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Barra v. Rayborn Trucking

United States District Court, E.D. Louisiana

December 16, 2019

EBEN BARRA, Plaintiff

         SECTION: “E” (3)



         Before the Court is a motion to remand filed by Plaintiff Eben Barra.[1] Defendants filed an opposition to the motion.[2] For the following reasons, Plaintiff's motion to remand is GRANTED.


         This case arises out of an automobile accident that occurred on August 21, 2017, in Orleans Parish, Louisiana.[3] On that date, Plaintiff claims a truck struck his car while he was driving on Old Gentilly Road.[4] The truck was operated by Defendant Kenneth Downs, owned by Defendants Mary Rayborn and Rayborn Trucking, and insured by Defendant Canal Insurance Co.[5] On August 2, 2018, Plaintiff filed suit against Defendants in the Civil District Court for the Parish of Orleans.[6]

         In his state-court petition for damages, Plaintiff alleged that, as a result of this accident, he suffered “severe and debilitating injuries.”[7] Plaintiff sought damages for pain and suffering, lost wages, medical expenses, and all other damages.[8] Plaintiff alleged, in an unverified petition, these damages did not exceed $75, 000, [9] but he did not execute a binding declaration that the damages were under $75, 000, as would be necessary to definitively preclude federal jurisdiction.[10] After Plaintiff initiated this suit, Defendants propounded interrogatories and requests for production to Plaintiff.[11] On February 27, 2019, Plaintiff provided answers to Defendants' interrogatories and requests for production, [12] and in response to Defendants' requests for production, Plaintiff produced, among other things, his medical bills and records related to the injuries he allegedly sustained in the accident.[13]

         Plaintiff was interviewed by a life care planner on February 19, 2019.[14] Counsel for Plaintiff represents that, between August 23 and 27, 2019, Plaintiff received the report dated August 23, 2019, recommending a Life Care Plan (the “Plan”) totaling $957, 642.72 for treatment of the injuries Plaintiff allegedly sustained as a result of the accident.[15] On September 23, 2019, one month after Plaintiff received the Plan, Plaintiff produced the Plan to Defendants.[16] On October 23, 2019, Defendants removed the case to this Court based on diversity.[17] On November 20, 2019, Plaintiff filed the instant motion to remand.[18]


         Federal courts are courts of limited jurisdiction and possess only the authority conferred upon them by the United States Constitution or by Congress.[19] Federal law allows for state civil suits to be removed to federal courts in certain instances. Generally, removal jurisdiction is governed by 28 U.S.C. § 1441(a), which provides:

Except as otherwise expressly provided by [an] Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.[20]

         “The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.”[21] When removal is based on federal diversity jurisdiction, the removing party must show that (1) complete diversity of citizenship exists between the parties, and (2) the amount in controversy exceeds $75, 000.00, exclusive of interest and costs[22] “The jurisdictional facts supporting removal are examined as of the time of removal.”[23] “Ambiguities are construed against removal and in favor of remand because statutes allowing removal are to be strictly construed.”[24]

         The Fifth Circuit has “established a clear analytical framework for resolving disputes concerning the amount in controversy for actions removed from Louisiana state courts pursuant to 1332(a)(1).”[25] Because Louisiana law prohibits state-court plaintiffs from claiming a specific amount of damages, [26] the removing defendant must establish by a preponderance of the evidence that the amount in controversy exceeds the $75, 000.00 jurisdictional amount at the time of removal.[27] The removing defendant may meet its burden in one of two ways, either (1) by demonstrating that it was “facially apparent” from the allegations of the state court petition that the amount in controversy exceeded the $75, 000.00 jurisdictional threshold, or (2) by offering “summary-judgment type evidence” of facts in controversy, which support a finding that the requisite amount is in controversy.[28]

         Even if the removing defendant meets its burden in either of these ways, a plaintiff can defeat removal by showing, to a legal certainty, that its recovery will be less than $75, 000.00.[29] A plaintiff's post-removal affidavit or stipulation offered for this purpose may be considered in limited circumstances. If the amount in controversy is not facially apparent from the allegations in the state court petition and, in fact, is ambiguous at the time of removal, the court may consider a post-removal affidavit or stipulation to assess the amount in controversy as of the date of removal.[30] If, on the other hand, the amount in controversy is clear from the face of the state court petition, post-removal affidavits or stipulations that purport to reduce the amount of damages a plaintiff seeks cannot deprive the court of jurisdiction.[31]

         In this case, the parties agree they are completely diverse, and it is now clear the amount in controversy exceeds $75, 000 dollars. The parties disagree, however, as to whether Defendants' notice of removal was timely.


