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Weeden v. PSC Industrial Outsourcing, LP

United States District Court, M.D. Louisiana

August 6, 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”)[1] filed by Plaintiff Matthew L. Weeden (“Plaintiff”). The Motion is opposed by Defendant PSC Industrial Outsourcing, LP (“PSC”). For the reasons set forth herein, the undersigned recommends[2] that the Motion be denied without prejudice and that the parties be permitted to engage in 60 days of limited jurisdictional discovery related to whether the amount in controversy is met.

         I. Facts and Procedural Background

         This is a civil action involving claims for damages based upon the injuries allegedly sustained by Plaintiff on December 18, 2017 while in the course of his employment at ExxonMobil Baton Rouge Refinery in East Baton Rouge Parish when Plaintiff slipped into “hot condensate” that was not covered due to an improperly-placed floor grate (the “Accident”). As a result of the Accident, Plaintiff filed a Petition for Damages (“Petition”) against PSC and John Doe, the unknown PSC employee who allegedly improperly placed the grate, on or about December 6, 2018 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. On January 10, 2019, PSC removed the matter to this Court, asserting that the Court has diversity jurisdiction under 28 U.S.C. § 1332.[3]

         Regarding the citizenship of the parties, the Notice of Removal alleges that Plaintiff is a citizen and domiciliary of Louisiana.[4] The Notice of Removal further alleges that PSC is a limited partnership, whose citizenship is determined by the citizenship of each of its two partners:[5] general partner PSC Industrial, Inc., and limited partner PSC Industrial Holdings Corp., each of which is incorporated in Delaware with a principal place of business in Texas.[6] Accordingly, the Notice of Removal establishes that the parties are diverse, as the citizenship of the fictitious defendant “John Doe” is disregarded pursuant to 28 U.S.C. §1441(b)(1).[7]

         The Notice of Removal states the following to establish the amount in controversy:

Plaintiff's Petition contains an assertion that he suffered a significant burn to his foot and leg resulting in, inter alia, medical expenses, “severe pain and suffering[, ]” “permanent damage[, ]” and “physical and mental personal injuries[.]” Petition, pp.2-3. As such PSC shows that it is “facially apparent” from the Petition that the “claim likely exceeds $75, 000” exclusive of interest and costs [citation omitted] Further, Plaintiff has alleged (and this paragraph repeats) facts “that support a finding of the jurisdictional minimum.” [citation omitted] Consequently, the Petition satisfies the amount in controversy requirement of 28 U.S.C. § 1332(a).[8]

         Plaintiff's Petition contains the following information relevant to the amount in controversy:

Plaintiff alleges that “shifting or rotation” of a “grating caused Plaintiff's leg to slip into the hot condensate that was under the grating. This caused severe pain and suffering and permanent damage to Plaintiff's leg. Plaintiff was transported to the hospital a [sic] result of this incident and received further medical treatment related to the incident after this day.”[9] Plaintiff also alleges that Defendants' negligence “caused severe physical and mental personal injuries” to Plaintiff, “including permanent scarring.”[10] In connection with these injuries, Plaintiff seeks the following categories of damages: past and future loss of earnings; past and future hospital, medical and drug expenses; past and future physical therapy and other medical expenses; physical and mental pain and suffering, as well as loss of enjoyment of life, permanent scarring, other damages, and legal interest and costs.[11]

         Other than Plaintiff's general allegations of “severe pain and suffering and permanent damage” and “permanent scarring” to his leg, Plaintiff did not provide any information regarding the nature or extent of the injuries Plaintiff allegedly sustained as a 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 neither the Petition nor the Notice of Removal established that the requisite amount in controversy was met, on January 14, 2019, the undersigned sua sponte ordered PSC to file a memorandum and supporting evidence regarding amount in controversy.[13] On January 24, 2019, PSC filed its Memorandum in Support of Removal (“SMJ Memorandum”) addressing the amount in controversy in compliance with the Court's January 14, 2019 Order.[14] On February 4, 2019, Plaintiff responded with the instant Motion, seeking remand of this matter to state court, [15] which PSC opposes.[16]

         II. 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.”[17] 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.”[18] Remand is proper if at any time the court lacks subject matter jurisdiction.[19] 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.[20]

