United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations 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 of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
the Court is a “Motion to Dismiss Removal” filed
by Defendants Kevin Wright and Alfa Mutual Insurance Company.
(R. Doc. 2). The Motion was referred to the undersigned on
May 1, 2019. The relief requested in the motion is that
“this matter be remanded from this Court to the
19th Judicial District Court for the Parish of
East Baton Rouge, State of Louisiana.” Plaintiff's
counsel has informed the undersigned's staff that there
is no opposition to the Motion.
Notice of Removal, Defendants assert that jurisdiction was
appropriate because the amount in controversy exceeds $75,
000. (R. Doc. 1 at 3, citing to Petition for Damages
¶9). Defendants further note that the Petition does not
allege that the amount in controversy falls below $75, 000 as
required by the Louisiana Code of Civil Procedure and also
that Plaintiff had refused to stipulate that his damages do
not exceed $75, 000. According to the Motion, Plaintiff has
now executed such a stipulation and therefore the Defendants
seek remand because the amount in controversy is not
Fifth Circuit has provided “a clear analytical
framework for evaluating jurisdiction for cases filed in
Louisiana state courts, with no monetary amount of damages
asserted, when they are removed to federal court on the basis
of diversity.” Simon v. Wal-Mart Stores, Inc.,
193 F.3d 848, 850 (5th Cir. 1999) (citing Luckett v.
Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999).
such a situation, the removing defendant must prove by a
preponderance of the evidence that the amount in controversy
exceeds $75, 000.” Id. “The defendant
may make this showing in either of two ways: (1) by
demonstrating that it is facially apparent that the claims
are likely above $75, 000, or (2) by setting forth facts in
controversy-preferably in the removal petition, but sometimes
by affidavit-that support a finding of the requisite amount.
Id. (internal quotation marks omitted).
Petition, Plaintiff alleges that as a result of an automobile
accident, he sustained “much pain suffering, anguish,
loss of sleep, cervical and lumbar injuries, exacerbation of
pre-existing injuries, loss of quality of life and other
damages to be shown at the trial of the instant matter. (R.
Doc. 1-4 at 3). The Petition asserts general damages
consistent with these alleged injuries as well as special
damages including medical expenses, loss of future earning
capacity, and punitive damages. (R. Doc. 1-4 at 4).
not facially apparent from the Petition that the amount in
controversy requirement is satisfied. The Petition does not
provide sufficient facts for determining the severity of
Plaintiff's injuries other than the alleged broad
categories of damages typical in personal injury suits. The
Court is unable to reasonably estimate Plaintiff's
potential recovery for any particular category of alleged
damages based solely on these allegations. The Fifth Circuit
has warned that allegations of damages with “little
specificity” and unidentified medical expenses are
insufficient to support a finding that the amount in
controversy is facially apparent. See Simon, 193
F.3d at 850-51. The Petition does not state, as required by
Louisiana Code of Civil Procedure article 893(A)(1), that the
damages sought are less than the requisite amount to
establish jurisdiction in federal court. The absence of such
a statement, although not alone determinative, “may be
considered in determining whether the amount in controversy
is satisfied.” Johnson v. Macy's
Dep's Store, No. 14-226, 2014 WL 5822788, at *4
(M.D. La. Nov. 10, 2014) (citing Weber v. Stevenson,
No. 07-595, 2007 WL 4441261, at *4 (M.D. La. Dec. 14, 2007).
the amount in controversy is not facially apparent, the Court
may consider summary judgment-type evidence to determine
whether the ambiguity regarding the jurisdictional amount at
the time of removal has been clarified. Defendant represents
that prior to removal Plaintiff refused to stipulate that his
damages did not exceed the jurisdictional amount. (R. Doc. 1
at 3). This factor may be considered in determining whether
the amount in controversy requirement is satisfied but it
cannot alone establish jurisdiction. See Lipford v.
Boehringer Ingelheim Pharm., Inc., No. 13-2858, 2014 WL
458359, at *5 (W.D. La. Feb. 4, 2014); Fernandez v.
Allstate Ins. Co., No. 07-9299, 2008 WL 314405 (E.D. La.
2008). Shortly after removal, however, Defendants represent
in the instant motion that “plaintiff has stipulated to
damages less than $75, 000.00.” (R. Doc. 2).
Court agrees with the parties that remand is appropriate.
Plaintiff's stipulation, however, cannot deprive
this court of subject matter jurisdiction that previously
existed. A post-removal filing seeking to reduce the amount
in controversy below the statutory minimum based on
subsequent events does not destroy the court's subject
matter jurisdiction. See, e.g.,
Asociacion Nacional de Pescadores (ANPAC) v. Dow Quimica
de Colombia S.A., 988 F.2d 559, 565 (5th Cir. 1993)
(“[A] plaintiff may not defeat removal by subsequently
changing his damage request, because post-removal
events cannot deprive a court of jurisdiction once it has
attached.”); Gebbia v. Wal-Mart Stores, Inc.,
233 F.3d 880, 883 (5th Cir. 2000) (“[O]nce the district
court's jurisdiction is established, subsequent events
that reduce the amount in controversy to less than $75, 000
generally do not divest the court of diversity
the amount in controversy is not facially apparent, however,
the court may consider any additional facts provided to
determine whether the amount in controversy is otherwise
satisfied. Plaintiff's post-removal stipulation may be
used to clarify whether the amount in controversy requirement
was satisfied at the time of removal. See ANPAC, 988
F.2d at 565; see also McGlynn v. Huston, 693
F.Supp.2d 585, 596 (M.D. La. 2010) (considering post-removal
affidavit regarding the amount in controversy where defendant
“failed to carry his burden of proof upon removal and
the amount in controversy remains ambiguous”);
Royal Cosmopolitan, LLC v. Star Real Estate Group,
LLC, 629 F.Supp.2d 594, 597 (E.D. La. 2008) (“When
the amount in controversy is ambiguous, as it is here, the
nonremoving party may submit [a post-removal] ...