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Russell v. Escobar

United States District Court, M.D. Louisiana

June 3, 2019



         Please take notice that the attached Magistrate Judge's Report and Recommendation 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.



         Before the court is the Motion to Remand (“Motion”) filed by Plaintiff James R. Russell (“Plaintiff”).[1] The Motion is opposed by removing defendants Jose F. Bonilla Escobar (“Escobar”) and Hallmark County Mutual Insurance Company (“Hallmark”) (collectively, “Defendants”).[2] For the reasons set forth herein, the undersigned recommends[3] that the Motion be denied.

         I. Facts and Procedural Background

         This is a civil action involving claims for damages based upon the injuries allegedly sustained by Plaintiff on May 17, 2017 in St. Landry Parish, Louisiana, when Plaintiff's tractor-semitrailer was sideswiped by a tractor-semitrailer driven by Escobar, which was insured by Hallmark.[4] As a result of the accident, Plaintiff filed a Petition for Damages (“Petition”) against Defendants on or about April 25, 2018 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge.[5] On June 27, 2018, Defendants removed the matter to this Court asserting that this Court has diversity jurisdiction under 28 U.S.C. § 1332.[6] Specifically, the Notice of Removal alleges that Plaintiff is a citizen and domiciliary of Louisiana and Escobar and Hallmark are domiciliaries of Texas.[7] Accordingly, the Notice of Removal established that the parties are diverse.

         The Notice of Removal, referencing the Petition, alleged the following to establish the amount in controversy:

Although the Defendants deny any liability to Plaintiff, the amount in controversy exceeds $75, 000, exclusive of interest and costs. Plaintiff's Petition does not allege the amount in controversy falls below $75, 000, as required by Article 893 of the Louisiana Code of Civil Procedure.[8]

         Thus, it was not apparent from the Notice of Removal if Plaintiff's claims are likely to exceed $75, 000.00.

         Nor does Plaintiff's Petition contain sufficient facts to establish the amount in controversy. Therein, Plaintiff alleges that Plaintiff, the driver of the “RUSSELL 18 WHEEL VEHICLE, ” was at a complete stop while waiting to take a right turn into a truck stop in St. Landry Parish when he was allegedly “sideswiped” by defendant Escobar, the driver of the “BONILLA 18-WHEEL VEHICLE.”[9] As a result of this accident, Plaintiff claims that he has suffered “acute injuries to his neck, back, body as a whole and any and all other injuries to be shown upon trial of this matter” and “disabling bodily injuries.”[10] Plaintiff seeks past, present, and future compensatory damages for physical pain and suffering, mental pain, anguish, and distress, medical expenses, loss of enjoyment of life, and lost wages, as well as all other damages “which shall be proven at trial of this matter, ” legal interest, costs, and expert witness fees.[11] Other than Plaintiff's general allegations of “acute injuries to his neck, back, body as a whole” and “disabling bodily injuries” as a result of the alleged sideswipe, Plaintiff did not provide any information regarding the actual injuries Plaintiff allegedly sustained as result of the accident. “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.”[12]

         As a result, on July 3, 2018, the undersigned sua sponte ordered Defendants to file a memorandum and supporting evidence, specifically concerning whether the amount in controversy requirement in 28 U.S.C. § 1332 was met.[13] On July 10, 2018, Defendants filed their Motion to Extend Deadline to Respond to the Court's Order and sought leave to conduct discovery limited to the issue of the Court's subject matter jurisdiction.[14] Defendants contended they were not in possession of Plaintiff's medical records or other relevant evidence as to the amount in controversy because no discovery has been conducted, and claimed that they could not properly respond to the Court's Order requiring supplemental briefing until they obtained discovery relative to Plaintiff's damages.[15]

         The Court exercised its discretion and granted the Defendants' motion, giving the parties 60 days to conduct jurisdictional discovery.[16] On September 7, 2018, Defendants filed their Memorandum on Subject Matter Jurisdiction (“Memorandum”) in compliance with the Court's July 3, 2018 Order, [17] and filed Plaintiff's medical records under seal in support of their position that the amount in controversy exceeds $75, 000, exclusive of interest and costs.[18] Plaintiff responded with the instant Motion.[19]

