REMAND this matter in full to the district court for a
jurisdictional determination. If jurisdiction is found to exist, Valero may re-file
its Petition for Writ of Mandamus before this Court. All pending motions,
including Valero’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
and Valero’s Motion for Leave to Submit Evidence Quoted in Response Brief,
are DENIED AS MOOT.
      IT IS SO ORDERED.




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