United States District Court, E.D. Louisiana
JUSTIN T. LEBRUN
CBS BROADCASTING, INC. ET AL.
ORDER & REASONS
M. AFRICK UNITED STATES DISTRICT JUDGE
the Court is plaintiff Justin T. LeBrun's
(“LeBrun”) motion to remand his lawsuit to the 34th
Judicial District Court of St. Bernard Parish. This case was
removed to this Court based on diversity jurisdiction by
defendants CBS Corporation, improperly referred to in
LeBrun's petition as CBS Broadcasting, Inc.,
(“CBS”) and Danni Productions, LLC (“Danni
Productions”) (collectively, the
“defendants”).LeBrun asserts that defendants'
removal was untimely. For the following reasons, LeBrun's
motion is granted.
lawsuit arises from a staged armed robbery. LeBrun was
employed by defendants on or about October 18, 2017 as a paid
actor on the set of NCIS: New Orleans. LeBrun was cast
as an “armed robber” who would rob a jewelry
store.LeBrun alleges that defendants were
negligent in not informing police of the staged armed robbery
because LeBrun was eventually confronted by New Orleans
police officers with guns drawn, believing that an actual
armed robbery was taking place.LeBrun alleges that this apparent
lack of communication caused his damages, including mental
pain and anguish, physical pain and suffering, loss of
enjoyment of life, and medical expenses.
filed this lawsuit in the 34th Judicial District Court of St.
Bernard Parish in February 2018. LeBrun served CBS with the
initial petition on March 22, 2018,  and served Danni Productions
with the first amending and supplemental petition on June 14,
2018. Before Danni Productions was served with
the amended state court petition, counsel for CBS deposed
LeBrun on June 11, 2018, wherein LeBrun asserts that his
“alleged harms and losses were discussed in
detail.” That same day, LeBrun presented CBS with
a settlement demand exceeding $75, 000.
state that on July 30, 2018, they received a response to a
subpoena duces tecum, which included a letter from
LeBrun's doctor, Dr. Dilks, to LeBrun's former
counsel, Jacob Goehring, describing LeBrun's condition
and treatment recommendations.
filed their notice of removal on August 15, 2018, asserting
that LeBrun's claim likely exceeds $75, 000 “based
on the allegations in [LeBrun's] petition, his continuing
treatment, and the letter from Dr. Dilks to Jacob
district courts shall have original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interests and costs, and is
between citizens of different states . . . .” 28 U.S.C.
§ 1332(a)(1). Under 28 U.S.C. § 1441(a), “any
civil action brought in a State court of which the district
courts of the United States have original jurisdiction, may
be removed by the defendant or the defendants, to the
district court of the United States for the district and
division embracing the place where such action is pending,
” unless Congress provides otherwise. Jurisdictional
facts supporting removal are assessed at the time of removal.
Louisiana v. Am. Nat'l Prop. Cas. Co., 746 F.3d
633, 636-37 (5th Cir. 2014).
defendant or defendants must file a notice of removal
pursuant to 28 U.S.C. § 1446. Generally, [t]he notice of
a removal of a civil action or proceeding shall be filed
within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which such action or
proceeding is based, or within 30 days after the service of
summons upon the defendant if such initial pleading has then
been filed in court and is not required to be served on the
defendant, whichever period is shorter.
U.S.C. § 1446(b)(1).
considering a motion to remand, the removing party bears the
burden of showing that removal was proper.” Benson
v. Family Health Center Inc., 339 Fed.Appx. 486, 487
(5th Cir. 2009) (per curiam) (considering whether defendant
timely filed its notice of removal); see also Yu-Wen Chiu
v. Lincoln, No. 18-6308, 2018 WL 4205423, at *3 (E.D.