         II. Arguments of the Parties

         A. Defendants' Memorandum

         Defendants acknowledge in their September 7, 2018 Memorandum in support of subject matter jurisdiction that, as Louisiana law does not allow Plaintiff to plead a specific amount of damages, Defendants have the burden to establish that the amount in controversy is met pursuant to 28 U.S.C. § 1446(c)(2), [20] in one of two ways: (1) either by demonstrating that it is “facially apparent” from the petition that the claim likely exceeds $75, 000, or (2) by providing “summary judgment-type” evidence relevant to the amount in controversy at the time of removal.[21] If Defendants provide evidence to show by a preponderance that the amount is met, then the burden shifts to Plaintiff to show to a legal certainty that the amount in controversy is not met.[22]

         Defendants concede that it is not facially apparent from Plaintiff's Petition that the jurisdictional minimum is met; however, Defendants contend that Plaintiff's medical bills and records, which it received during limited discovery, indicate that Plaintiff's damages will exceed the jurisdictional minimum.[23] Defendants cite to the following medical evidence culled from Plaintiff's medical records:[24] (1) Plaintiff had pre-existing injuries from a prior motor vehicle accident that occurred on February 8, 2017 (“the February accident”), about three months before the accident at issue herein (“the May accident”), for which Plaintiff was already receiving chiropractic care that he continued after the May accident; (2) Plaintiff began treating with neurosurgeon Dr. Anthony Ioppolo, MD, a month after the May accident. Dr. Ioppolo ordered cervical and lumbar MRIs on August 22, 2017, from which he noted disc bulging at L4 and L5 with foraminal stenosis, a herniated disc at C6 deforming the left ventral surface of the cord, and straightening of the normal curvature; (3) Plaintiff received epidural injections in October 2017 at c6-7 ordered by Dr. Ioppolo and performed by Dr. Sean Graham, which afforded partial relief; (4) Plaintiff received a cervical dorsal medial branch block at C5-6 and C6-7 in November 2017, which did not provide relief. According to Defendants, “Plaintiff reported neck and lower back pain at level 8/10 which radiates to the left arm and leg and difficulty walking. He reported heaviness and pain in neck, pain in his left hand with weakness and dropping things.”[25] Dr. Graham diagnosed cervical radiculitis and herniation of lumbar discs and cervical discs; (5) Plaintiff was referred by Dr. Ioppolo for a possible anterior cervical discectomy and fusion surgery in December 2017; (6) Plaintiff saw Dr. Oberlander in March 2018, who opined that his conditions were related to the two accidents and recommended continuing with conservative therapy but estimated that the recommended surgery would be $88, 041.92.[26] Furthermore, Defendants contend that Plaintiff's records indicate that Plaintiff has been treated with pain medication and muscle relaxers throughout his treatment and Plaintiff's past medical bills at the time of filing totaled $18, 295.

         In light of the foregoing, Defendants argue that, “[g]iven his alleged continuing pain and the surgery that has been recommended, it is likely that Plaintiff's medical expenses alone will exceed the amount in controversy….” Defendants also rely on Plaintiff's claim for future medical expenses and point to the estimated cost of the orthopedic surgery, which they contend is significant. Finally, Defendants assert that Plaintiff also seeks general damages for past, present, and future physical and mental pain and suffering, disability, loss of enjoyment of life, and lost income, and argue that, considering that Plaintiff has treated and continues to treat, and is seeing an orthopedic surgeon, his general and special damages will exceed the jurisdictional minimum.[27]

         B. Plaintiff's Motion to Remand

         Plaintiff seeks remand based on the argument that Defendants have not sustained their burden to prove that the amount in controversy is met by a preponderance of the evidence. Plaintiff avers that, while it is true that Plaintiff is a candidate for a cervical fusion surgery and has incurred past medical expenses of $18, 295, Defendants have not established a causal connection between the surgery recommendation or those medical expenses and the May accident. Rather, Plaintiff argues that Plaintiff sustained cervical and lumbar injuries as a result of the February accident and began treatment in March 2, 2017 with Dr. Thomas Rathmann, at which time he complained of pain in those areas with muscle spasms as well as headaches. Plaintiff cites to the following medical evidence, which predates the May accident by one week: Plaintiff had an MRI of the lumbar and cervical spines on May 10, 2017, which, according to Plaintiff, revealed “straightening of the lumbar lordosis with subligamentous annular bulging at l2-4, L4-5, and L5-S1, ” and “a left paracentral disc herniation at C5-6 measuring 4.2 mm and a left paracentral subligamentous disc herniation at C6-7 measuring 3.5 mm.”[28] Further, annular tearing was noted, and an abnormal T2 signal was noted on the cervical MRI, which “indicat[es] edema and possible disc hemorrhaging, ” and Plaintiff was subsequently referred to Dr. Ioppolo for evaluation.[29] Therefore, at the time of the May accident, Plaintiff was already treating with Dr. Rathmann and he continued to treat with Dr. Rathmann. After the May accident, Plaintiff underwent several MRI scans, including the August 22, 2017 scan noted by Defendants, which continued to reveal the bulging at L4-5 and L5-S1 and the disc herniation at C6-7 that had been identified prior to the May accident as referenced above.[30]

