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Manieri v. CR England, Inc.

United States District Court, E.D. Louisiana

May 8, 2019

LINDA MANIERI
v.
CR ENGLAND, INC. and ACEVES ANTHONY

         SECTION “F”

          ORDER AND REASONS

          MARTIN L. C. FELDMAN, UNITED STATES DISTRICT JUDGE

         Before the Court is the plaintiff’s motion to remand on the ground that removal was untimely. For the reasons that follow, the motion is DENIED.

         Background

         This personal injury accident arises out of a motor vehicle accident.

         On July 23, 2017, Linda Manieri was driving her vehicle on Southwest Railroad Avenue in Tangipahoa Parish. When Aceves Anthony attempted to change lanes, he entered Ms. Manieri’s lane and struck the passenger side of her vehicle. Alleging that she was injured as a result of the defendants’ negligence, on July 12, 2018, Ms. Manieri sued Aceves Anthony and his employer, C.R. England, Inc., in state court.

         Defendant C.R. England removed the lawsuit to this Court on March 22, 2019, invoking the Court’s diversity jurisdiction.[1] The plaintiff now moves to remand on the ground that removal was untimely.

         I.

         A.

         Although the plaintiff challenges removal in this case, the removing defendant carries the burden of showing the propriety of this Court’s removal jurisdiction. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); see also Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993). Remand is proper if at any time the Court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). Given the significant federalism concerns implicated by removal, the removal statute is strictly construed “and any doubt about the propriety of removal must be resolved in favor of remand.” Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008) (citation omitted); Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007) (citations omitted).

         A defendant may generally remove a civil action filed in state court if the federal court has original jurisdiction over the case -- that is, if the plaintiff could have brought the action in federal court from the outset. See 28 U.S.C. § 1441(a). To exercise diversity jurisdiction, complete diversity must exist between the plaintiff and all of the properly joined defendants, and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a)(1).

         To determine whether it has jurisdiction, the Court must consider the allegations in the state court petition as they existed at the time of removal. See Manguno, 276 F.3d at 723 (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). When the plaintiff has alleged an indeterminate amount of damages, the removing party must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); see also De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). This showing may be made by either (1) showing that it is facially apparent that the plaintiff’s claims likely exceed $75,000, or (2) setting forth “summary judgment type evidence” of facts in controversy that support a finding of the jurisdictional amount. Manguno, 276 F.3d at 723; Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). If the removing defendant cannot show that the amount in controversy is facially apparent, it may be able to “set[] forth the facts in controversy – preferably in the removal petition, but sometimes by affidavit – that support a finding of the requisite amount.” Luckett, 171 F.3d at 298.

         If the removing party satisfies its burden, the plaintiff can only defeat removal by showing that it is “legally certain that his recovery will not exceed the amount stated in the state complaint.” De Aguilar, 47 F.3d at 1412; see St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) (“It must appear to a legal ...


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