La. Sept. 4, 2018) (Lemelle, J.) (“Defendant has not
carried his burden of demonstrating that removal is
timely.”). “Any ambiguities are construed against
removal because the removal statute should be strictly
construed in favor of remand.” Manguno, 276
F.3d at 723 (citing Acuna v. Brown & Root, Inc.,
200 F.3d 335, 339 (5th Cir. 2000)).
parties disagree about when the thirty-day removal period
began to run. Specifically, the parties dispute when the
defendants could ascertain that the amount in controversy
exceeded $75, 000. Since the later-served party, Danni
Productions, was served on June 14, 2018, and defendants did
not remove the lawsuit until August 15, 2018, LeBrun argues
that removal was untimely because the lawsuit was removed
over thirty days after service of the state court petition on
Danni Productions. Alternatively, LeBrun argues that
defendants should have known that the case was removable
after the June 11, 2018 deposition because the parties
discussed LeBrun's alleged injuries “in
detail” and LeBrun provided CBS with a settlement
demand in excess of $75, 000.
on the other hand, assert that the case was not removable
based on the state court petition because the petition
neither states a monetary amount nor “indicate[s] that
the case value may be over the jurisdictional
amount.” Defendants further argue that the case
was not removable after the June 11, 2018 deposition because
“plaintiff limit[ed] his physical injuries to stomach
pains and headaches. He also admit[ted] to prior psychiatric
treatment.” Rather, defendants assert that the case
did not become removable until July 30, 2018 when defendants
received Dr. Dilks's letter in response to their subpoena
duces tecum, which constitutes an “other paper”
under 28 U.S.C. § 1446(b)(3). Therefore, they argue,
the August 15, 2018 removal was timely.
LeBrun asserts that “the defendants' removal in
this matter is, by its face, untimely, ” because the
notice of removal was filed over thirty days after service of
the state court petitions on both defendants.
the court looks to the state court petition to determine the
amount in controversy. Manguno, 276 F.3d at 723
(citing St. Paul Reinsurance Co., Ltd. v. Greenberg,
134 F.3d 1250, 1253 (5th Cir. 1998)). Louisiana law, however,
prohibits plaintiffs from including a monetary amount in the
state court petition. La. Code Civ. P. art. 893(A)(1).
issue before the Court is not an “amount dispute”
in which a “defendant removed a case within thirty days
of receiving initial pleadings-before the amount in
controversy was clearly established-and the plaintiff moved
to remand, objecting that the amount in controversy had not
been met.” Mumfrey v. CVS Pharmacy, Inc., 719
F.3d 392, 398 (5th Cir. 2013). Rather, before the Court is a
“timeliness dispute” in which “the
plaintiff tries to avoid removal by arguing that it was clear
from the initial pleadings that the case was removable such
that the defendant has missed the deadline and is forever
barred from removing.” Id.
the issue is the timeliness of the removal, the inquiry is
whether “the initial pleading ‘affirmatively
reveals on its face' that the plaintiff sought damages
exceeding the jurisdictional amount.” Id. at
400 (quoting and affirming Chapman, 969 F.2d at 163
(“[T]he thirty day time period in which a defendant
must remove a case starts to run from defendant's receipt
of the initial pleading only when that pleading affirmatively
reveals on its face that the plaintiff is seeking damages in
excess of the minimum jurisdictional amount in federal
adopting the above stated rule in Chapman, the Fifth
Circuit specifically rejected the plaintiff's argument
that the defendant had a duty to exercise due diligence to
determine the amount in controversy from the initial
pleading. Chapman, 969 F.2d at 163. This policy
avoids having the courts “expend needlessly their
resources trying to determine what the defendant knew at the
time it received the initial pleading and what the defendant
would have known had it exercised due diligence.”
Id. The rule also seeks to avoid premature removal
by defendants. Id.
the Fifth Circuit requires that where a plaintiff cannot
claim a jurisdictional amount in the state court petition,
the plaintiff must “place in the initial pleading a
specific allegation that damages are in excess of the
federal jurisdictional amount” if he wants the
thirty-day time period to begin to run when plaintiff ...