United States District Court, E.D. Louisiana
FRANK H. HOWELL
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
ORDER & REASONS
the Court is Plaintiff's Motion to Remand. R. Doc. 5.
Defendant State Farm Mutual Automobile Insurance Company
opposes the motion. R. Doc. 8. Having reviewed the
parties' briefs and the applicable law, the Court now
issues this Order & Reasons.
March 24, 2016, Plaintiff Frank Howell filed suit in the
Civil District Court for the Parish of Orleans seeking to
recover damages for injuries stemming from an automobile
collision in Orleans Parish, Louisiana, on March 28, 2015.
Plaintiff alleges that Defendant Chauncey Parker rear-ended
Plaintiff's vehicle when he stopped in traffic on the
Pontchartrain Expressway. R. Doc. 1-2 at 1. Plaintiff avers
that the accident was caused solely by Parker's
negligence. R. Doc. 1-2 at 2. In his Petition, Plaintiff seek
damages for unspecified injuries, including medical care and
related expenses. R. Doc. 1-2 at 2. In accordance with
Louisiana Code of Civil Procedure article 893(a), Plaintiff
did not plead a specific damage amount in his Petition.
Plaintiff also did not note whether the amount in controversy
met, or did not meet, the amount required for federal
Progressive Casualty Insurance Company
(“Progressive”) provided liability coverage for
the vehicle operated by Defendant Parker. R. Doc. 1-2 at 2.
Plaintiff contends that the Progressive liability policy
fails to cover the damages he sustained as a result of the
accident. R. Doc. 1-2 at 2. As such, Plaintiff filed a claim
against his uninsured/uninsured motorist provider, State Farm
Mutual Automobile Insurance Company (“State
Plaintiff filed suit, Progressive scheduled Plaintiff's
deposition for August 15, 2016. R. Doc. 5-1 at 1. Prior to
the deposition, Plaintiff settled with Progressive, and State
Farm was notified of the settlement. R. Doc. 5-1 at 2. On
August 12, 2016, State Farm confirmed in writing that it knew
Plaintiff had settled his claims against Progressive. R. Doc.
5-1 at 2. On September 7, 2016, Progressive filed a partial
motion and order to dismiss in Orleans Parish Civil District
Court; the order was signed September 14, 2016. R. Doc. 5-1
at 2. However, State Farm was not served with a copy of the
order dismissing Plaintiff's claims against Parker and
Progressive. R. Doc. 5-7.
November, 2016, State Farm arranged to depose Plaintiff, but
did not coordinate scheduling with Progressive. R. Doc. 5-1
at 3. The parties exchanged additional discovery in December,
2016, where Plaintiff again indicated he had settled with
Progressive, but did not disclose that Packer and Progressive
had been dismissed from the suit. R. Doc. 1 at 6. When State
Farm took Plaintiff's deposition on February 13, 2017, it
learned Parker and Progressive had been dismissed from the
suit. R. Doc. 1 at 6; R. Doc. 5-1 at 3.
this Court's diversity jurisdiction, State Farm filed a
Notice of Removal on March 10, 2017, asserting that this
action involves a controversy between citizens of different
states and the amount in controversy exceeds $75, 000. R.
Doc. 1 at 1. Plaintiff Howell is a Louisiana citizen, while
State Farm is a foreign insurance company licensed to do
business in the state. State Farm explains that this case was
not initially removable, as Plaintiff's original Petition
included claims against Chauncey Parker, a Louisiana citizen,
and Parker's insurer, Progressive. R. Doc. 8 at 1.
However, State Farm explains that the case became removable
when it received the order dismissing the claims against
Parker and Progressive on March 9, 2017; State Farm then
filed its Notice of Removal on March 10, 2017. R. Doc. 1.
April 4, 2017, Plaintiff filed the present motion to remand,
arguing that Notice of Removal is untimely under 28 U.S.C.
§ 1446(b). R. Doc. 5-1 at 1. Defendant opposes remand,
maintaining the Notice of Removal was filed within the
requisite time limit. R. Doc. 8.
Plaintiff's Motion to Remand (R. Doc. 5)
explains that in August, 2016, Defendant State Farm (herein
after “Defendant”) confirmed in writing that
Plaintiff had settled his claims with Progressive. R. Doc.
5-3. Plaintiff's counsel sent another email confirming
settlement. R. Doc. 5-4. Plaintiff explains that in November
2016, he discussed discovery issues with Defendant, and
verbally confirmed Progressive was no longer a party. R. Doc.
5-1 at 2-3. Later in November, 2016, Defendant scheduled and
noticed Plaintiff's deposition; but did not contact
Progressive. R. Doc. 55-1 at 3. According to Plaintiff, this
demonstrates that Defendant knew Progressive was no longer
involved in the case, and therefore knew the case was
removable in-at the very least- November, 2016. R. Doc. 5-1
on the foregoing, Plaintiff avers that Defendant's Notice
of Removal on March 10, 2017 was untimely, as it was filed
more than thirty days after Defendant first received written
notice that the case had become removable. According to
Plaintiff, the removal statue should be strictly construed,
with any ambiguities resolved in favor of remand. R. Doc. 5-1
at 3-4. Further, Plaintiff argues that under Fifth Circuit
precedent, written communications between counsel, such as
email correspondence, are sufficient to satisfy the
“other paper” requirement of 28 U.S.C.
§1446(b)(3). R. Doc. 5-1 at 4. Because Defendant had
written notice of the settlement between Plaintiff and
Progressive in August 2016, Plaintiff argues that the March
10, 2017 Notice of Removal was untimely, and therefore this
case must be remanded. R. Doc. 5-1 at 5.
Plaintiff argues that because there was no reasonable basis
for removal, he is entitled to attorney fees. R. Doc. 5-1 at
5 (citing Martin v. ...