United States District Court, E.D. Louisiana
TONJA R. WRIGHT
NATIONAL INTERSTATE INSURANCE COMPANY ET AL
ORDER & REASONS
the Court is Plaintiff's Motion to Remand. R. Doc. 8.
Having reviewed the parties' briefs and the applicable
law, the Court now issues this Order & Reasons.
case arises out of an automobile accident. On September 9,
2015, Plaintiff Tonja Wright (“Wright” or
“Plaintiff”) was operating her 2011 Ford Escape
in Tangipahoa Parish, Louisiana, when she was struck by a
2015 Kenilworth tractor and trailer owned by Defendant Mabe
Trucking Company, Inc. (“Mabe”), and operated by
Defendant Terry Tearle Poole (“Poole”). R. Doc.
1-1 at 2. Wright also brings this case on behalf of her minor
son Noah Jackson (“Jackson”), who was travelling
with her in the car at the time of the alleged accident. In
her motion, Plaintiff provides a list of communications
regarding her injuries between herself and Mabe's and
Poole's insurer, Defendant National Insurance Company,
from November 13, 2015, to August 8, 2016. R. Doc. 8-1 at
filed suit in state court on August 23, 2016, seeking damages
for past and future mental and physical pain and suffering,
property damage, loss of use of vehicle, depreciation, rental
expenses, medical expenses, loss of past earnings, loss of
future earning capacity, disability, scarring and
disfigurement, loss of consortium, and penalties and
attorneys' fees. R. Doc. 1-1 at 1, 4. While La. Code Civ.
Proc. Art. 893(A)(1) prohibits plaintiffs from alleging a
specific amount of monetary damages, Plaintiff could have
stated in her initial complaint that the amount in
controversy satisfied, or failed to satisfy, federal
jurisdiction requirements. In her pleading, Plaintiff
referred to her injuries as “severe and disabling,
” without elaborating on the nature of the injuries.
Id. at 3. On November 1, 2016, Defendants received
medical records in response to a subpoena that indicated
Plaintiff had undergone cervical fusion surgery. R. Doc. 1 at
4. Defendants filed their notice of removal from state court
on November 9, 2016, maintaining that Plaintiff's damages
could reasonably exceed $75, 000. Id. at 4, 6.
Wright filed the present Motion to Remand. R. Doc. 8. Wright
maintains that Defendants' removal was untimely, and asks
this Court to remand the present action to state court.
Id. at 1. Wright does not dispute that the parties
are diverse and the amount in controversy exceeds $75, 000,
but contests the timeliness of the Notice of Removal. R. Doc.
8-1 at 4.
Plaintiff's Motion to Remand
provided correspondence between the parties prior to the
commencement of the case detailing her injury and medical
care. R. Doc. 8-1 at 2-3; R. Docs. 8-2; 8-3; 8-4; 8-5. Based
on this correspondence, she claims that Defendants were aware
of her cervical fusion surgery as of August 8, 2016, and
should have been aware that damages in a cervical fusion case
would exceed $75, 000. Id. at 5. Plaintiff cites
Fifth Circuit precedent holding that settlement letters are
considered “other paper” for the purposes of the
commencement of time for removal, thus rendering
Defendants' Notice of Removal untimely. Id. at
oppose the motion to remand and contend that the provisions
of 28 U.S.C. § 1332 and 1441 are satisfied. R. Doc. 9 at
on 28 U.S.C. 1446(b)(3), Defendants argue that because
Plaintiff's state court petition did not affirmatively
reveal on its face that the damages sought were in excess of
$75, 000, it was not removable at that time. Id. at
3 (citing Chapman v. Powermatic, Inc., 969 F.2d 160,
163 (5th Cir. 1992)). Accordingly, Defendants maintain this
Court must evaluate whether it became removable at a later
time. Id. Relying on precedent from this Court,
Defendants argue that none of Plaintiff's communications
regarding her injuries prior to filing the state court action
were legally sufficient to start the clock. R. Doc. 9 at 3-4.
maintain that the Notice of Removal was filed within thirty
days of their receipt of “other paper” and thus
timely under 28 U.S.C. § 1446(b)(3). R. Doc. 9 at 5.
Defendants agree with Plaintiffs that a settlement demand may
be considered “other paper, ” but note that they
never received a settlement demand, and that settlement
demands must be received after the initial demand to
constitute “other paper.” R. Doc. 9 at 6.
Defendants rely on Plaintiffs' medical records obtained
on November 1, 2016, as the first receipt of “other
paper” indicating that damages would be greater than
$75, 000. R. Doc. 9 at 6. Using this date, Defendants contend
that their November 9, 2016, Notice of Removal was within the
thirty-day removal deadline. R. Doc. 9 at 6.