United States District Court, E.D. Louisiana
ORDER AND REASONS
filed a motion to remand for lack of subject matter
jurisdiction, alleging lack of diversity jurisdiction. Rec.
Doc. 15. Cox Communications Louisiana, LLC timely filed a
response in opposition. Rec. Doc. 17. Plaintiffs then sought,
and were granted, leave to file a reply. Rec. Doc. 29. For
the reasons discussed below, IT IS ORDERED
that the motion to remand is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
filed a complaint against defendants Cox Communications of
Louisiana, LLC, Cox Communications, Inc., National General
Insurance Company, and John Doe in Louisiana state court
after a vehicle accident. Rec. Doc. 1-2. Plaintiff alleges
that a Cox Communications of Louisiana, LLC and/or Cox
Communications, Inc truck rear-ended her vehicle causing
damages and injuries, and driver, John Doe, fled the scene of
the accident. Id. at 1. Plaintiff is domiciled in
Louisiana and alleges that John Doe, who driving the vehicle,
is also domiciled in Louisiana and was on a mission for Cox
Communications of Louisiana, LLC and/or Cox Communications,
Inc. Id. at 3. Defendants filed a notice of removal
to federal court and an answer denying plaintiff's
claims. Rec. Docs. 1, 3. Defendants removed on the basis of
diversity jurisdiction, asserting that they are all domiciled
in foreign states and that the domicile of John Doe is not
relevant. Rec. Doc. 1 at 1. Defendants further assert that
the amount in controversy exceeds $75, 000. Id. at
2. Defendants assert in a separate motion that they were not
John Doe's employer and that he was not acting in the
course and scope of any employment for them during the
accident. Id. at 2.
filed the instant motion to remand the matter back to state
court, claiming incomplete diversity between the parties on
the basis of John Doe's citizenship, and asserting that
the amount in controversy is below $75, 000 as stated in her
recently submitted stipulation. Rec. Doc. 15. Defendant filed
a response in opposition disputing the amount in controversy
and asserting that diversity of citizenship exists between
the parties because the citizenship of John Doe should not be
considered. Rec. Doc. 17.
argues that there is not complete diversity between parties
because John Doe, the driver, is alleged in her complaint to
be domiciled in Louisiana. Rec. Doc. 15. Plaintiff argues
that the fictitious defendant is identifiable because she
specifically describes the individual as an African-American
male driving a Cox Cable vehicle and wearing a Cox shirt.
Rec. Doc. 15-1 at 5. Plaintiff asserts that she had time to
interact with the identifiable John Doe, and therefore the
court should consider his citizenship in determining
diversity. Id. Furthermore, plaintiff asserts that
the burden rests on defendants to prove that the driver was a
citizen of another state, if that is the case. Id.
at 7. As noted earlier, plaintiff provided a stipulation that
her claim does not exceed $50, 000. See Rec. Doc. 15-7 at 1.
assert that diversity jurisdiction existed at the time of
removal and continues to exist. Rec. Doc. 17. Defendants
assert in their notice of removal that they are domiciled in
foreign states, and argue in their response that the
fictitious defendant John Doe does not defeat diversity
jurisdiction. Rec. Docs. 1, 17. Defendants state that the
Court is statutorily obligated to disregard fictitious
defendants in determining whether diversity exists. Rec. Doc.
17 at 3. Furthermore, defendants argue that there is no
evidence that John Doe was a Cox employee or that he was
domiciled in Louisiana. Id. at 3-4.
Courts have original jurisdiction, called diversity
jurisdiction, over all civil actions where the matter in
controversy exceeds $75, 000 and is between citizens of
different states. 28 U.S.C. §1332(a). If a civil action
over which the district courts of the United States have
original jurisdiction is brought in a State Court, it
“may be removed by the defendant or defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). However, “in
determining whether a civil action is removable on the basis
of [diversity jurisdiction], the citizenship of defendants
sued under fictitious names shall be disregarded.”
