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Johnson v. Beale

United States District Court, M.D. Louisiana

April 24, 2019

BARBARA JOHNSON
v.
MARTERIOUS BEALE, ET AL.

          NOTICE

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         RECOMMENDATION AND ORDER

         Before the Court is a Motion for Remand (the “Motion”)[1] filed by plaintiff, Barbara Johnson (“Plaintiff”). No. timely opposition to the Motion has been filed.[2] Additionally, Plaintiff has filed an Unopposed Motion for Status Conference[3] by which Plaintiff asks this Court “to convene a status conference by telephone at the Court's earliest convenience to discuss future scheduling, anticipated discovery, the pending motion to remand, and if further proceedings in this case are warranted in this Court.”[4]

         For the reasons set forth herein, the undersigned recommends[5] that the Motion[6] be granted and that this matter be remanded to the 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana.

         The undersigned further recommends that Plaintiff be awarded fees and costs under 28 U.S.C. § 1447(c). However, because Plaintiff has not submitted any information regarding the appropriate amount of such fees, in the event this recommendation is adopted, the undersigned recommends that Plaintiff be ordered to file, within ten (10) days of the Ruling adopting this recommendation, a Motion with supporting documents, for costs and actual expenses, including attorney fees.

         Considering these recommendations, the Unopposed Motion for a Status Conference[7] will be denied.

         I. Background

         Plaintiff filed a Petition for Damages (the “Petition”) in state court for damages allegedly arising out of injuries Plaintiff sustained in a September 12, 2017 automobile accident. Plaintiff named Marterious R. Beale (“Beale”), Enterprise Holdings, Inc. (“Enterprise”), ABC Insurance Company, and State Farm Mutual Automobile Insurance Company (“State Farm”) as defendants.[8]On October 26, 2018, State Farm filed a Notice of Removal pursuant to 28 U.S.C. § 1332 based on the assertion that the amount in controversy exceeds $75, 000, exclusive of interest and costs, and the parties are completely diverse.[9]

         On October 30, 2018, State Farm was ordered to file a Motion to Substitute its Notice of Removal with a Notice of Removal that adequately alleged the citizenship of all parties.[10]Additionally, the court sua sponte raised the issue of whether the amount in controversy requirement was met and ordered State Farm to file a memorandum and supporting evidence regarding the amount in controversy.[11] Although State Farm timely filed its Motion to Substitute, it did not submit a memorandum and evidence regarding the amount in controversy. While State Farm's Amended and Supplemental Notice of Removal (the “Amended Notice”), for the most part, repeated verbatim the allegations regarding the amount in controversy as set out in its original Notice of Removal, the Amended Notice did reflect some revisions regarding State Farm's position on the amount in controversy.[12] On November 15, 2018, State Farm was ordered to file either (1) a memorandum and supporting evidence concerning whether the amount in controversy requirement of 28 U.S.C. § 1332 is met; (2) a Notice stating that State Farm rests on its position regarding the amount in controversy as set forth in the Amended and Supplemental Notice of Removal; or (3) a Motion to Withdraw its Notice of Removal and remand the case.[13] On December 5, 2018, State Farm filed a Notice of Intent to Rest on Original and Amended and Supplemental Notice of Removal for Amount in Controversy (the “Notice”).[14]

         On December 14, 2018, Plaintiff filed the instant Motion, seeking an order remanding this action to state court and “requiring payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”[15] Plaintiff contends that remand is proper because State Farm “has not satisfied the amount-in-controversy requirement.”[16] Plaintiff asserts that “[i]t is not apparent from the face of the Plaintiff's Petition for Damages or the Notice of Removal that Plaintiff's claims in this matter are likely to exceed $75, 000. Even though Plaintiff seeks several items of damages, there is no indication of the actual injuries Plaintiff sustained or the amount in controversy related to her alleged injuries or damages.”[17] Accordingly, Plaintiff contends that State Farm has failed to carry its burden of establishing federal subject matter jurisdiction.[18] As noted above, no timely opposition to the Motion was filed, nor did State Farm seek leave to file an untimely opposition.

         II. Law and Analysis

         A. Removal Standard

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.”[19] When original jurisdiction is based on diversity of citizenship, the cause of action must be between “citizens of different States” and the amount in controversy must exceed the “sum or value of $75, 000, exclusive of interest and costs.”[20] In removed actions, diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court.[21] The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand.[22] The removing party has the burden of proving federal diversity jurisdiction.[23] Remand is proper if at any time the court lacks subject matter jurisdiction.[24]

         B. State Farm Has Failed to Establish, by a Preponderance, that the Amount in Controversy Likely Exceeds $75, 000, Exclusive of Interest and Costs

