United States District Court, W.D. Louisiana, Lake Charles Division
D. CAIN, JR. JUDGE
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a Motion to Remand filed by plaintiff Bonnie
Thompson. Doc. 4. Defendant, Shelter Insurance Company
("Shelter"), opposes the motion. Doc. 6. The matter
has been referred to the undersigned for review, report, and
recommendation in accordance with the provisions of 28 U.S.C.
reasons stated IT IS RECOMMENDED that the
motion be DENIED.
alleges that on November 23, 2016, she was involved in an
automobile accident when her vehicle was struck from behind
by another vehicle driven by Roger E. Fields. See
Doc. 1, att. 5. Plaintiff contends that she was operating her
vehicle with the permission and consent of the owner,
Cherokee Marine, LLC, who maintained uninsured/underinsured
motorist insurance with defendant Shelter. Id. at 2.
Plaintiff alleges that the accident caused "injuries to
her body as a whole, including, but not limited to her neck
and back." Id. Plaintiff further alleges that
the amount she recovered from Fields and his insurer was
insufficient to cover her damages and she is therefore
entitled to proceed against Shelter. Id.
filed suit against Shelter in the Fourteenth Judicial
District Court, Calcasieu Parish, Louisiana on September 21,
2018. Id. at 1-4. In her petition she alleges that
she provided "sufficient proof of loss" to Shelter
yet Shelter arbitrarily and capriciously refused to make a
reasonable tender. Id. at 2-3. She asks for recovery
of penalties and attorney fees under Louisiana Revised
Statutes 22:1892 and 22:1973. Id. at 3. In her
prayer for relief plaintiff asks for judgment against Shelter
for a "reasonable amount of general damages, special
damages, lost wages, loss of earning capacity, past, present
and future medical expenses and pain and suffering."
December 18, 2018, Shelter filed an answer and an exception
of vagueness and ambiguity on the basis that the petition
failed to comply with Louisiana Code of Civil Procedure
article 893 which requires that a party plead whether the
claims are sufficient to allow a trial by jury and/or
establish the lack of jurisdiction of federal courts. Doc. 1,
att. 5, pp. 9-13. In an opposition to the exception filed on
January 23, 2019 plaintiff argued that Shelter had notice
that her claim was valued at "at least $250, 000"
from the petition and from a February 5, 2018 pre-lawsuit
proof of loss demand requesting that the $250, 000 policy
limits be tendered. Id. at pp. 23-24. The February
2018 demand was attached as an exhibit to the opposition.
Id. at pp. 31-33.
removed the case to this court on February 4, 2019 based on
diversity jurisdiction, 28 U.S.C. §1332. Shelter argues
that plaintiff's opposition to the exception of vagueness
provided the first notice that the amount in controversy
exceeded $75, 000. Shelter maintains that the petition was
"facially unclear" as to whether or not
plaintiff's damages exceeded $75, 000 and the February
2018 demand letter was sent before suit was filed. Thus
Shelter contends that the opposition to the exception was an
"amended pleading, motion, order, or other paper"
and removal within 30 days of receipt of this document was
proper and timely. See generally Doc. 1. Conversely
plaintiff argues that removal is untimely because the demand
letter and petition gave Shelter notice of the amount in
controversy. Doc. 4, att. 5.
civil action brought in a State court of which the district
courts have original jurisdiction may be removed to the
proper district court. 28 U.S.C. § 1441(a). District
courts have original jurisdiction over all civil actions
between citizens of different states where the amount in
controversy exceeds $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332(a)(1). The removing party bears
the burden of showing that removal was procedurally proper
and that federal jurisdiction exists. See De Aguilar v.
Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).
law forbids plaintiffs in state courts from pleading a
specific monetary value of damages. Gebbia v. Wal-Mart
Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000).
Therefore, when a case originally filed in a Louisiana state
court is removed to federal court on the basis of diversity,
the removing defendant must prove by a preponderance of the
evidence that the amount in controversy exceeds $75, 000.00.
Id. (citing Luckett v. Delta Airlines,
Inc., 171 F.3d 295, 298 (5th Cir. 1999)). A defendant
may meet this burden by either (1) showing that it is
facially apparent from the allegations in the petition that
the amount in controversy exceeds $75, 000, or, if it cannot