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Howell v. State Farm Mutual Automobile Insurance Co.

United States District Court, E.D. Louisiana

April 27, 2017

FRANK H. HOWELL
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

         SECTION "L" (2)

          ORDER & REASONS

         Before 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.

         I. BACKGROUND

         On 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 diversity jurisdiction.

         Defendant 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 Farm”).

         After 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.

         In 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.

         Invoking 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.

         II. PRESENT MOTION

         On 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.

         A. Plaintiff's Motion to Remand (R. Doc. 5)

         Plaintiff 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 at 4.

         Based 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.

         Additionally, 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. ...


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