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Baker v. Illinois Central Railroad Co.

United States District Court, M.D. Louisiana

December 13, 2017



         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. §636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.




         Before the court is a Motion to Remand[1] filed by plaintiff, Brandy Baker (“Plaintiff”). The Motion to Remand is unopposed.[2] For the reasons set forth herein, the undersigned recommends that the Motion to Remand be GRANTED and this matter be REMANDED to the 21st Judicial District Court, Parish of Livingston, State of Louisiana.

         I. Background

         Plaintiff's suit arises out of a June 21, 2016 accident wherein Plaintiff was allegedly attempting to cross a railroad crossing owned by defendant, Illinois Central Railroad Company (“Defendant”) and was struck by a west-bound Illinois Central train.[3] Plaintiff alleges that the collision “caused extensive damage to her vehicle”[4] Plaintiff further contends that she is entitled to recover damages including but not limited to: (1) “[m]ental anguish, fear, worry and concern;” (2) “[l]oss of enjoyment of life;” (3) “[l]oss of future earning, income and financial capacity;” (4) “[p]hysical pain and suffering;” and (5) “[s]erious bodily injury.”[5]

         On October 31, 2017 Defendant removed this suit on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. Although the parties appear to be completely diverse, [6] on November 7, 2017, this court issued a Notice and Order explaining that it was not apparent from the face of Plaintiff's Petition that the claims were likely to exceed $75, 000.00.[7] Specifically, the court noted that although Plaintiff alleged that the accident caused “extreme damage” to her vehicle and sought to recover damages for “serious bodily injury, ” there was no allegation regarding Plaintiff's specific injuries, nor any information regarding claimed medical expenses.[8] Defendant provided no additional information regarding the amount in controversy in the Notice of Removal. Based on the allegations set forth in the Petition, as well as the information asserted in the Notice of Removal, the court sua sponte raised the issue of whether the amount in controversy requirement of 28 U.S.C. § 1332 was met, and ordered the parties submit additional briefing.[9]

         On November 11, 2017, Plaintiff filed the instant Motion to Remand.[10] Attached to the Motion to Remand is a “Stipulation” signed by Plaintiff's counsel asserting that Plaintiff stipulates “that the current amount in controversy is $75, 000.00 or less, exclusive of interest and costs.”[11] In her Memorandum in Support of the Motion to Remand, Plaintiff asserts “[s]ince her initial treatment, [her] symptoms have diminished” and her “medical specials are believed to be less than $5, 000.00.”[12] Plaintiff also states that she “suffered lost income as a result of the collision for several weeks.”[13]

         Defendant did not file an opposition to the Motion to Remand. However, Defendant did file a Memorandum Concerning Subject Matter Jurisdiction pursuant to the Court's November 7, 2017 Notice and Order.[14] Therein, Defendant reiterates Plaintiff's contentions that medical specials are believed to be less than $5, 000, and Plaintiff's lost income only spanned a matter of weeks.[15] Defendant asserts that while at the time of removal, “complete diversity of citizenship was unquestionable, the requisite amount in controversy…was less clear”[16] and “[u]sing Luckett[17]and Simon[18] as amount-in-controversy guideposts…based on what is currently known, the petitional [sic] allegations in this action…fall closer to those in Simon.”[19] Finally, Defendant asserts that it “does not have a good-faith basis from which to challenge plaintiff's representations that her potential damage claim does not exceed $75, 000, exclusive of interest and costs….”[20]

         II. Law and Analysis

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1332(a), when original jurisdiction is based on diversity of citizenship, the cause of action must be between “citizens of different States” and the amount in controversy must exceed “the sum or value of $75, 000, exclusive of interest and costs.” 28 U.S.C. § 1332(a)-(a)(1). Subject matter jurisdiction must exist at the time of removal to federal court, based on the facts and allegations contained in the complaint. St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (“jurisdictional facts must be judged as of the time the complaint is filed”). In removed actions, diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court. Coury v. Prot, 85 F.3d 244, 248-289 (5th Cir. 1996) (citation omitted). Remand is proper if at any time the court lacks subject matter jurisdiction. See, 28 U.S.C. § 1447(c). The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand. Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).

         If removal is sought on the basis of diversity jurisdiction, then “the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy.” 28 U.S.C. § 1446(c)(2). If, however, the “State practice ... does not permit demand for a specific sum ... [removal] is proper if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds [$75, 000].” 28 U.S.C. § 1446(c)(2)(A)(ii)-(B). “In order to remain in federal court, the removing parties must prove by a preponderance of the evidence that the jurisdictional minimum exists.” Morton v. State Farm Ins. Co., Civl Action No. 08-208, 250 F.R.D. 273, 274 (E.D. La. 2008) (citing Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999)). The removing party may make this showing either: “(1) by demonstrating that it is ‘facially apparent' that the claims are likely above $75, 000, or (2) ‘by setting ...

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