United States District Court, E.D. Louisiana
SHELBY LAUDERDALE, ET AL.
JOE CABELLERO, ET AL.
the Court is the plaintiffs' motion to remand. For the
reasons that follow, the motion is DENIED.
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
litigation arises out of an accident in which a Volvo sleeper
box truck allegedly struck a Hyundai Sonata, injuring the
Sonata's driver and three passengers.
2, 2016, Shelby Lauderdale was driving his 2005 Hyundai
Sonata westbound on Highway 90 in the center lane with
Madonna Rogers, Katrice Drawsand, and Derrick Drawsand riding
as passengers. Jose Caballero was driving a 2016 Volvo
sleeper box truck westbound on I-10 in the lane adjacent to
Lauderdale's Sonata. When Mr. Caballero tried to switch
lanes, the truck he was driving struck Lauderdale's car.
As a result of the collision, Lauderdale and each of his
passengers alleges that they suffered injuries: Lauderdale
alleges that he suffered cervical strains and aggravation of
pre-existing herniated lumbar discs; Rogers alleges that she
suffered cervical strains and a herniated lumbar disc;
Katrice Drawsand alleges that she sustained a lumber strain
and a cervical strain; and Derrick Drawsand alleges that he
suffered cervical strains, lumbar strains, and shoulder
that Mr. Caballero's negligence in operating the truck
caused these injuries to Lauderdale and his passengers,
Lauderdale, Rogers, and the Drawsands sued Caballero, along
with his employer, Atlanta Meat Company, and Westfield
Insurance Company in state court. The plaintiffs allege in the
state court petition that they are entitled to recover past,
present, and future medicine, drugs, hospitalization, medical
care, support care, lost wages, loss of wage earning
capacity, pain and suffering, residual disabilities, mental
anguish, emotional upset, and distress, and other
psychological sequelae. On April 28, 2017, Westfield Insurance
Company removed the lawsuit to this Court, invoking the
Court's diversity jurisdiction. The plaintiffs now move
the plaintiff challenges removal in this case, the removing
defendant carries the burden of showing the propriety of this
Court's removal jurisdiction. See Jernigan v. Ashland
Oil, Inc., 989 F.2d 812, 815 (5th Cir.),
cert. denied, 510 U.S. 868, 114 S.Ct. 192, 126
L.Ed.2d 150 (1993); Willy v. Coastal Corp., 855 F.2d
1160, 1164 (5th Cir. 1988). "Because removal raises
significant federalism concerns, the removal statute is
strictly construed." Gutierrez v. Flores, 543
F.3d 248, 251 (5th Cir. 2008). Further, "any doubt as to
the propriety of removal should be resolved in favor of
defendant may generally remove a civil action filed in state
court if the federal court has original jurisdiction over the
case -- that is, if the plaintiff could have brought the
action in federal court from the outset. See 28
U.S.C. § 1441(a). To exercise diversity jurisdiction,
complete diversity must exist between the plaintiffs and all
of the properly joined defendants, and the amount in
controversy must exceed $75, 000. See 28 U.S.C.
§ 1332(a)(1). The only dispute here is whether the
amount-in-controversy requirement is met.
determine whether it has jurisdiction, the Court must
consider the allegations in the state court petition as they
existed at the time of removal. See Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002)(citing Cavallini v. State Farm Mut. Auto Ins.
Co., 44 F.3d 256, 264 (5th Cir. 1995)). Louisiana law
requires that a plaintiff include "no specific amount of
damages" in her prayer for relief. La. Code Civ. Proc.
the plaintiffs have alleged an indeterminate amount of
damages, the removing party must prove by a preponderance of
the evidence that the amount in controversy exceeds $75, 000.
Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th
Cir. 1999); see also De Aguilar v. Boeing Co., 47
F.3d 1404, 1412 (5th Cir. 1995). This showing may be made by
either (1) showing that it is facially apparent that the
plaintiff's claims likely exceed $75, 000 or (2) setting
forth "summary judgment type evidence" of facts in
controversy that support a finding of the jurisdictional
amount. Manguno, 276 F.3d at 723; Luckett v. Delta
Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
"[I]f it is facially apparent from the petition that the
amount in controversy exceeds $75, 000 at the time of
removal, post-removal affidavits, stipulations, and
amendments reducing the amount do not deprive the district
court of jurisdiction." Gebbia v. Wal-Mart Stores,
Inc., 233 F.3d 880, 883 (5th Cir. 2000). If the removing
defendant cannot show that the amount in controversy is
facially apparent, it may be able to "set forth the
facts in controversy - preferably in the removal petition,
but sometimes by affidavit - that support a finding of the
requisite amount." Luckett, 171 F.3d at 298. If
the petition is ambiguous as to whether the alleged damages
surpass the jurisdictional amount in controversy, the Court
may consider a post-removal affidavit that ...