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Thompson v. Acceptance Indemnity Insurance Co.

United States District Court, E.D. Louisiana

December 29, 2014

THOMPSON
v.
ACCEPTANCE INDEMNITY INSURANCE COMPANY et al., SECTION:

ORDER

NANNETTE JOLIVETTE BROWN, District Judge.

Before the Court is Plaintiff Wesley Thompson's ("Thompson") "Motion to Remand"[1] and "Motion to Strike Defendants' Untimely Filed Memorandum and/or Alternatively to Consider Plaintiff's Reply Memorandum."[2] Having considered the motions, the memoranda, the record and the applicable law, the Court will deny both motions.

I. Background

This litigation arises out of an automobile collision that occurred on or about June 20, 2013, wherein Thompson's vehicle was allegedly struck in the rear by a vehicle owned and operated by Defendant Billy Jordan ("Jordan") and insured by Defendant Acceptance Indemnity Insurance Company ("Indemnity Insurance") (collectively, "Defendants").[3] Thompson alleges that the accident was caused by the negligence of Jordan.[4] There appears to be no dispute that Thompson is a citizen of Louisiana, Jordan is a citizen of Mississippi, and Indemnity Insurance is a Nebraska corporation.[5]

On January 23, 2014, Thompson sent a settlement demand letter to Defendants, offering to resolve all claims in this matter for the total amount of $80, 880.[6] The parties did not enter into the proposed settlement, and on May 1, 2014, Thompson filed suit against Defendants in the Civil District Court for the Parish of Orleans.[7] Defendants were served on May 19, 2014.[8] Defendants removed the case to federal court on June 18, 2014, alleging that this Court has diversity jurisdiction pursuant to 28 U.S.C. ยงยง 1332 and 1441.[9]

On July 14, 2014, Thompson filed the pending Motion to Remand, along with a stipulation dated June 23, 2014, wherein he states that:

[Thompson] stipulates and agrees that he waives all rights to and will make no attempt to enforce and/or collect any judgment in excess of a total of $75, 000.00 for all claims, attorney's fees, or any other incidental expenses rendered against any defendant, their officers, directors, stockholders, agents, servants, employees and insurers, and including any and all incidental claims, claims for loss of consortium, etc.[10]

Defendants filed a memorandum in opposition to the motion to remand on August 12, 2014.[11] On August 14, 2014, Thompson filed a "Motion to Strike Response/Memorandum in Opposition to Motion by Wesley Thompson, "[12] which was set for submission on September 3, 2014. Thompson filed a "Supplemental and Amending Memorandum in Support of Motion to Remand"[13] on November 7, 2014. Defendants have not filed any subsequent memoranda in this case.

II. Motion to Strike Defendants' Untimely Filed Memorandum

A. Parties' Arguments

Thompson moves to strike Defendants' memorandum in opposition to his motion to remand[14] because it was filed on August 12, 2014, six days after the matter was set to be heard.[15] Alternatively, he requests the Court to construe his Motion to Strike as a reply memorandum in further support of his Motion to Remand. Thompson avers that he made a demand of $80, 880 against Defendants, who responded with an offer of $14, 000.[16] He contends that he subsequently orally lowered the demand to $75, 000, and that on March 20, 2014, Defendants made a written offer of $15, 500.[17] According to Thompson, "[t]his provides evidence that more than three months before the filing of removal, the defendants were aware that the amount in controversy was less than $75, 000."[18]

Thompson argues that the jurisdictional facts must be made at the time of removal when, in this case, he had already lowered his demand to $75, 000.[19] Thompson further contends that "a court may consider post-removal evidence that clarifies the jurisdictional facts as they existed at the time of removal."[20] Accordingly, Thompson avers, his June 23, 2014 stipulation[21] may be considered because it is "post-removal evidence" that further clarifies the facts in this case.[22] Finally, Thompson argues that:

[Defendants were] aware that the amount in controversy was less than $75, 000.00 more than three months before filing for removal. They could have settled the claim at anytime before the claim being filed for $75, 000.00, but chose not to do so. Therefore, at the time of removal there was a ...

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