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Guy v. Mercer Transportation Co., Inc.

United States District Court, M.D. Louisiana

January 12, 2018

TIMOTHY GUY
v.
MERCER TRANSPORTATION CO., INC. ET AL.

          NOTICE AND ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         This is a civil action involving claims for damages based upon the injuries allegedly sustained by Timothy Guy (“Plaintiff”), as a result of a motor vehicle accident that occurred on or about November 19, 2016.[1] On or about November 13, 2017, Plaintiff filed a Petition for Damages against Mercer Transportation Co., Inc. (“Mercer”), Ace American Insurance Company (“Ace”) and Jerry Fitzgerald (collectively, “Defendants”) in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana.[2] Defendants removed the matter to this Court on January 8, 2018, on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a).[3]

         The Notice of Removal contains the following allegations regarding the citizenship of the parties:

2.
The plaintiff is, upon information and belief, a person of the full age of majority, domiciled in the Parish of East Baton Rouge, State of Louisiana.
3.
Made defendants are Mercer Transportation Co., Inc. (“Mercer”), a foreign corporation with its principal place of business in Louisville, Kentucky; Ace American Insurance Company (“Ace”), a foreign insurer, and Jerry Fitzgerald (“Fitzgerald”), an individual of the full age of majority, domiciled in Monroe County, Mississippi.[4]

         Proper information regarding the citizenship of all parties is necessary to establish the Court's diversity jurisdiction, as well as to make the determination required under 28 U.S.C. § 1441 regarding whether the case was properly removed to this Court. Citizenship has not been adequately alleged in the Notice of Removal. While the citizenship of the plaintiff, Timothy Guy, and defendant Jerry Fitzgerald has been properly alleged, [5] the citizenship of Mercer and Ace has not been adequately alleged in the Notice of Removal. With respect to Mercer, which Defendants allege is “a foreign corporation with its principal place of business in Louisville, Kentucky, ”[6] the Fifth Circuit has held that, “For diversity jurisdiction purposes, a corporation is a citizen of the state in which it was incorporated and the state in which it has its principal place of business.” Getty Oil, Div. of Texaco v. Ins. Co. of North America, 841 F.2d 1254, 1259 (5th Cir. 1988) (citing 28 U.S.C. § 1332(c)). Thus, to properly allege the citizenship of a corporation, a party must identify the place of incorporation and the corporation's principal place of business in accordance with the requirements of 28 U.S.C. § 1332(c).

         With respect to Ace, the Notice of Removal fails to specify what form of entity it is, alleging only that it is “a foreign insurer.”[7] If Ace is a corporation, Defendants must allege the place of incorporation and principal place of business. See, 28 U.S.C. § 1332(c). If, however, Ace is an unincorporated association or a limited liability company, Defendants must allege the domicile of each member of the entity. See, Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). The Fifth Circuit has held that the citizenship of an unincorporated association or a limited liability company is determined by considering the citizenship of all its members. Id. Thus, to properly allege the citizenship of an unincorporated association or a limited liability company, a party must identify each of the members of the unincorporated association or limited liability company and the citizenship of each member in accordance with the requirements of 28 U.S.C. § 1332(a) and (c). The same requirement applies to any member which is also an unincorporated association or a limited liability company. See, Turner Bros. Crane and Rigging, LLC v. Kingboard Chemical Holding Ltd., Civ. A. No. 06-88-A, 2007 WL 2848154, at *4 (M.D. La. Sept. 24, 2007) (“when partners or members are themselves entities or associations, the citizenship must be traced through however many layers of members or partners there may be, and failure to do [so] can result in dismissal for want of jurisdiction.”) (citations omitted).

         With respect to the amount in controversy, the Notice of Removal contains the following allegations:

6.
Counsel for the plaintiff has provided undersigned counsel with medical records and medical billing records reflecting total medical expenses to-date of $31, 696.00. His diagnoses include a herniated at disc [sic] ¶ 3-4, a mild neurocognitive disorder, post-traumatic stress disorder and somatic symptom disorder, insomnia and degenerative joint disease at his left AC joint. Plaintiff's treatment thus far includes two cervical epidural steroid injections; a steroid injection and a trigger point injection at his left shoulder; physical therapy and chiropractic care; clinical psychologist counseling; a neuropsychology exam; and numerous diagnostic imaging. The plaintiff continues to treat with a neurosurgeon and anesthesiologist.
These medical and billing records, together with any future medical expenses, lost wages and general damages, are sufficient evidence that the amount in controversy could exceed the jurisdictional threshold. Lopez v. Wal-Mart Louisiana, LLC, 2015 WL 3473015, p. 2 (W.D. La. 6/1/15); Lee v. Dillon, 2012 WL 3263882 (W.D. La. Shreveport Div., 8/8/12), citing Boyd v. Kmart Corporation, 1998 WL 151432 (E.D. La. 3/25/98).

         It is 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 alleges that as a result of the accident, he suffered “various severe and permanently disabling injuries” and seeks damages for her injuries including, but not limited to, past, present and future physical pain and suffering; past, present and future mental anguish and/or emotional distress; past, present and future disability and/or impairment; past, present and future lost wages and/or loss of earning capacity; past, present and future loss of enjoyment of life; and past, present and future medical expenses.[8] While Plaintiff seeks several items of damages, there is no indication of the nature or severity of his 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 ...


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