         Plaintiff argues that, while Defendants rely on Plaintiff's past medicals of $18, 295 and Dr. Ioppolo's surgery recommendation to establish the amount in controversy, Defendants only assume that such evidence is causally related to Plaintiff's claims at issue in the instant matter.[31]However, according to Plaintiff, the medical evidence does not support that assumption because the medical records do not show if the injuries were related to the February accident, the May accident, or a combination of both, and even if Plaintiff's treatment was necessitated by a combination of both, the records do not attribute the injuries to the respective accidents. Plaintiff argues that Defendants “have not stipulated that the loss subject to this litigation is the causal factor for Mr. Russell's surgical recommendation; on the contrary, it is anticipated that the defendants will deny causation and further the relatedness of the surgery once removal to federal court has been achieved.”[32] Plaintiff thus contends that, until medical testimony, and not mere medical records, establishes the causal relationship between the accidents and Plaintiff's injuries, treatment and/or surgery, the amount in controversy is not readily discernable. Plaintiff argues that Defendants had 60 days to obtain such medical testimony but failed to, and without it, they cannot sustain their burden.[33]

         C. Defendants' Opposition to Remand

         Reiterating the prior arguments urged in their Memorandum, Defendants argue that Plaintiff's Petition, on its face, alleges that Plaintiff's injuries were caused by the May accident. Defendants obtained Plaintiff's medical records, which show that, to date, Plaintiff's medical bills total $18, 295 and Plaintiff has been recommended to undergo a costly orthopedic surgery. As such, Defendants contend that Plaintiff's medical expenses alone will exceed $75, 000, without considering Plaintiff's claims for future medical expenses, past, past, present and future suffering, and lost income.[34] Defendants argue that, “[t]he fact that there was a preceding accident to which some or all of Plaintiff's damages may be attributable is a controversy. Thus, the amount established by Defendants is in controversy.”[35] By virtue of the foregoing, Defendants contend that they have met their burden, which is to “produce evidence sufficient to constitute a preponderance showing that, regardless of the style or wording of the demand, the amount in controversy actually exceeds § 1332's jurisdictional threshold….”[36] Thus, Defendants argue that the onus is on Plaintiff to establish to “a legal certainty” that the amount in controversy is not met, either by (1) showing state procedural rules bind Plaintiff to the pleadings, or (2) filing a binding stipulation or affidavit[37] to that effect with the Petition.[38]

         Defendants argue that Plaintiff's reliance on the allegation that no medical evidence exists to demonstrate that the “medicals” that were incurred after “the accident” are casually related to the May accident[39] is refuted by the fact that the medical records at issue were produced by Plaintiff in response to Defendants' discovery requests to Plaintiff for “evidence of the damages Plaintiff claimed were related to the subject accident.”[40] Defendants argue that it is disingenuous for Plaintiff to offer the medical records as evidence of his damages from the May accident but then claim that Defendants have not proven that the injuries and medical expenses reflected in those records are related to the May accident.[41]

         Finally, Defendants argue that they are not required to prove Plaintiff's case before the threshold jurisdictional question is answered. Rather, Defendants have met their burden based on Plaintiff's claims and the medical records that Plaintiff produced in support of his claims. On these grounds, Defendants contend that the Motion to Remand should be denied.[42]

         III. Law and Analysis

         A. Legal Standards

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.”[43] 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.”[44] Remand is proper if at any time the court lacks subject matter jurisdiction.[45] 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.[46]

         If removal is sought on the basis of diversity jurisdiction, then “the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy.”[47] If, however, the “[s]tate practice ... does not permit demand for a specific sum” removal is proper “if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds [$75, 000].”[48] In Louisiana state court, plaintiffs are generally prohibited from alleging a specific monetary amount of damages sought in their petitions.[49]