Id. at (b). “If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c).
main issues raised by the parties in the instant motion to
remand are 1) whether the fictitious defendant John Doe
defeats diversity, and 2) whether the amount in controversy
is greater than $75, 000. The notice for removal identifies
the domicile of Cox Communications Louisiana, Cox
Communications, Inc., and National General Insurance Company
as located outside of Louisiana (Rec. Doc. 1 at 1) and
plaintiff does not present any arguments opposing this in her
motion, so it is not necessary to analyze the domicile of the
Fictitious defendant John Doe does not defeat
text of the removal statute, 28 U.S.C. §1441(a), clearly
states that “the citizenship of defendants sued under
fictitious names shall be disregarded.” Plaintiff
asserts that cases from this district have identified an
exception to the language of §1441(a), where a
fictitiously-named defendant can be considered by a court if
the allegations provide a “definite clue” about
the defendant's identity. Rec. Doc. 15-1 at 5-6.
Plaintiff cites Tompkins v. Lowe's Home Center,
Inc., a 1994 case from this district, as support for her
assertion. Rec. Doc. 15-1 at 5 (citing Tompkins v.
Lowe's Home Ctr., Inc., 847 F.Supp. 462, 464 (E.D.
La. 1994)). However, a recent case from this district
rejected Tompkins' holding, noting that
Tompkins relied on a case that predated the addition
of the language to §1441 instructing courts to disregard
fictitious names. See, Dupont v. Costco
Wholesale Corp., No. 17-4469, 2017 WL 3309599, at *2
(E.D. La. Aug. 3, 2017). While a few older cases in this
district have applied this exception, more recent cases have
rejected this interpretation and continued to disregard the
identity of fictitious defendants in evaluating diversity.
See Breaux v. Goodyear Tire & Rubber Co., No.
15-0837, 2015 WL 4635566, at *2 (E.D. La. Aug. 3, 2015)
(holding that the language of §1441 is clear and
explicit and acknowledging “the more recent cases in
this circuit that have indicated that the language of
§1441 does not allow for the definite clue
jurisdictional exception. . .”); Alonzo v.
Shoney's, Inc., No.00-3109, 2001 WL 15641, at *3
(E.D. La. Jan. 5, 2001) (noting that the Fifth Circuit has
never addressed the “definite clue” argument but
finding it unpersuasive “that the unambiguous language
‘shall be disregarded' allows for the proposed
exception.”). The Fifth Circuit has held that
§1441(a) does not apply when a fictitious defendant is
identified, and a named party is substituted for the John Doe
defendant. See Doleac ex rel. Doleac v. Michalson,
264 F.3d 470, 477 (5th Cir. 2001). However, this is not the
case before the Court today as plaintiff is not seeking to
substitute John Doe with a named party. Therefore, this Court
is not persuaded that the clear language of §1441 allows
for an exception permitting the consideration of fictitious
defendants. Fictitious defendant John Does cannot defeat
diversity jurisdiction in this case.
Amount in Controversy
case is removed from a state court that prohibits plaintiffs
from petitioning for a specific monetary amount, as Louisiana
does, the Fifth Circuit has held that “the removing
defendant must prove by a preponderance of the evidence that
the amount in controversy is adequate.” Felton v.
Greyhound Lines, Inc., 324 F.3d 771, 773 (5th Cir.
2003). This requirement is met if: “(1) it is apparent
from the face of the petition that the claims are likely to
exceed $75, 000, or, alternatively, (2) the defendant sets
forth ‘summary judgment type evidence' of facts in
controversy that support a finding of the requisite
amount.” Manguno v. Prudential Prop. & Cas.
Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). In this
case, defendants did not provide summary judgment type
evidence, so this Court considers only whether it is facially
apparent from the removal petition that plaintiff's
claims are likely to exceed $75, 000. Defendants correctly
note that plaintiff's current condition does not control
whether jurisdiction was proper at the time of removal, and
that once the court's jurisdiction is established,
subsequent events reducing the amount in controversy
generally do not divest the court of diversity jurisdiction.
Rec. Doc. 12 at 2. Therefore, in reaching its decision, this
Court considers the injury and damages alleged in
plaintiff's initial petition rather than her assessment
of injuries now. Defendants noted in their removal petition