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Miller v. Verdugo

United States District Court, M.D. Louisiana

February 21, 2019

TYRAN MILLER
v.
CASTULLO IGNACIO VERDUGO, ET AL.

          NOTICE AND ORDER

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         On January 16, 2019 plaintiff, Tyran Miller (“Plaintiff”), filed a Petition for Damages (the “Petition”) against Castullo Ignacio Verdugo (“Verdugo”), Swift Transportation Co. of Arizona, LLC (“Swift”) and Mohave Transportation Insurance Company (“Mohave”), for damages allegedly arising out of a January 20, 2018 automobile accident.[1] In the Petition, Plaintiff alleges that “the sudden, unexpected and violent blow of the collision caused him to received severe and painful injuries to his mind and body”[2] and seeks to recover damages for “all mental and physical pain and suffering, medical expenses, lost wages, and any and all other items of damage which may be associated herewith.”[3]

         On February 13, 2019, Mohave filed a Notice of Removal based on federal diversity subject matter jurisdiction, 28 U.S.C. § 1332.[4] Although Mohave adequately alleges the citizenship of the individual parties, [5] the Notice of Removal is insufficient with respect to the allegations of citizenship of Swift and Mohave. Per the Notice of Removal, Swift “is a limited liability company organized under the law of the State of Delaware with its principal place of business in the State of Arizona.”[6] To properly allege the citizenship of a limited liability company or other type unincorporated association, a party must identify each of the members of the association and the citizenship of each member in accordance with the requirements of § 1332(a) and (c).[7] The same requirement applies to any member of a limited liability company or other type of unincorporated association which is also a limited liability company or unincorporated association.[8] With respect to Mohave, the Notice of Removal provides that Mohave “is a Captive Insurance Company incorporated in the State of Arizona and wholly owned by Swift Transportation Co. of Arizona, LLC.”[9] In diversity cases involving corporations, “allegations of citizenship must set forth the state of incorporation as well as the principal place of business of each corporation.”[10] While the undersigned assumes that Mohave's allegation that it is “wholly owned” by Swift is meant to indicate that Mohave's principal place of business is Arizona, that is not clear from the allegation of citizenship in the current Notice of Removal.

         In addition to the insufficiency of certain allegations of citizenship set forth above, the undersigned also sua sponte raises the issue of whether the amount in controversy requirement has been met. Plaintiff's Petition does not specify what injuries Plaintiff sustained in the accident and instead only alleges that his injuries were “severe and painful.”[11] There is no allegation in the Petition regarding the amount in controversy, and Plaintiff only lists general categories of damages. “Courts have routinely held that pleading general categories of damages, such as ‘pain and suffering, disability, lost wages, loss of earning capacity, medical expenses, etc.,' without any indication of the amount of the damages sought, does not provide sufficient information for the removing defendant to meet his burden of proving that the amount in controversy is satisfied under the ‘facially apparent' test.”[12] Accordingly, the amount in controversy is not facially apparent from the Petition, and Mohave bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy likely exceeds $75, 000.[13]

         In its Notice of Removal, Mohave points to Plaintiff's failure to include a jurisdictional allegation, and states that Plaintiff's medical specials to date total $10, 535.82.[14] While Mohave recognizes that “[s]pine injuries vary by severity, ” it asserts that damages for such injuries “often exceed $75, 000.00”[15] and that

Per medical records provided to date by Plaintiff's counsel, the Plaintiff continues to complain of neck and back pain with numbness and tingling in the ulnar digits of his left hand and tingling bilaterally in his feet. On March 30, 2018, MRI films were obtained of Plaintiff's cervical spine. According to the radiologist, the cervical MRI revealed: 1) multi-level disc desiccation throughout the cervical spine and straightening of the cervical lordosis, which were noted to be suspicious for soft tissue injury and possible muscle spasm; 2) disc herniation at ¶ 2-3 and C3-4; 3) disc bulges at ¶ 4-5 and C6-7; and 4) possible annular tear at ¶ 3-4 and C4-5. On March 30, 2018, MRI films were obtained of Plaintiff's lumbar spine. According to the radiologist, the lumbar MRI revealed: 1) disc desiccation at ¶ 5-S1 and straightening of the lumbar curvature consistent with a soft tissue injury and probable muscle spasm; 2) posterior annular bulge at ¶ 5-S1 with loss of disc height; and 3) facet hypertrophy bilaterally at ¶ 3-4, L4-5 and L5-S1. On April 11, 2018, Plaintiff's physician related the findings noted above in the cervical and lumbar MRI's to the subject accident that occurred on January 20, 2018.[16]

         Mohave also asserts that “Plaintiff's physician suggested proceeding with cervical epidural steroid injections since he failed to respond appropriately to conservative treatment.”[17] Although Mohave does cite cases wherein general damage awards for seemingly similar injuries exceeded the jurisdictional threshold, [18] this Court recently noted that “‘[s]everal recent federal court decisions have held that the removing defendant did not meet its burden of providing [sic] the amount in controversy where the plaintiff suffered disc bulging or herniation without operation, and incurred less than $15, 000 in medical expenses at the time of removal.'”[19]

         Based on the information contained in the Petition and the Notice of Removal, the court sua sponte raises the issue of whether it may exercise diversity jurisdiction in this matter, specifically, whether the amount in controversy requirement has been met.

         Accordingly, IT IS HEREBY ORDERED that on or before Thursday, February 28, 2019, Mohave Transportation Insurance Company shall file a Motion to Substitute the Notice of Removal with a comprehensive Amended Notice of Removal that adequately alleges the citizenship of Mohave Transportation Insurance Company and Swift Transportation Co. of Arizona, LLC.

         IT IS FURTHER ORDERED that on or before Monday, March 4, 2019, Mohave Transportation Insurance Company shall file a memorandum and supporting evidence concerning whether the amount in controversy requirement of 28 U.S.C. § 1332 is met.

         IT IS FURTHER ORDERED that on or before Monday, March 18, 2019, Plaintiff shall file either: (1) a Notice stating that Plaintiff agrees that Defendant has established, by a preponderance of the evidence, that the amount in controversy likely exceeds $75, 000.00;[20] or (2) a Motion to Remand.

         The case will be allowed to proceed if jurisdiction is adequately established.

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