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Horton v. Fisher

United States District Court, M.D. Louisiana

May 9, 2019

DWIGHT HORTON
v.
RICKEY DEAN FISHER, TRAVELERS INSURANCE COMPANY, TRANSPORT RISK SOLUTIONS RISK RETENTION GROUP, LLC, ST. PAUL FIRE & MARINE INSURANCE COMPANY, AND KLLM TRANSPORT SERVICES, LLC

          NOTICE AND ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         This is a civil action involving claims for damages asserted by Dwight Horton (“Plaintiff”) based upon the injuries he allegedly sustained on December 7, 2017 in a motor vehicle accident that occurred in Iberville Parish, Louisiana when Horton was allegedly forced off of the road by an 18-wheeler[1] driven by Defendant Rickey Dean Fisher (“Fisher”) and owned by Fisher's employer, KLLM Transport Services, LLC (“KLLM”) (the “Accident”).[2] On December 5, 2018, Plaintiff filed his Petition for Personal Injuries and Damages (“Petition”) against Fisher, KLLM, and the insurers of the vehicle, Travelers Insurance Company (“Travelers”), Transport Risk Solutions Risk Retention Group, LLC (“Transport Risk”), and St. Paul Fire & Marine Insurance Company (“St. Paul”), in the Eighteenth Judicial District Court for the Parish Iberville. In the Petition, Plaintiff alleges that he suffered personal injuries due to Fisher's negligence in causing the Accident, including crashing head-on into a tree.[3] Plaintiff also alleges that KLLM is vicariously liable for Fisher's misconduct because Fisher was in the course and scope of his employment at the time of the Accident and that all Defendants are jointly liable to Plaintiff.[4]

         On May 3, 2019, Defendants Transport Risk and KLLM (collectively, “Removing Defendants”)[5] removed the matter to this Court, asserting that this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.[6] However, Removing Defendants have not shown that complete diversity exists or that the amount in controversy is met because their allegations are deficient, as set forth below.

         Citizenship of the Corporate Defendants

         The Notice of Removal makes the following allegations regarding the citizenship of the parties:

12) Plaintiff, Dwight Horton, is a person of full age of majority and is a Louisiana citizen.
13) Defendant, Rickey Dean Fisher, is a person of full age of majority who is domiciled in and a citizen of Oklahoma City, in the State of Oklahoma.
14) Defendant, Travelers Insurance Company, a foreign corporation, with its domiciliary address at One Tower Square, Hartford, Connecticut 06183, and who is considered a citizen of the State of Connecticut.
15) Defendant, Transport Risk Solutions Risk Retention Group, LLC, a foreign insurance corporation, with a domiciliary address of 146 Fairchild Street, Suite 135, Charleston, South Carolina, and who is considered a citizen of the State of South Carolina.
16) Defendant, St. Paul Fire & Marine Insurance Company, a foreign corporation whose domiciliary address is One Two Square, Hartford Connecticut 06103, and who is considered a citizen of the State of Connecticut.
17) Defendant, KLLM Transport Services, LLC, a foreign corporation whose domiciliary address is 1755 Wittington Place, Suite 300, Dallas, Texas 75234, and who is considered a citizen of the State of Texas.[7]

         Proper information regarding the citizenship of all parties is necessary to establish the Court's diversity jurisdiction, as well as to make the determination required under 28 U.S.C. § 1441 regarding whether the case was properly removed to this Court. In the Notice of Removal, citizenship has been adequately alleged as to Plaintiff and Defendant Fisher.[8] However, citizenship has not been adequately alleged with respect to any of the remaining Defendants in the Notice of Removal.

         As set forth above, Travelers and St. Paul are each alleged to be “a citizen of the State of Connecticut, ” with a “domiciliary address” in Connecticut.[9] However, for purposes of diversity, “A corporation is a citizen of its place of incorporation and its principal place of business.”[10] Thus, to properly allege the citizenship of a corporation, a party must identify the place of incorporation and the corporation's principal place of business in accordance with the requirements of 28 U.S.C. § 1332(c). Removing Defendants' citizenship allegations as to Travelers and St. Paul are deficient because they fail to identify Travelers' and St. Paul's places of incorporation and principal places of business (even to the extent Defendants intend the “domiciliary address” to be one or the other of those). Removing Defendants must properly identify Travelers' and St. Paul's citizenship, i.e., identify their places of incorporation and principal places of business.

         Next, the name of Transport Risk is pled as “Transport Risk Solutions Risk Retention Group, LLC”; however, Removing Defendants assert that Transport Risk is a “foreign insurance corporation” “who is considered a citizen of the State of South Carolina” and has a “domiciliary address” in South Carolina.[11] Likewise, the name of KLLM is pled as “KLLM Transport Services, LLC”; however, Removing Defendants assert that KLLM is “a foreign corporation” “who is considered a citizen of the State of Texas” with a “domiciliary address” in Texas.[12] It is thus unclear whether Transport Risk and KLLM are limited liability companies or corporations. If they are corporations, then Removing Defendants must plead both their places of incorporation and their principal places of business, see the discussion above. However, if they are actually limited liability companies (as their names suggest), then for purposes of diversity, “the citizenship of a limited liability company is determined by the citizenship of all of its members.”[13] Thus, to properly allege the citizenship of a limited liability company, a party must identify each of the members of a limited liability company, and the citizenship of each member in accordance with the requirements of 28 U.S.C. § 1332(a) and (c). The same requirement applies to any member of a limited liability company which is also a limited liability company.[14]

         Amount in Controversy

         Proper information regarding the amount in controversy is also necessary to establish the Court's diversity jurisdiction, as well as to make the determination required under 28 U.S.C. § 1441 regarding whether the case was properly removed to this Court. It is not clear from the Notice of Removal, Petition, and exhibits attached thereto whether Plaintiff's claims likely exceed $75, 000, exclusive of interests and costs.[15] Defendants acknowledge that Plaintiff's Petition does not state the amount of damages that Plaintiff seeks but rely on Plaintiff's assertion in his Petition that he “has a good faith belief that damages exceed $50, 000.”[16] Plaintiff's assertion was likely made to establish that the threshold for a jury trial in the state court was met, and the presence of that statement in light of Plaintiff's omission of a concomitant La. C.C.P. art. 893(A)(1) stipulation that his damages do not exceed the federal minimum is some evidence that the amount in controversy may be met; standing alone, however, Plaintiff's assertion that his damages exceed $50, 000 is not dispositive, [17] particularly considering Plaintiff's related responses to discovery, which are discussed below.

         Turning to the substantive allegations in the Petition, there is no information regarding the actual injuries Plaintiff allegedly sustained as result of the Accident. Rather, Plaintiff only generally alleges he “sustained personal injuries, which resulted from a head-on collision” and that he “crash[ed] into a tree.”[18] These general allegations, without more, are insufficient to establish the amount in controversy, as there is no indication of the type of injuries Plaintiff sustained, the permanence of Plaintiff's injuries, whether Plaintiff has sought treatment for the injuries, the amount of Plaintiff's lost wages, etc. Plaintiff also seeks damages for past, present, and future: pain and suffering, mental anguish, medical expenses, loss of earning capacity, loss of enjoyment of life, and disability, as well as costs and interest.[19] However, “Courts have routinely held that pleading general categories of damages, such as ‘pain and suffering, disability, lost wages, loss of earning capacity, medical ...


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