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Vareen v. Martin Transport Inc.

United States District Court, M.D. Louisiana

May 24, 2019

MICHAEL VAREEN AND MARTHA VAREEN
v.
MARTIN TRANSPORT INC., RICKY H. FISHER AND ACE AMERICAN INSURANCE COMPANY

          NOTICE AND ORDER

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE.

         This is a civil action involving claims for damages based upon the injuries allegedly sustained by Plaintiffs Michael Vareen (“Michael”) and Martha Vareen (“Martha”) (collectively, “Plaintiffs”) on April 2, 2018 on Interstate 10 in West Baton Rouge Parish, Louisiana when Plaintiffs' vehicle was rear-ended by the 18 wheeler tractor/trailer driven by Defendant Rickey H. Fisher (“Fisher”), owned by Defendant Martin Transport, Inc. (“Martin”), and insured by Defendant Ace American Insurance Company (“Ace”) (collectively, “Defendants”).[1] On or about March 29, 2019, Plaintiffs filed their Petition for Damages (“Petition”) against Defendants in the Eighteenth Judicial District Court for the Parish of West Baton Rouge.[2] On May 17, 2019, Defendants removed the matter to this Court asserting that this Court has diversity jurisdiction under 28 U.S.C. § 1332.[3]

         Proper information regarding the citizenship of all parties, and the amount in controversy, 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. The Notice of Removal alleges that Plaintiffs are domiciliaries of Louisiana, Fisher is a domiciliary of Tennessee, Martin is a Texas corporation with its principal place of business in Texas, and Ace is a Pennsylvania corporation with its principal place of business in Pennsylvania; therefore, complete diversity of citizenship appears to exist.[4]

         However, it is not clear from the Notice of Removal or the Petition whether Plaintiffs' claims likely exceed $75, 000, exclusive of interest and costs.[5] The Petition alleges that Fisher's 18-wheeler “suddenly and without warning…ran into the back of the vehicle driven by Michael Vareen and violently with full force of impact, causing your petitioners bodies to be tossed about the vehicle.”[6] Plaintiffs allege the following injuries:

         VII.

As a direct result of the above-described accident, your petitioners, MICHAEL VAREEN and MARTHA VAREEN, suffered severe injuries to the muscles, ligaments, tendons, blood vessels, nerves, and other soft tissue structures of the cervical, lumbar and thoracic regions of the spine, injuries to the nervous system and psyche; aggravation, precipitation and/or the exacerbation of prior existing non-deliberating predispositions, and including without limitation, normal degenerative changes.[7]

         In connection with these injuries, Plaintiffs claim “severe physical pain and suffering as well as keen mental and emotional anguish and distress; she has incurred expenses for medical care and treatment which she otherwise would not have incurred; she ultimately lost wages both past, present, and future and her earning capacity has been diminished; and she has been handicapped in her normal activities, ” as well as costs and interest.[8] Plaintiffs aver that these conditions “may continue, worsen, or become permanent, ” “and the full residuals and sequelae of her injuries are as yet not fully known but have been and will be severe.”[9]

         In the Notice of Removal, Defendants allege that “Plaintiffs' allegations if accepted as true, may garner an award in excess of $75, 000, exclusive of interest and costs, ” and “it is facially apparent from plaintiffs' petition that the amount in controversy exceeds $75, 000, exclusive of interest and costs” because “plaintiffs failed to allege that an amount less than $75, 000 is being sought” in accordance with La. C.C.P. art. 893.[10]

         The foregoing does not provide enough information to determine if Plaintiffs' claims will likely exceed $75, 000 exclusive of interest and costs. First, Plaintiffs' general allegations of “severe physical pain and suffering, ” “severe injuries” to muscles, ligaments, tendons, etc. of the cervical/lumbar/thoracic regions of the spine, “injuries to the nervous system and psyche” and demands for general categories of damages (e.g., medical expenses, physical pain and suffering, lost wages, and mental anguish, etc.)[11] are insufficient to establish the amount in controversy. “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.” Davis v. JK & T Wings, Inc., and cases cited therein.[12]

         In this case, there is no description of any of the actual injuries suffered by either of the Plaintiffs, the nature of Plaintiffs' medical treatment, the actual amount of medical expenses Plaintiffs have incurred thus far, the nature of Martha's alleged “handicap[] in her normal activities, ” Plaintiffs' prognosis and recommended future treatment, and whether Plaintiffs are working/can work. Defendants have not offered any specific medical information regarding Plaintiffs' injuries, treatment, prognosis, and expenses in support of the amount in controversy. There is also no evidence of any settlement demands, discovery responses, or relevant documents produced in discovery that would have bearing on the amount in controversy.

         Further, Defendants' reliance on Plaintiffs' failure to allege that they are seeking less than $75, 000 as required by La. C.C.P. art. 893[13] is also insufficient to establish the amount in controversy. A Plaintiff's omission of such a statement regarding damages may be considered, but it is not determinative of whether the amount in controversy is met.[14] Likewise, while Plaintiffs' demand for a jury trial in the Petition indicates that Plaintiffs seek at least $50, 000 in damages, [15] it is not dispositive of whether Plaintiffs' claims likely exceed $75, 000, exclusive of interest and costs.[16] Based on the foregoing and taken as a whole, it is not apparent from either the Notice of Removal or the Petition whether Plaintiffs' claims are likely to exceed $75, 000, exclusive of interest and costs.

         Although Plaintiffs have not filed a Motion to Remand, the Court sua sponte raises the issue of whether it may exercise diversity jurisdiction in this matter, specifically whether the amount in controversy requirement has been met.[17]

         Accordingly, IT IS HEREBY ORDERED that on or before June 3, 2019, Defendants Rickey H. Fisher, Martin Transport, Inc., and Ace American 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 June 10, 2019, Plaintiffs Michael and Martha Vereen shall file either: (1) a Notice stating that Plaintiffs do not dispute that Defendants have established the jurisdictional ...


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