United States District Court, M.D. Louisiana
NOTICE AND ORDER
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE
a civil action involving claims for damages based upon the
injuries allegedly sustained by Jimmy Egu
(“Plaintiff”) as a result of a motor vehicle
accident that allegedly occurred on or about October 15,
2016. On or about October 10, 2017, Plaintiff
filed a Petition for Damages against Bruce Garrett and State
Farm Insurance Company (“State Farm”) in the
Nineteenth Judicial District Court for the Parish of East
Baton Rouge, State of Louisiana. The matter was removed to
this Court by State Farm on December 28, 2017, on the basis
of diversity jurisdiction under 28 U.S.C. §
Notice of Removal alleges that this case meets the amount in
controversy necessary for the Court to exercise federal
subject matter jurisdiction based on the following:
1. State Farm has been sued in a proceeding brought by
plaintiff, JIMMY EGU (“Plaintiff”), that is
pending in the 19th Judicial District Court for the Parish of
East Baton Rouge, State of Louisiana (Docket No. 662297;
Section 26) arising from an automobile accident that
purportedly occurred on or about October 15, 2016. A copy of
the Plaintiff's “Petition for Damages”
(“Petition”) is attached herewith as
“Exhibit No. 1.” The Petition asserts that the
accident occurred at the intersection of Nicholson Drive (La.
Highway 30) and East Boulevard, where a vehicle operated by
Bruce Garrett struck the Plaintiff's vehicle while he was
attempting to make a left turn. The Petition further asserts
that the Plaintiff “sustained injuries which have
caused him to suffer physical pain and suffering, mental pain
and anguish, loss of earning capacity, loss of earning, past
and future, and which has incurred [sic] him to incur medical
expenses, present, past and future” in connection with
the accident that is the subject matter of the litigation.
The Petition is silent as to the particular type or
significance of the injuries/damages allegedly suffered by
the Plaintiff as the result of the accident and the Plaintiff
does not specifically allege whether the amount in
controversy does or does not exceed $75, 000, as required by
La. C.C.P. Art. 893.
. . . .
3 On, or about, December 18, 2017, counsel for State Farm
received responses to discovery from the Plaintiff dated
December 14, 2017 (a partial copy of which is attached as
“Exhibit No. 3”). In those responses, the
Plaintiff asserts that his damages exceed $50, 000.00 and
further provides a copy of reports from Dr. Kenneth Vogel (a
Metairie-based neurosurgeon) opining that the Plaintiff was a
surgical candidate as a result of the lumbosacral complaints
allegedly arising from the subject accident.
. . . .
7. Because of the Plaintiff's claims as reflected in the
Petition and “other papers” attached hereto, it
is readily apparent that this court has original jurisdiction
over this action under 28 U.S.C. § 1332 in that it is a
civil action wherein the amount in controversy exceeds
Seventy-Five Thousand and No/100 ($75, 000.00) Dollars,
exclusive of interests and costs, as alleged by
Plaintiff's petition, cited above, and the suit is
between citizens of different states and is therefore
removable pursuant to 28 U.S.C. § 1441, et
not apparent from the face of the Petition for Damages or the
Notice of Removal that Plaintiff's claims in this matter
are likely to exceed $75, 000. In the Petition, Plaintiff
seeks damages for physical pain and suffering, mental pain
and anguish, loss of earning capacity, loss of past and
future wages, and past and future medical
expenses. Although the Petition asserts that
Plaintiff suffered “personal injuries” as a
result of the accident, there is no indication of the nature
of severity of Plaintiff's injuries. “Courts have
routinely held that pleading general categories of damages,
such as ‘pain and suffering, disability, lost wages,
loss of earning capacity, medical expenses, etc., '
without any indication of the amount of the damages sought,
does not provide sufficient information for the removing
defendant to meet his burden of proving that the amount in
controversy is satisfied under the ‘facially
apparent' test.” Davis v. JK & T Wings,
Inc., Civ. A. No. 11-501-BAJ-DLD, 2012 WL 278728, at *3
(M.D. La. Jan. 6, 2012); See, Alderdice v. Lowe's
Home Centers, Inc., Civ. A. No. 09-406-C, 2010 WL 371027
(M.D. La. Jan. 29, 2010); Nelson v. Wal-Mart Stores,
Inc., Civ. A. No. 09-0302, 2009 WL 1098905 (W.D. La.
April 22, 2009) (and cases cited therein); Fontenot v.