         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.”[21] 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].”[22] In Louisiana state court, plaintiffs are generally prohibited from alleging a specific monetary amount of damages sought in their petitions.[23]

         The burden of proof is on the removing defendant to establish that the amount in controversy has been satisfied.[24] 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.[25] 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.[26] The jurisdictional facts that support removal must be judged at the time of removal.[27]

         Since it is undisputed that the parties are of diverse citizenship, [28] 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

         The undersigned previously determined that it was not facially apparent from the Petition that the amount in controversy is likely to exceed $75, 000, which was the reason for the January 14, 2019 sua sponte order.[29] In particular, Plaintiff's Petition only asserts boilerplate damages and provides a limited description of Plaintiff's injuries, [30] which fail to establish that Plaintiff's damages in this case will likely exceed $75, 000, exclusive of interest and costs.[31] PSC argues that “reading [Plaintiff's] well-pled allegations together, Weeden asserts that he suffered a severe burn necessitating more than a year of medical treatment (including physical therapy) and lost wages through the date of filing and into the future, ” and “[Plaintiff] remains in pain, ”[32] such that this Court can make a “common sense inference” that this suit involves a claim for more than $75, 000.[33] However, PSC's argument fails on two grounds. First, the Petition does not assert that Plaintiff suffered a “severe burn”[34] “necessitating more than a year of medical treatment” and for which Plaintiff “remains in pain.” At most, Plaintiff alleges that he was transported to the hospital the day of the Accident and received medical treatment related to the Accident after that day (though not necessarily for an entire year), [35] and Plaintiff only generally seeks past and future lost wages and medical expenses over some unspecified time, [36] which are boilerplate categories of damages that are not sufficient to establish the amount in controversy.[37]

         Second, PSC has not offered any record evidence to support a “common sense inference” that the amount in controversy is met. PSC's lack of evidence renders PSC's authority, Robertson v. Exxon Mobil Corp., [38] factually distinguishable. While the Robertson court noted that the removing parties' burden of proving the amount in controversy “does not mean that the removing party cannot ask the court to make common-sense inferences about the amount put at stake by the injuries the plaintiffs claim, ” the Robertson court did not find that the amount in controversy was facially apparent from the plaintiff's petition. Rather, the Robertson court found that the removing defendants satisfied their burden of establishing the amount in controversy based on the introduction of summary judgment type evidence, i.e., the plaintiff's interrogatory responses, which included a chart that detailed each plaintiff's claimed damages. The court held that “common sense dictates” that the ailments alleged in the chart, e.g., wrongful death of a spouse from lung cancer and prostate cancer, among other ailments, “place more than $75, 000 at stake.”[39] Thus, Robertson does not stand for the proposition that the amount in controversy is facially apparent from Plaintiff's Petition.[40]

         Despite PSC's argument to the contrary, Plaintiff's general allegations of damages and nonspecific descriptions of injuries are exactly the type of “vague” allegations of injuries and damages that do not satisfy the facially apparent test, which leaves only the question of whether PSC has established by a preponderance of the evidence that the amount in controversy is met.

         C. PSC Has Not Met Its Burden of Establishing by a Preponderance that the Amount in Controversy Likely Exceeds $75, 000, Exclusive of Interest and Costs

         PSC's only additional evidence submitted regarding the amount in controversy is a proposed stipulation and affidavit PSC sent to Plaintiff, [41] wherein Plaintiff could stipulate and attest that his claims are below the jurisdictional threshold.[42] Plaintiff refused to execute the proposed affidavit and stipulation.[43] As previously stated by this Court, a refusal to stipulate is only one factor to consider:

Plaintiff did not have a legal obligation to sign such a stipulation “and, therefore, [her] refusal to do so cannot [alone] be considered proof by a preponderance of the evidence that the case is worth more than $75, 000.” Such a refusal “is but one factor for the court to consider.” …. (“While not conclusive, the court does afford some weight to Plaintiff's refusal to stipulate.”). The weight to be provided a refusal to stipulate to the amount of damages is questionable. … Given the record in this action, Plaintiff's refusal to stipulate to the amount ...

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