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Neely v. Ashton

United States District Court, W.D. Louisiana, Shreveport Division

May 31, 2018




          Mark L. Hornsby U.S. Magistrate Judge 1


         Ryan T. 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.

         Removing Party's Burden

         Plaintiff's 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 1332(a).

         The 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).

         Relevant Facts

         Defendants 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, ¶¶ 3-4.

         Plaintiff 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.

         Plaintiff's 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 that amount.

         Defendants' 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 settlement offer.


         There 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. ...

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