United States District Court, M.D. Louisiana
RUSSELL D. ROWE
v.
ALPHONSO GROSS, II, WILEY SANDERS TRUCK LINES, INC. AND HUDSON INSURANCE COMPANY
NOTICE AND ORDER
ERIN
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE
This is
a civil action involving claims for damages asserted by
Russell D. Rowe (“Plaintiff”) based upon the
injuries he allegedly sustained on February 23, 2018 in a
motor vehicle accident that occurred in West Baton Rouge
Parish, Louisiana when the tractor-trailer driven by
Defendant Alphonso Gross, II (“Gross”) rolled
backwards and struck the front of Plaintiff's vehicle
(the “Accident”).[1] On January 18, 2019, Plaintiff
filed his Petition for Damages (“Petition”)
against Gross; Gross's employer, Wiley Sanders Truck
Lines, Inc. (“Wiley”); and the insurer of
Gross's vehicle, Hudson Insurance Company
(“Hudson”) (collectively,
“Defendants”) in the Eighteenth Judicial District
Court for the Parish of West Baton Rouge, wherein Plaintiff
alleges that he suffered personal injuries due to Gross's
negligence in causing the Accident. Plaintiff also alleges
that Wiley is vicariously liable for Gross's misconduct
because Gross was in the course and scope of his employment
at the time of the Accident.[2] On February 15, 2019, Defendants
removed the matter[3] to this Court, alleging that this Court
has diversity jurisdiction under 28 U.S.C. §
1332.[4] However, Defendants have not shown that
complete diversity exists because their citizenship
allegations are deficient, and have also not shown that the
amount in controversy is met, as set forth below.
Complete
Diversity
Paragraph 8 of the Notice of Removal states that
“Plaintiff alleges he is a citizen of Louisiana, and
Defendants have no reason to dispute that
allegation.”[5] However, Plaintiff's Petition does not
contain such an allegation; rather, the Petition's
introductory paragraph reflects that Plaintiff alleged that
he is a “resident” of Louisiana.[6] Furthermore,
Paragraph 11 alleges that “Mr. Gross was at the time of
the filing of the Petition for Damages and still is a
resident of Alabama.”[7]
Proper
information regarding the citizenship of all parties, and the
amount in controversy, is necessary to establish the
Court's diversity jurisdiction under 28 U.S.C. §
1332. Citizenship has been properly alleged as to Wiley and
Hudson in the Notice of Removal.[8] However, it is not clear
that the parties are diverse because citizenship has not been
adequately alleged as to Plaintiff and Defendant Gross.
With
respect to Plaintiff and Defendant Gross, the Fifth Circuit
has explained that, “For diversity purposes,
citizenship means domicile; mere residence in the State is
not sufficient.”[9]Furthermore, “[f]or adults, domicile
is established by physical presence in a place in connection
with a certain state of mind concerning one's intent to
remain there.”[10] Thus, to properly allege the citizenship
of an individual, a party must identify the individual's
domicile. Accordingly, Defendants must properly identify the
citizenship of Plaintiff and Defendant Gross, i.e.,
their domiciles.
Amount
in Controversy
Proper
information regarding the amount in controversy is also
necessary to establish the Court's diversity
jurisdiction. It is not clear from the Notice of Removal or
the Petition whether Plaintiff's claims likely exceed
$75, 000, exclusive of interests and costs, as required by 28
U.S.C. § 1332. Plaintiff's Petition merely alleges
that he “sustained personal injuries which have caused
him substantial pain and suffering as a result of this
crash” and he sustained the following elements of
damages: past, present, and future: physical pain and
suffering, mental anguish, loss of enjoyment of life, and
medical expenses, as well as disfigurement and disability,
and other elements of damages developed during discovery or
at trial, with legal interest and costs.[11]However,
pleading only general injuries and general categories of
damages is insufficient to establish that the federal
jurisdictional minimum is reached.[12] “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.”[13]
Defendants
further rely on the lack of an allegation by Plaintiff in his
Petition that his damages do not exceed the federal
jurisdictional minimum as required by La. C.C.P. Art.
893(A)(1);[14] however, this Court has held that a
“plaintiffs' failure to follow La. C.C.P. art.
893(A)(1)'s mandate, while entitled to some
consideration, in and of itself is not determinative of the
amount in controversy.”[15]
The
Notice of Removal alleges that the foregoing, which is
insufficient as explained above, coupled with Plaintiff's
medical records received prior to suit, establish that the
amount in controversy is met.[16] Defendants specifically point
to Plaintiff's past and future medical expenses of $33,
548.79 for treatment by several different providers for
injuries, including pain in his neck, back (e.g.,
several disc bulges and herniations and spinal canal
narrowing) and left ankle; and, for procedures, including
x-rays, MRIs, chiropractic visits, facet joint injections,
and recommendations for cervical epidural steroid injections
and radio frequency ablations.[17]Defendants assert that this
Court's decisions denying remand in Johnson v. Sentry
Select Ins. Co.[18]and Thibodeaux v. Geico,
[19]
which featured analogous injuries (i.e., neck pain,
back pain, disc bulges and herniations, and injections) and
medical expenses (approximately $33, 000-$45, 000), provide
support for their position that the amount in controversy is
met herein. However, those cases are factually
distinguishable on an important point; that is, the removing
defendants in Johnson and Thibodeaux
provided evidence of pre-removal settlement demands by the
plaintiffs demanding amounts far greater than $75,
000.[20] As noted in Johnson,
“this court has previously held that the amount sought
in a pre-removal settlement demand letter ‘is valuable
evidence to indicate the amount in controversy at the time of
removal.'”[21] Defendants herein have not indicated
whether Plaintiff has made any settlement demands in this
case, or any other evidence aside from the medical records
that would indicate that the amount in controversy
requirement is met (i.e., stipulations, evidence of
lost wages, discovery admissions, etc.).
It is
thus unclear from the Petition and the Notice of Removal
whether there is complete diversity among the parties and
whether the amount in controversy is satisfied. Although
Plaintiff has not filed a Motion to Remand in this case, the
Court sua sponte raises the issue of whether it may
exercise diversity jurisdiction in this matter.[22]
Accordingly,
IT IS HEREBY ORDERED that on or
before Friday, March 8, 2019, Defendants Alphonso
Gross, II, Wiley Sanders Truck Lines, Inc., and Hudson
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 Plaintiff
Russell D. Rowe and Defendant Alphonso Gross.
IT
IS FURTHER ORDERED that on or before Friday,
March 8, 2019, Alphonso Gross, II, Wiley Sanders
Truck Lines, Inc., and Hudson 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
Thursday, March 21, 2019, Plaintiff shall file
either: (1) a Notice stating that Plaintiff agrees that
Defendants have established, by a preponderance of the
evidence, that the amount in ...