         Louisiana law prohibits plaintiffs from specifying a monetary amount of damages in their state court petitions.[25] When a plaintiff has not alleged a specific amount of damages, a removing defendant bears the burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75, 000.[26] The removing party may make this showing either: “(1) by demonstrating that it is ‘facially apparent' that the claims are likely above $75, 000, or (2) ‘by setting forth the facts in controversy-preferably in the removal petition, but sometimes by affidavit-that support a finding of the requisite amount.'”[27] Once a removing defendant has established, by a preponderance, that the amount in controversy exceeds the federal jurisdictional amount, “[i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”[28]

         In its Amended Notice, State Farm continues to assert that it is “facially apparent” from the Petition that the amount in controversy exceeds $75, 000.00 and relies on, inter alia, the allegations of Petition. In the Petition, Plaintiff asserts that Beale, while operating a vehicle owned by Enterprise, “struck petitioner's vehicle violently”[29] and that as a result of the accident, Plaintiff “sought medical treatment for injuries and incurred medical and related expenses, in addition to a loss and/or diminution of her earnings and earning capacity, physical injury, physical pain and suffering, mental anguish and distress, and loss of enjoyment of life, all past, present, and future.”[30]Plaintiff further alleges that as a result of the accident, she “has suffered, continues to suffer, and/or will suffer in the future” “[s]evere physical pain, ” “[d]ecreased flexion capabilities, ” “[s]evere mental anguish and distress, ” [f]unctional and/or anatomical disability, ” “[l]oss of enjoyment of life, ” and “[i]nability to engage in and perform personal activities.”[31] Finally, Plaintiff alleges in her Petition that she “has incurred significant medical expenses to diagnose and treat her injuries and will incur future medical expenses all as a result of this accident.”[32]

         Plaintiff's Petition does not provide any specific information regarding Plaintiff's alleged injuries, incurred or anticipated medical treatment or expenses, or alleged disability. Moreover, there is no information regarding Plaintiff's diminution of earnings or lost earning capacity. “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.”[33]

         In addition to the allegations of Plaintiff's Petition, State Farm also argues that:

The Petition for Damages does not aver that Plaintiff's cause of action does not exceed $75, 000.00, exclusive of interest and costs, nor does Plaintiff's Petition for Damages offer a binding stipulation that Plaintiff will not seek to enforce any judgment that may be awarded in excess of $75, 000.00, as would be required pursuant to Davis, et al v. State Farm, et al, Case 2:06-cv-00560-SSV-ALC (E.D. La. June 7, 2006). Plaintiff, through her counsel of record, has refused to stipulate to damages of $75, 000.00 or less, stating that Ms. Johnson's treatment for injuries allegedly sustained as a result of the accident of September 12, 2017 accident made subject of this suit continues and the severity of her alleged injuries, as well as the extent of her ongoing medical treatment is not fully quantifiable at this time. Accordingly, based on said representations, it appears that plaintiff's alleged treatment has continued for a period of 13.5 months to present and is ongoing at this time.[34]

         While State Farm relies on Plaintiff's failure to include a jurisdictional allegation in the Petition, the failure to include such an allegation is not dispositive of the amount in controversy. Louisiana Code of Civil Procedure 893(A)(1) provides that “[n]o specific monetary amount of damages shall be included in the allegations or prayer for relief of any original, amended, or incidental demand. The prayer for relief shall be for such damages as are reasonable in the premises except that if a specific amount of damages is necessary to establish…the lack of jurisdiction of federal courts due to insufficiency of damages…a general allegation that the claim exceeds or is less than the requisite amount is required.” With respect to La. C.C.P. article 893(A)(1), 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.”[35]

         Likewise, Plaintiff's alleged “failure to stipulate” is not dispositive of the amount in controversy issue. Although State Farm asserts that Plaintiff has refused to stipulate to damages less than the jurisdictional threshold, State Farm also contends that Plaintiff's counsel stated that Plaintiff's damages are “not fully quantifiable at this time.”[36] Accordingly, it is not entirely clear whether Plaintiff has refused to stipulate to the amount of her damages because those damages exceed $75, 000.00, or instead because Plaintiff does not know the amount of her damages. In any event, and assuming State Farm provided Plaintiff with a proposed stipulation that Plaintiff refused to sign, [37] this Court has explained that a plaintiff is under no legal obligation to sign such a stipulation, and that the failure to stipulate is but one factor that the court may consider when analyzing whether the amount in controversy is present.[38]

         Finally, while State Farm states that “[u]pon information and belief, the auto liability policy issued by ABC Insurance Company to and/or in favor of Defendants…is a commercial auto liability policy with liability limits well in excess”[39] of the jurisdictional threshold, there is no information regarding the identity of the fictitious insurer, nor the limits of that insurance policy. Nor does State Farm assert that Plaintiff has made a demand on that unknown policy. Moreover, while State Farm notes the policy limits of its own insurance policy, the liability limits ...


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