United States District Court, E.D. Louisiana
LEROY MAZE, ET AL.
PROTECTIVE INSURANCE COMPANY, ET AL.
ORDER AND REASONS
D. Engelhardt United States District Judge
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.
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.
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.
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.
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)).
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.
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)).
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
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 ...