United States District Court, W.D. Louisiana, Shreveport Division
RYAN T. NEELY
CHRISTOPHER ASHTON, NO.
REPORT AND RECOMMENDATION
L. Hornsby U.S. Magistrate Judge 1
Neely (“Plaintiff”) filed suit in state court for
damages caused by an auto accident. He named as defendants
the other driver, the driver's employer, and an insurer.
The three defendants removed the case to federal court based
on an assertion of diversity jurisdiction. Before the court
is Plaintiff's Motion to Remand (Doc. 7) on the grounds
that the amount in controversy does not exceed $75, 000. For
the reasons that follow, it is recommended that the motion to
remand be denied.
petition, in accordance with Louisiana law, did not set forth
a demand for a specific amount of damages. When state law is
such, a defendant's notice of removal may assert the
amount in controversy. 28 U.S.C. § 1446(c)(2)(A)(ii).
Removal is proper on the basis of an amount in controversy
asserted in the notice of removal “if the district
court finds, by the preponderance of the evidence, that the
amount in controversy exceeds” $75, 000 exclusive of
interest and costs. 28 U.S.C. §§ 1446(c)(2)(B) and
burden is on the removing party to show that removal is
proper, and any doubts should be resolved against federal
jurisdiction. Vantage Drilling Co. v. Hsin-Chi Su,
741 F.3rd 535, 537 (5th Cir. 2014). Defendants may satisfy
their burden by: (1) demonstrating that it is “facially
apparent” that the claims are likely above $75, 000, or
(2) setting forth the facts in controversy-in the notice of
removal or an affidavit-that support a finding of the
requisite amount. Luckett v. Delta Airlines, 171
F.3d 295, 298 (5th Cir. 1999); Simon v. Wal-Mart Stores,
Inc., 193 F.3d 848 (5th Cir. 1999).
in this case rely primarily on the allegations in
Plaintiff's state court petition. Plaintiff alleged in
his petition that he was driving a GMC pickup truck westbound
on Interstate 220 at approximately 11:00 p.m. At the same
time, the defendant driver was traveling eastbound on
Interstate 220 in a Kenworth tractor-trailer rig that carried
a load of large wood boards on a 48-foot trailer. Plaintiff
alleges that the other driver lost control, struck the
dividing wall of the interstate, and caused his load to fall
onto the westbound lane of traffic. This caused
Plaintiff's truck “to run into and over the large
board, ultimately becoming high centered and resulting in the
injuries and damages complained of herein. Petition,
alleges that, as a result of the collision, he
“suffered pain, mental anguish and distress, as a
result of the injuries he sustained in said collision
including, but not limited to, fracture of coccyx, lumbar
pain, right hip, lumbar thoracic and cervical strain/sprain
as well as bruising.” ¶ 10. Plaintiff alleged that
he “sustained such damages as are reasonable in the
premises, including, but not limited to past and future
medical expenses, medical report charges, lost wages, loss of
enjoyment of life, past, present and future pain and
suffering, and past, present and future mental anguish and
distress, as a result of the above described accident.”
¶ 11. He added that the value of his claim, exclusive of
interest and court costs, “exceeds $50, 000, the
jurisdictional requirement for trial by a jury” in
state court. ¶ 13.
motion to remand introduced new facts regarding the amount in
controversy. Plaintiff described a settlement offer that he
made more than three months before he filed suit.
Plaintiff's counsel wrote in that offer letter that
Plaintiff “sustained multiple injuries, including
cervical, thoracic, lumbar and hip sprain/strain as well as a
vertebral fracture in the sacrum/coccyx area of his
spine.” Plaintiff's counsel listed total medical
expenses of $4, 351.79, lost wages of $1, 250, and said that
he would recommend his client accept an offer that included
$45, 000 for general damages, for a total of $50, 601.79.
Plaintiff argued that his offer to settle for less than $75,
000 meant that the amount in controversy could not exceed
original notice of removal referred to the allegations in
Plaintiff's petition, but it did not set forth any
additional facts or information relevant to damages. After
Plaintiff filed his motion to remand, Defendants filed a
supplemental notice of removal (Doc. 11) that argued the
settlement offer was irrelevant and not dispositive of the
amount in controversy. Defendants also made arguments based
on the allegations in the petition, but they did not offer
any additional facts about the injuries or damages at issue.
Defendants did attach an affidavit from their counsel in
which he stated his opinion that the allegations in the
petition made the amount in controversy exceed $75, 000.
Counsel also cited some quantum decisions from the state
courts and offered argument about the relevance of a
are a number of points to address relevant to the amount in
controversy. First, Louisiana law does not permit a tort
plaintiff to pray for a specific amount of damages, but La.
C.C.P. art. 893(A)(1) does allow a plaintiff to allege that
his damages are in excess of the amount necessary to trigger
the right to a jury trial. That amount is $50, 000. La.