         The burden of proof is on the removing defendant to establish that the amount in controversy has been satisfied.[50] The defendant may make this showing by either (1) demonstrating that it is facially apparent that the claims are likely above $75, 000, or (2) setting forth facts in controversy that support a finding of the jurisdictional minimum.[51] “A showing only that the damages ‘could well exceed' the jurisdictional amount or that there is ‘some possibility' that the plaintiff ‘could recover more' than the jurisdictional amount is insufficient to carry the removing defendant's burden.”[52] Moreover, the parties “are not free simply to agree that the jurisdictional amount requirement has been satisfied, since parties cannot by stipulation or any other mechanism confer subject matter jurisdiction on the federal courts. Further, a federal court will not permit a defendant to consent to jurisdiction or to fail to challenge it.”[53]

         If the defendant can produce evidence sufficient to show by a preponderance, i.e., summary judgment-type evidence, that the amount in controversy exceeds the jurisdictional threshold, the plaintiff can defeat diversity jurisdiction only by showing to a legal certainty that the amount in controversy does not exceed $75, 000.[54] The jurisdictional facts that support removal must be judged at the time of removal.[55]

         Since the parties are of diverse citizenship, which is undisputed, the only issue with regard to the Court's exercise of subject matter jurisdiction is whether the amount in controversy has been satisfied under 28 U.S.C. § 1332(a).

         B. It Is Not Facially Apparent From the Petition That the Amount in Controversy Is Met.

         It is not facially apparent from the Petition that the amount in controversy is likely to exceed $75, 000, which was the reason for the July 3, 2018 sua sponte order.[56] As explained above, Plaintiff's Petition only alleges boilerplate categories of damages including physical and mental pain and suffering, medical expenses and lost wages and only generally alleges injuries to his neck, back, and “body as a whole.”[57] There is no allegation regarding Plaintiff's specific injuries, nor is there any information regarding claimed medical expenses or lost wages/earnings. “If the complaint is vague with regard to the types of injuries, medical expenses incurred, and future medical problems resulting from the incident, the court must conclude that it was not ‘facially apparent' that the amount of damages would exceed $75, 000.”[58] Based on the foregoing, the amount in controversy is not facially apparent from the Petition. Defendants concede this point.[59]

         Since it is not facially apparent from the Petition that Plaintiff's damages will exceed the federal jurisdictional amount, the Court must next consider whether Defendants have met their burden of proving, through summary judgment-type evidence, that the amount in controversy in this case is likely to exceed $75, 000.

         C. Defendants Have Met Their Burden of Establishing that the Amount in Controversy Likely Exceeds $75, 000, Exclusive of Interest and Costs

         Based upon a review of the record, Defendants have established by a preponderance of the evidence that the amount in controversy is met. Defendants introduced medical records and invoices of Plaintiff's treatment, referenced in detail above, [60] which reflect that Plaintiff received treatment before the May 2017 accident and has continued treatment with a chiropractor[61] and a neurosurgeon, [62] including MRIs, [63] steroid injections, [64] a branch block, [65] and pain medication for three bulging discs, two herniated discs, and annular tearing.[66] Plaintiff's cervical and lumbar pain has been attributed generally to both accidents, and Plaintiff's records indicate that Plaintiff did not have similar problems before the accidents.[67] In connection with treatment, Plaintiff has incurred $18, 295 in medical bills[68] and Plaintiff is recommended for a cervical surgery that is estimated to cost $88, 041.92.[69] According to Defendants' “Rule 1006 Medical Expense Summary, ”[70] the $18, 895 in medical expenses were all related to treatment that was provided after the May accident, and the records show that the surgery was recommended on March 15, 2018, also after the May accident.[71]

         The Court is not persuaded by Plaintiff's argument that Defendants have not satisfied their burden because Defendants have not shown that the referenced expenses and/or surgery are related solely to the May accident.[72] The salient point is that Plaintiff claims he suffered “acute injuries to his neck, back, body as a whole”[73] in this suit. The medical records submitted by Defendants describe complaints of, and treatment for, such injuries after the May accident. Therefore, the referenced expenses and recommended surgery are amounts in controversy as to the May accident, as the need for them could have conceivably arisen because of the May accident ...

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