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Palmer v. H&E Equipment Services, L.L.C.

United States District Court, M.D. Louisiana

September 26, 2018




         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.



         Before the Court is “Plaintiff's Memorandum Regarding Show Cause Order, ” filed by plaintiff Derrick Palmer (“Plaintiff”). The pleading also presents argument and authority in support of remanding this case, and therefore the Court will consider it as a Motion to Remand (hereinafter, the “Motion”).[1] Removing Defendant Amherst Madison, Inc. (“Amherst”) does not oppose remand.[2] For the following reasons, the undersigned recommends[3] that the Motion be GRANTED and that this matter be REMANDED to the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, for lack of subject matter jurisdiction under 28 U.S.C. § 1332(a) and 28 U.S.C. § 1333.

         Factual and Procedural Background

         On or about June 6, 2018, Plaintiff filed an Original Petition for Damages (“Petition”) in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, seeking damages for the injuries he sustained on November 7, 2017 while welding on a barge owned by Defendant Amherst, as an alleged Jones Act seaman and employee of Defendant H&E (collectively, “Defendants”).[4] Plaintiff alleges he suffered burns to his face, inner ear, and nostrils after the weld job “flared” in a confined space due to Defendants' failure to set up the proper equipment.[5] Plaintiff seeks to recover the following damages: “past and future pain, suffering and mental anguish; past and future physical impairment; past and future physical disfigurement; past lost wages and future loss of earning capacity.”[6] The Petition also contains a demand for a jury trial[7] and the prayer for relief seeks judgment against Defendants “in a total sum in excess of the minimum jurisdictional limits” of the state court.[8]

         On July 13, 2018, Amherst removed the matter to this Court explicitly asserting that this Court has diversity jurisdiction under 28 U.S.C. § 1332.[9] Amherst alleged that diversity existed between Plaintiff, a Louisiana citizen, and Amherst, an Indiana corporation with its primary place of business in West Virginia.[10] Amherst asserted that Defendant H&E, Plaintiff's employer, is tort immune from Plaintiff's claims for personal injuries received while working on a vessel because those claims are exclusively governed by the Longshore Harbor Worker's Compensation Act (“LHWCA”), 33 U.S.C. 3901 et seq. Thus, Amherst argued that H&E was fraudulently joined to destroy diversity.[11] Amherst also asserted that, contrary to Plaintiff's Petition, any claims against Amherst are based on general maritime law and not the Jones Act.[12]

         After reviewing the Notice of Removal and the information contained in the record, the undersigned could not determine whether the requisite amount in controversy was met in this case. As such, the undersigned issued a Notice and Order on August 9, 2018, raising the issue of subject matter jurisdiction sua sponte and requiring the parties to submit memoranda focused on the issue of whether the requisite amount in controversy was met.[13] On August 20, 2018, Amherst filed its Memorandum Regarding Subject Matter Jurisdiction (“Original Memorandum”).[14] Therein, Amherst alleged that the Court had jurisdiction based on both diversity and admiralty.

         In support of its burden to show that the amount in controversy requirement is met, Amherst claimed that, on the date of the accident, Plaintiff was welding aboard a crane barge owned by Amherst that was floating in the Ohio River and tied to Amherst's dock. Plaintiff's alleged negligence caused a flash fire during his welding operations that caused Plaintiff to sustain first and second degree burns to his face, inner ear, and nostrils.[15] Amherst averred that it knew little about Plaintiff's medical condition because it is not his employer and no discovery has been conducted, but claimed that, on information and belief, Plaintiff was not working and was continuing to receive medical treatment, including evaluation for plastic surgery. Amherst further alleged that Plaintiff had not been working for nine months and had estimated back wages of $40, 000, without considering overtime. Amherst contended that the general and special damages set forth in Plaintiff's Petition (i.e., past and future medical expenses, past and future pain, suffering and mental anguish, past and future physical impairment, and past and future lost wages, etc.) “typically” exceeds the jurisdictional amount. Amherst also claimed that Plaintiff would agree that his damages exceed $75, 000 and would not stipulate to a legal certainty that his damages do not exceed that amount.[16]

         Next, Amherst contended that this Court has admiralty jurisdiction over this matter under 28 U.S.C. § 1333 because, under applicable case law and as supported by an unsworn declaration under penalty of perjury, the required situs and nexus requirements are met.[17] Specifically, Plaintiff was injured while performing work repairing a crane aboard a barge that was floating in the Ohio River, and repairing a vessel on navigable waters is a traditional maritime activity.[18]

         On September 17, 2018, Plaintiff filed his Memorandum Regarding Order to Show Cause, wherein he asserted the grounds supporting the Motion currently at issue.[19] Plaintiff contends that the Court lacks diversity jurisdiction because the amount in controversy requirement is not met.[20] In support of this contention, Plaintiff filed a Stipulation, wherein he stipulates that he will not seek, demand, or accept more than $75, 000 in this case.[21] Plaintiff also contends that complete diversity does not exist, since H&E, his Jones Act employer, is a resident of Louisiana.[22] Plaintiff also contends that, even though Amherst correctly states Plaintiff was engaged in a traditional maritime activity, it is “well-established” that general maritime claims under the Savings to Suitors Clause and claims under the Jones Act are not removable.[23] Relying on a number of U.S. Supreme Court, Fifth Circuit, and District Court cases supporting the foregoing arguments, Plaintiff asserts that this Court lacks admiralty jurisdiction as well.[24]

         In light of the remand arguments raised in Plaintiff's Motion, on September 18, 2018, this Court ordered Amherst to file either a notice consenting to remand or a supplemental brief addressing Plaintiff's arguments.[25] Accordingly, on September 19, 2018, Amherst filed its Supplemental Memorandum Regarding Subject Matter Jurisdiction (“Supplemental Memorandum”), wherein Amherst concedes that Plaintiff's Stipulation establishes that the amount in controversy requirement is not met, and further, consents to the entry of an order by this Court remanding this matter.[26]

         Applicable Law and Analysis

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1332(a), when original jurisdiction is based on diversity of citizenship, the cause of action must be between “citizens of different States” and the amount in controversy must exceed “the sum or value of $75, 000, exclusive of interest and costs.” 28 U.S.C. § 1332(a)-(a)(1). “Importantly, the jurisdictional facts must be judged as of the time the complaint is filed; subsequent events cannot serve to deprive the court of jurisdiction once it has attached.” St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253-54 (5th Cir. 1998). Remand is proper if at any time the court lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c). The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand. Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).

         If removal is sought on the basis of diversity jurisdiction, then “the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy.” 28 U.S.C. § 1446(c)(2). If, however, the “State practice . . . does not permit demand for a specific sum . . . [removal] is proper if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds [$75, 000].” 28 U.S.C. § 1446(c)(2)(A)(ii)-(B). “In order to remain in federal court, the removing parties must prove by a preponderance of the evidence that the jurisdictional minimum exists.” Morton v. State Farm Ins. Co., No. 08-208, 250 F.R.D. 273, 274, 2008 WL 544378, (E.D. La. Feb. 21, 2008) (citing Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999)). The removing party may make this showing in either of two ways: “(1) by demonstrating that it is ‘facially apparent' that the claims are likely above $75, 000, or (2) ‘by setting 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 (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)). If the removing defendant can produce evidence sufficient to show by a preponderance that the ...

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