Granite State Ins. Co., Civ. A. No. 08-CV-1296, 2008 WL
4822283 (W.D. La. Nov. 3, 2008); Bonck v. Marriot Hotels,
Inc., Civ. A. No. 02-2740, 2002 WL 31890932 (E.D. La.
Dec. 30, 2002). Thus, it is not facially apparent from the
Petition that the amount in controversy is satisfied in this
Farm further asserts that the amount in controversy is met in
this case because Plaintiff stated during discovery that his
damages exceed $50, 000 and because a Dr. K.E. Vogel found
that Plaintiff has a herniated disc and that Plaintiff
“is a surgical candidate pending his test
results.” However, it is not readily apparent that
this Court has subject matter jurisdiction over
Plaintiff's claims under 28 U.S.C. § 1332.
“Where the plaintiff has received a surgical
recommendation, federal courts generally find there to be
sufficient damages to support diversity jurisdiction; where
there has been no surgery recommendation, federal courts
generally find there to be insufficient damages to support
diversity jurisdiction.” Espadron v. State Farm
Mut. Auto.Ins. Co., Civ A. No. 10-0053, 2010 WL 3168417,
at *3 (E.D. La. Aug. 9, 2010); Compare, for example,
Embry v. Southern County Mutual Ins. Co., Civ. A. No.
99-3677, 2000 WL 135920 (E.D. La. Feb. 4, 2000) (granting
remand) with Fradella v. Wal-Mart Stores, Inc., Civ.
A. No. 04-1230, 2004 WL 2297474 (E.D. La. Oct. 13, 2004)
(denying remand); see also Fradella, 2004 WL 229747
at *2 (“Plaintiff's cases [in support of remand]
are distinguishable from Defendant's cases [challenging
remand] in one telling respect: in [plaintiff's cases],
the plaintiffs did not undergo surgical treatment.”).
In the instant case, State Farm has not alleged facts or
submitted any evidence to show that Plaintiff's
physicians have recommended that he undergo surgery for his
this Court has previously held that, “[w]hether or not
a herniated disc satisfies the amount in controversy often
turns on whether surgery is recommended.” Thomas v.
Louis Dreyfus Commodities, LLC, Civ. A. No.
15-394-SDD-RLB, 2016 WL 1317937, at *4 (M.D. La. Mar. 11,
2016), report and recommendation adopted, 2016 WL
1337655 (M.D. La. Apr. 1, 2016) (internal quotation omitted).
“[C]ourts have found the lack of a recommendation for
surgery to be significant in determining whether a plaintiff
seeking damages including those for a herniated disc meets
the amount in controversy requirement when balanced with
other factors in the record.” Id.; See,
e.g Hebert v. Hanco Nat. Ins. Co., Civ. A. No. 07-362,
2009 WL 255948, at *4-5 (M.D. La. Feb. 3, 2009) (amount in
controversy not satisfied where plaintiff “suffers from
a herniated disc, without any recommendation for
surgery” and the plaintiff “continues to work,
continues to engage in activities of daily living, and does
not seek damages for mental anguish”); Espadron v.
State Farm Mut. Auto. Ins. Co., Civ. A. No. 10-53, 2010
WL 3168417 (E.D. La. Aug. 9, 2010) (amount in controversy not
satisfied where plaintiff in car crash suffered a
“herniated cervical disc [or] segmental cervical
instability” and a “herniated lumbar disc [or]
segmental lumbosacral instability” and was a
“potential surgical candidate” and plaintiff
stipulated that his damages did not exceed $50, 000).
Plaintiff has not filed a Motion to Remand, the Court sua
sponte raises the issue of whether it may exercise
diversity jurisdiction in this matter, specifically, whether
the amount in controversy requirement has been met. See,
McDonal v. Abbott Laboratories, 408 F.3d 177, 182 n. 5
(5th Cir. 2005) (“[A]ny federal court may raise subject
matter jurisdiction sua sponte.”).
IT IS HEREBY ORDERED that State Farm shall
file a memorandum and supporting evidence concerning subject
matter jurisdiction under 28 U.S.C. § 1332(a) within ten
(10) days of the date of this Notice and Order, and the
Plaintiff shall either file a memorandum and supporting
evidence regarding subject matter jurisdiction or a Motion to
Remand for lack of subject matter jurisdiction within ten
(10) days after the filing of State Farm's memorandum.
The supplemental memorandum shall be limited to ten (10)
pages and shall specifically address whether the amount in
controversy is satisfied in this case. Once the ...