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McFarland v. Protective Insurance Co.

United States District Court, E.D. Louisiana

January 29, 2019


         SECTION: “J” (4)



         Before the Court is a Motion to Remand (Rec. Doc. 8) filed by Plaintiff, Damon McFarland. Three defendants-Kelly Tours, Inc. David M. Robinson, and Protective Insurance Company (collectively, the “Removing Defendants”)-originally joined the Notice of Removal. State Farm Fire and Casualty Company (“State Farm”) did not join in the Notice but did join the Removing Defendants in filing a joint opposition to remand. (Rec. Doc. 11). Considering the motion, the memoranda, the record, and the law, the Court finds the motion should be GRANTED.


         This litigation began on February 9, 2018, when Plaintiff filed suit in the Civil District Court for the Parish of Orleans for injuries he allegedly suffered in an automobile accident. (Rec. Doc. 1-3 at 1). In his original petition, Plaintiff alleges, “Damon McFarland[] was operating his 1999 Chevrolet Express . . . when suddenly and without warning, the driver's side of your petitioner's vehicle was struck by a 2016 Vanh Bus owned by defendant, Kelly Tours, Inc. and operated [by] defendant, David M. Robinson.” (Rec. Doc. 1-3 at 2). Plaintiff demands damages for his injuries, which he alleges were caused by the negligence of Robinson and Kelly Tours, Inc. He named these defendants' liability insurer, Protective Insurance Company, and his own uninsured or underinsured motorist insurer, State Farm, as additional defendants. It is undisputed that Plaintiff is a citizen of Louisiana and each of the defendants are citizens of other states. (See Rec. Doc. 1 at 6; see generally Doc. 1-3).

         In his petition, Plaintiff does not specify any amount of damages he suffered. Discovery was therefore necessary to determine whether the amount in controversy exceeded the threshold for federal diversity jurisdiction. Accordingly, the Removing Defendants asked Plaintiff on February 19, 2018 whether Plaintiff would stipulate to damages below $75, 000. (Rec. Doc. 1-4). On February 21, 2018, Plaintiff's counsel responded via e-mail that Plaintiff could not stipulate to damages less than $75, 000. (Rec. Doc. 1-4). On March 15, 2018, the Removing Defendants filed a dilatory exception for vagueness with the state court, seeking clarification on whether the amount in controversy exceeded $75, 000. (Rec. Doc. 1-13 at 38). Hearing on that motion was delayed until June 29, 2018. (Rec. Doc. 11 at 2). Discovery meanwhile progressed. Defendants received Plaintiff's medical records on June 26, 2018 and the Removing Defendants filed their Notice of Removal (Rec. Doc. 1) on July 18, 2018.


         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) (2011). “A federal district court has subject matter jurisdiction over a state claim when the amount in controversy is met and there is complete diversity of citizenship between the parties.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir.2013) (citing 28 U.S.C. § 1332(a)). The amount in controversy required by § 1332(a) is currently $75, 000. Id. The court considers the jurisdictional facts that support removal as of the time of removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). Because removal raises significant federalism concerns, any doubt about the propriety of removal must be resolved in favor of remand. Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).



         Plaintiff does not challenge that the requirements of diversity jurisdiction are met; the Parties are diverse and the amount controversy exceeds $75, 000. Rather, Plaintiff makes various procedural complaints-first, the Notice of Removal was untimely. Pursuant to 28 U.S.C. § 1446(b)(1), a defendant ordinarily has 30 days from receipt of the initial pleading to file a notice of removal. However, if “the case stated by the initial pleading is not removable”-as is true here-“a notice of removal may be filed within 30 days after receipt by the defendant . . . of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). Plaintiff argues he refused to stipulate in an e-mail on February 28, 2018 that his damages did not exceed $75, 000 and this e-mail constitutes “other paper” from which Defendants could “ascertain[ ] that the case is one which is or has become removable.” (Rec. Doc. 8-2 at 8).

         Plaintiff's argument is basically that his non-committal answer as to the amount of damages tipped his hand as to the amount in controversy, and therefore, the clock started ticking. Plaintiff also points to an e-mail from the Removing Defendants' counsel, which indicates the Defendants already suspected the amount in controversy exceeded the damages threshold. (Rec. Doc. 8-2 at 11) (“[W]e think that this litigation is removable.”). But the Defendants' “subjective knowledge cannot convert a case into a removable action.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996). The Fifth Circuit's bright-line rule is that if a plaintiff “wishes the thirty-day time period to run from the defendant's receipt of the initial pleading, ” he must “place in the initial pleading a specific allegation that damages are in excess of the federal jurisdictional amount.” Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992).

         Consistent with that opinion, if Plaintiff wanted to trigger the 30-day deadline by virtue of an “other paper” in the form of his e-mail, Plaintiff should have specifically alleged in the e-mail that damages were in excess of the jurisdictional amount. The Court must not needlessly expend resources inquiring into what the Defendants knew or should have known. See Id. Thus, the Court agrees with the Defendants that the 30-day clock started with the receipt of Plaintiff's medical records on June 26, 2018. See Jacob v. Greyhound Lines, Inc., No. CIV.A. 02-2199, 2002 WL 31375612, at *3 (E.D. La. Oct. 21, 2002) (finding 30-day period was triggered when defendants received discovery ...

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