IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30526

In re: VALERO REFINING - NEW ORLEANS, L.L.C., 

 Petitioner

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.

United States Court of Appeals

Fifth Circuit

FILED

May 20, 2016

Lyle W. Cayce

Clerk

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No. 16-30526

2

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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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.

 Case: 16-30526 Document: 00513515454 Page: 3 Date Filed: 05/20/2016