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Trahan v. Hayes

United States District Court, E.D. Louisiana

December 3, 2019

MICHAEL TRAHAN
v.
SAMUEL HAYES, PRIMORIS ENERGY SERVICES CORPORATION, AND LIBERTY MUTUAL INSURANCE COMPANY

         SECTION "B"(2)

          ORDER AND REASONS

         Plaintiff filed a motion to remand, alleging the removal of the case was untimely. Rec. Doc. 4. Defendant timely filed a response in opposition. Rec. Doc. 9. For the reasons discussed below, IT IS ORDERED that the motion to remand is DENIED.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff filed a complaint against defendants Samuel Hayes (“Hayes”), Primoris Energy Services Corporation and Liberty Mutual Insurance Company in Orleans Civil District Court for injuries resulting from a motor vehicle collision on April 16, 2018. Rec. Doc. 1-2 at 1. Plaintiff alleges that defendant Samuel Hayes' fault and negligence in operating the vehicle caused the collision, and that Hayes was in the course and scope of his employment with Primoris Energy Services Corporation at the time of the accident. Rec. Doc. 1-2 at 2. Defendants filed their answers in state court, denying plaintiff's allegations and asserting that any damages plaintiff may have sustained were the result of plaintiff's own fault. Rec. Doc. 1-2 at 22-24. A pretrial scheduling conference was set before Judge Christopher Bruno at Orleans Civil District Court for October 30, 2019. Rec Doc. 1-2 at 46. Defendants filed a notice of removal on September 27, 2019 on the basis of diversity jurisdiction. Rec. Doc. 1. Defendants asserted that the parties had diverse citizenship and the amount in controversy exceeded the $75, 000 minimum amount, based on a physician's recent recommendation that plaintiff undergo C5-6, C6-7 anterior cervical discectomy and fusion which has an estimated cost of $53, 656. Id. at 3.

         Plaintiff filed the instant motion to remand claiming that defendants' removal notice was procedurally deficient because it was untimely. Rec. Doc. 4-1. Defendants filed a response in opposition stating that their notice of removal was timely filed within 30 days of the point at which it became clear that plaintiff's claims met the minimum threshold for diversity jurisdiction. Rec. Doc. 9.

         LAW AND ANALYSIS

         District Courts have original jurisdiction, called diversity jurisdiction, over all civil actions where the matter in controversy exceeds $75, 000 and is between citizens of different states. 28 U.S.C. §1332(a). If a civil action over which the district courts of the United States have original jurisdiction is brought in a State Court, it “may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). Defendants must file a notice of removal pursuant to 28 U.S.C. §1446. Generally,

“[t]he notice of a removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, ”

28 U.S.C. § 1446(b)(1).

         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, through service or otherwise, of a copy 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).

         The removing party bears the burden of showing that removal was proper, and any ambiguities are to be strictly construed in favor of remand. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir. 2002).

         The issue before the Court in this case is a “timeliness dispute” rather than an “amount dispute.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 398 (5th Cir. 2013). That is, parties do not disagree as to whether the amount in controversy has been met but rather, plaintiff argues that the defendants have missed the deadline for removal and is therefore barred from removing. Id. As stated above, § 1446(b)(1) states that generally notice of removal shall be filed within 30 days of receipt by the defendant of the initial pleading. However, the Fifth Circuit has held the thirty-day clock is only triggered by the initial pleading if it “affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount.” Chapman v. Powermatic, Inc.,969 F.2d 160, 163 (5th Cir. 1992). When state laws prohibit plaintiffs from pleading unliquidated damage amounts, as is the case in Louisiana, the Fifth Circuit has held that a plaintiff should place “in the initial pleading a specific allegation that damages are in excess of the federal jurisdictional amount” if she wishes the thirty-day time period ...


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