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Lebrun v. CBS Broadcasting, Inc., Inc

United States District Court, E.D. Louisiana

October 23, 2018


         SECTION I

          ORDER & REASONS


         Before the Court is plaintiff Justin T. LeBrun's (“LeBrun”) motion[1] 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”).[2]LeBrun asserts that defendants' removal was untimely. For the following reasons, LeBrun's motion is granted.


         This 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.[3] LeBrun was cast as an “armed robber” who would rob a jewelry store.[4]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.[5]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.[6]

         LeBrun filed this lawsuit in the 34th Judicial District Court of St. Bernard Parish in February 2018.[7] LeBrun served CBS with the initial petition on March 22, 2018, [8] and served Danni Productions with the first amending and supplemental petition on June 14, 2018.[9] 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.”[10] That same day, LeBrun presented CBS with a settlement demand exceeding $75, 000.[11]

         Defendants 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.[12]

         Defendants 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 Goehring.”[13]


         “The 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).

         The 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.

         28 U.S.C. § 1446(b)(1).

         “When 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)).

         The 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.[14] 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.[15]

         Defendants, 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.”[16] 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.”[17] 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).[18] Therefore, they argue, the August 15, 2018 removal was timely.[19]


         First, 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.[20]

         Generally, 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).

         The 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.

         When 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 court.”)).

         In 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.

         Thus, 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 ...

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