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Maze v. Protective Insurance Co.

United States District Court, E.D. Louisiana

January 17, 2017


         SECTION “N” (3)


          Kurt D. Engelhardt United States District Judge

         Presently before the Court is the motion to remand filed by Plaintiffs Leroy Maze, Clara Matthews George, Eddie Matthews, and Zackier Johnson. See Rec. Doc. 6. Having carefully considered the record, the parties' submission, and applicable law, IT IS ORDERED that Plaintiffs' motion is GRANTED. IT IS FURTHER ORDERED that this action be and hereby is REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.


         On September 1, 2016, Plaintiffs filed a petition for damages in the Civil District Court for the Parish of Orleans, State of Louisiansa, asserting negligence claims arising out of a motor vehicle accident occurring on or about was involved on September 11, 2015. Specifically, Plaintiffs allege that they were in a vehicle that was struck when a “vehicle owned Greenwood Motor Lines, Inc., d/b/a R&L Carriers and operated by Defendant Gregory Cavalier . . . failed to yield and struck the vehicle occupied by Plaintiffs, causing them severe and disabling injuries." See Petition for Damages ("Pet"), Rec. Doc. 1-1, §3. According to Plaintiffs, the “sole and proximate cause of the above referenced accident was the negligence and fault of the defendant, Gregory Cavalier. . . . ” Id. at § 4. Plaintiffs' petition requests an award of "damages as are reasonable in the premises, including past physical pain and suffering, future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, rental expenses, property damage, loss of use and/or depreciation of vehicle, past and future medical expenses, loss of past and future earnings, loss of future earning capacity, permanent disability to the body, loss of consortium, loss of enjoyment of life, and penalties and attorney's fees, together with legal interest thereon from date of judicial demand, until paid, and for all costs of these proceedings[.]" Id. at § 8 ¶ 1. The petition also includes, however, a statement that the "amount in controversy in this case does not exceed the sum or value of $75, 000.00 exclusive of interest and costs." Id. at § 8 ¶ 2.

         Asserting that 28 U.S.C. § 1332 provides federal diversity jurisdiction, Defendants, Protective Insurance Company, Greenwood Motor Lines, Inc., d/b/a R&L Carriers ("Greenwood") and Gregory Cavalier, removed the matter to federal court. Plaintiffs' motion to remand followed, contending that the amount in controversy does not meet the requirements of 28 U.S.C. §1332 such that the action must be remanded to state court. See Rec. Doc. 6, p.1.


         "A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction." Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Diversity of citizenship subject matter jurisdiction requires that the matter in controversy exceed the sum of $75, 000, exclusive of interest and costs. See 28 U.S.C. § 1332. Under Fifth Circuit jurisprudence, a removing defendant's burden in establishing the requisite amount in controversy differs depending on whether the complaint alleges a specific amount of monetary damages. See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). When the plaintiff alleges a specific damage figure that exceeds the requisite amount in controversy, "that amount controls if made in good faith." Id. (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1939)). The same is true, barring removal, if a plaintiff pleads damages less than the jurisdictional amount. Allen, 63 F.3d at 1335. "Thus, in the typical diversity case, the plaintiff is the master of his complaint." Id.

         In this instance, however, Plaintiffs filed suit in Louisiana state court. There, procedural rules do not allow plaintiffs to plead a specific amount of money damages in the petition. See La. Code Civ. Proc. art. 893. Under such circumstances, the Fifth Circuit requires the removing defendant to prove by a preponderance of the evidence that the amount in controversy exceeds $75, 000. See Manguno, 276 F.3d at 723 (citing De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995)). “This requirement is met if (1) it is apparent from the face of the petition that the claims are likely to exceed $75, 000, or, alternatively, (2) the defendant sets forth 'summary judgment type' evidence of facts in controversy that support a finding of the requisite amount.” Id. The jurisdictional facts supporting removal are examined as of the time of removal. See Gebbia v. Wal-mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). "The removal statute must 'be strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand.'" Herring v. Metro. Prop. & Cas. Ins. Co., Civil Action No. 10-935, 2013 WL 3893282, at *2 (E.D. La. July 26, 2013) (Engelhardt, J.) (quoting In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007)).

         Louisiana law, however, does require a plaintiff to state “a general allegation that the claim exceeds or is less than the requisite amount” to establish “the lack of jurisdiction of federal courts.” La. Code Civ. Proc. art. 893(A)(1). A plaintiff's failure to stipulate that damages cannot exceed $75, 000, however, is not determinative of the remand inquiry. See, e.g., Carbajal v. Caskids Oil Operating Co., Civil Action No. 05-5966, 2006 WL 1030392, at *2 (E.D. La. Apr. 18, 2006) (Africk, J.) Rather, it constitutes only one factor. Id.

         Similarly, a general allegation that a plaintiff's claims are above or below the federal jurisdictional requirement, made in accordance with Article 893(A)(1), is likewise not dispositive of whether the amount in controversy requirement is met. McCord v. ASI Lloyds/ASI Underwriters, Civil Action No. 13-126, 2013 WL 1196671, at *2 (E.D. La. Mar. 22, 2013) (Vance, J.) This is because these general allegations “will not be binding on [a plaintiff's] recovery under Louisiana law.” Id. (quoting Mouton v. Meritplan Ins. Co., No. 10-1643, 2010 WL 2978495, at *2 n. 15 (E.D. La. July 20, 2010) (citing Pierce v. State Farm Fire & Cas. Co., No. 09-7442, 2010 WL 1817799, at *2 (E.D. La. Apr. 30, 2010)). Thus, courts treat these general allegations as stating an “indeterminate amount of damages.” Mouton, 2010 WL 2978495, at *2 & n. 15 (treating a general allegation in a plaintiff's petition that damages were less than $75, 000 as alleging an indeterminate amount); see Hammel v. State Farm Fire & Cas. Co., Nos. 06-7470, 06-9615, 2007 WL 519280, at *3 (E.D. La. Feb. 14, 2007) (treating plaintiffs' allegation that their “claim does not exceed $75, 000” in their petition as alleging an “indeterminate amount of damages”). Finally, "an allegation made under Article 893(A)(1) may be disregarded if the defendant can show by a preponderance of the evidence that the claim is for more than the jurisdictional amount." In re 1994 Exxon Chem. Fire, 558 F.3d 378, 388 (5th Cir. 2009) (citing Richard v. Ga. Gulf Lake Charles, 2007 WL 2319804 at *7 (W. D. La. Aug. 10, 2007) (defendant may still prove by a preponderance of the evidence that claim is for more than the jurisdictional amount, even when a plaintiff alleges, under Article 893, that damages are insufficient to satisfy the amount in controversy)).

         If a defendant meets its burden by a preponderance of the evidence, a plaintiff may still defeat removal if he or she shows that it is legally certain that his or her recovery will be less than $75, 000. See De Aguilar, 47 F.3d at 1411-12. To satisfy this standard, absent a statute limiting recovery, “[l]itigants who want to prevent removal must file a binding stipulation or affidavit with their complaints.” Id. at 1412 (emphasis added).

         Regarding this requirement, the Fifth Circuit has explained:

The general principle is that plaintiffs will have to show that they are bound irrevocably by their state pleadings in these situations. Certainly, plaintiffs who plead for specific damages and who are in states that have procedural rules binding them to their pleadings will satisfy their burdens more easily. Others will have the same opportunity to avoid federal court but ...

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