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White v. Lonestar Dedicated, LLC

United States District Court, E.D. Louisiana

August 15, 2019


         SECTION: “J” (3)



         Before the Court is a Motion to Remand (Rec. Doc. 5) filed by Plaintiff, Reginald White. Defendants, American Millennium Insurance Company and Lonestar Dedicated, LLC (collectively “Moving Defendants”) filed an opposition (Rec. Doc. 12). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds the motion should be DENIED.


         This case arises from an automobile accident that occurred on November 3, 2017 in East Baton Rouge Parish. On that date, Plaintiff was operating an 18-wheeler while in the course and scope of his employment with United Parcel Service when he was rear-ended by an 18-wheeler operated by Defendant Alexei Hernandez (“Hernandez”). Plaintiff alleges that Hernandez was operating the vehicle while in the course and scope of his employment with Defendant Lonestar Dedicated, LLC (“Lonestar”). He asserts that automobile coverage for the vehicle operated by Hernandez was provided by Defendant American Millennium Insurance Company (“AMIC”).

         On October 3, 2018, Plaintiff filed suit in Civil District Court for the Parish of Orleans, alleging general and special damages. On November 8, 2018, Plaintiff sent a demand letter to a claims adjuster for AMIC. Plaintiff alleges that the demand to settle the case for over $625, 000 summarized the opinions and recommendations of Plaintiff's treating physicians and was accompanied by medical records. On or about December 3, 2018, AMIC's claims adjuster responded to Plaintiff's demand with a counteroffer of $21, 250 based on her review of the records provided with the settlement demand. Specifically, Moving Defendants assert that it appeared to the claims adjuster that Plaintiff's injuries involved an exacerbation of pre-existing soft tissue injuries and further investigation into prior losses was required to resolve the matter. Accordingly, on January 17, 2019, AMIC propounded discovery requests to Plaintiff to clarify the amount in controversy. On January 31, 2019, Moving Defendants received Plaintiff's answers to AMIC's Request for Admissions, wherein Plaintiff “admitted” that his complained-of damages exceed the sum or value of $75, 000, exclusive of interest and costs. The instant action was removed to this Court on February 25, 2019.[1] Plaintiff now seeks an order remanding the action to state court on grounds that the notice of removal was untimely and violated the rule of unanimity.


         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a) (2011). “A federal district court has subject matter jurisdiction over a state claim when the amount in controversy is met and there is complete diversity of citizenship between the parties.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing 28 U.S.C. § 1332(a)). The amount in controversy required by § 1332(a) is currently $75, 000. Id. The court considers the jurisdictional facts that support removal as of the time of removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). Because removal raises significant federalism concerns, any doubt about the propriety of removal must be resolved in favor of remand. Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).


         I. Whether the Notice of Removal was Untimely

         It is undisputed that the requirements of diversity jurisdiction are met in the instant case. The parties are diverse and the amount in controversy exceeds $75, 000, exclusive of interest and costs. Rather, Plaintiff urges the Court to remand the instant matter on the basis of two procedural errors in removal, the first being that the Notice of Removal was untimely.

         Pursuant to 28 U.S.C. § 1446(b)(1), a defendant ordinarily has 30 days from receipt of the initial pleading to file a notice of removal. However, if “the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant … of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). Plaintiff acknowledges that his original petition was not removable because it asserted only that the amount in controversy exceeded $50, 000. (See Rec. Doc. 5-1 at 6). However, he argues that Moving Defendants knew the case was removable as early as November 8, 2018, when Plaintiff sent a formal written settlement demand and offer to settle all claims for $626, 212.61 to AMIC's claims adjuster. (Rec. Doc. 5-1 at 7). Plaintiff asserts that Moving Defendants “acknowledged their knowledge [that the instant matter exceeded the requisite amount] on December 3, 2018, when [AMIC's claims adjuster] wrote to undersigned counsel that ‘if we are unable to settle reasonably…we would be asking [defense counsel] to file a motion to change venue to Federal Court.” (Rec. Doc. 5-1 at 8). Given that removal pleadings were not filed until February 25, 2019, Plaintiff argues that removal was untimely. (Rec. Doc. 5-1 at 8).

         Moving Defendants argue in opposition that the Notice of Removal was timely because the 30-day time period for removal did not commence until Plaintiff provided answers to AMIC's Request for Admissions on January 31, 2019, as the answers constituted “the first other paper containing information ‘unequivocally clear and certain' that more than $75, 000 is in controversy.” (Rec. Doc. 12 at 6). Specifically, Moving Defendants assert that the information contained in Plaintiff's one-page settlement demand dated November 8, 2018 was not sufficient to justify removal under the Fifth Circuit's standard given that “Plaintiff's counsel submitted an inflated demand of $626, 212.61, without any cited jurisprudence or authority in support thereof.” (Rec. Doc. 12 at 7-10). Moving Defendants emphasize that AMIC's claims adjuster presented a counteroffer of settlement in the amount of $21, 250 because the information provided by Plaintiff demonstrated that there are significant issues with medical causation. (Rec. Doc. 12 at 10). Accordingly, Moving Defendants argue that they did not have unequivocally clear and certain information that the case was removable until receipt of Plaintiff's admission that his complained-of damages exceed $75, 000 on January 31, 2019. (Rec. Doc. 12 at 11).

         The Fifth Circuit has explained that “the information supporting removal in a copy of an amended pleading, motion, order or other paper must be ‘unequivocally clear and certain' to start the time limit running for a notice of removal under the second paragraph of section 1446(b).” Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002) (emphasis added). “This clearer threshold promotes judicial economy” and “should reduce ‘protective' removals by defendants faced with an equivocal record.” Id. Acknowledging that the word “ascertain” means “to make certain, exact, or precise” or “to find out or learn with certainty, ” the Fifth Circuit has indicated that § 1446(b)(3) “seems to require a greater level of certainty or that the facts supporting removability be stated unequivocally, ” in contrast with § 1446(b)(1), which “encompasses a ...

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