         The timeliness of removal is generally governed by 28 U.S.C. § 1446(b), which provides:

The notice of 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, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. . . .
Except as provided in subsection (c), 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.

         In short, a defendant must file a notice of removal within 30 days of receiving the initial complaint, [32] or, “if the case stated by the initial pleading is not removable, ” within 30 days of receiving a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is removable.[33]

         In any event, pursuant to § 1446(c)(1), a defendant may not remove a case if it has been more than one year since the suit commenced, unless the defendant shows the plaintiff acted in bad faith to prevent removal.[34] Section 1446(c)(1) provides: “A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” “This rule is commonly called the ‘one-year bar.'”[35]

         In this case, Defendants admit they removed this case more than one-year after the suit was filed in state court, [36] but they contend the notice of removal is timely on two bases: first, because they filed it within thirty days of receiving the Plan-which they argue is the paper that first made them aware the amount in controversy exceeded $75, 000- and second, because Plaintiff's failure to disclose the Plan until after the one-year time period for removal was in bad faith.[37] Plaintiff asserts Defendants' notice of removal is untimely because Defendants filed it more than one year after Plaintiff initiated the state-court action, and Defendants failed to show Plaintiff engaged in any bad faith actions to prevent removal.

         It is clear a case may not be removed under the thirty-day rule of subsection (b)(3) if more than one year has passed after commencement of the action.[38] As a result, Defendants, as the removing party, must rely on the Plaintiff's disclosure of the Plan after the one-year time period to show removal is proper based on Plaintiff's bad faith.[39]

         In determining whether a plaintiff has acted in bad faith to prevent removal, “the question is what motivated the plaintiff in the past-that is, whether the plaintiff's litigation conduct was meant ‘to prevent a defendant from removing the action.'”[40]In Hoyt v. Lane Construction Corp., the Fifth Circuit affirmed a lower court's decision that the plaintiffs in that case acted in bad faith by dismissing a nondiverse defendant just two days after the one-year removal deadline expired and for doing so without receiving any consideration in return for the dismissal.[41] The record in Hoyt showed the plaintiffs knew the evidence would not support a claim against the nondiverse defendant, but they still “half-heartedly” pursued their claims against that defendant, waited until the one-year limit expired, and then dismissed the defendant “for free.”[42] Because the plaintiffs failed to explain why the settlement and dismissal occurred just two days after the deadline expired, the Fifth Circuit found it was not clear error for the district court to conclude the plaintiffs acted in bad faith to prevent removal.[43]

         In National MGA Insurance Alliance, Inc. v. Illinois Mutual Life Insurance Co., a plaintiff increased the amount in controversy to more than $75, 000 by adding a new cause of action to the complaint after the one-year bar had passed.[44] The District Court for the Western District of Texas distinguished this case from Hoyt and found there was no bad faith because the plaintiff's conduct occurred nearly two years after the commencement of the action, and ten months after the expiration of the one-year deadline.[45] The Court found this was not like “the suspicious timing in Hoyt, ” and instead “suggest[ed] something other than the one-year removal deadline motivated Plaintiff to amend.[46]

         In this case, Defendants argue Plaintiff engaged in bad faith conduct by not disclosing his interview by the life care planner until after the one-year bar, even though the meeting occurred on February 19, 2019, almost six months before the one-year bar passed. To support this argument, Defendants point primarily to three of Plaintiff's February 27, 2019 answers to interrogatories.

         Interrogatory number three asked Plaintiff to identify “all doctors, chiropractors, clinics, physical therapists, counselors, or other persons who have examined you or rendered medical or mental health treatment to you” relating to the accident.[47] Plaintiff responded by identifying his four doctors, but he did not include the names of the life care planner.[48] The Court finds this was a correct and truthful response. The life care planner is not a doctor, chiropractor, clinic, physical therapist, counselor, or other person who examined Plaintiff or rendered medical or mental health treatment to him.[49]

         Interrogatory number five asked Plaintiff to describe what further medical treatments he was contemplating or that had been recommended to him.[50] Plaintiff responded by disclosing that he did not have any surgery or interventional treatment currently scheduled but that he had a follow-up appointment scheduled with Dr. Domangue.[51] This was a truthful and forthcoming response. The life care planner did not, and was not qualified to, recommend treatment to the Plaintiff or provide treatment to him. In fact, the Plan states that, “This report is not for release to patient or family and is intended for professional use only.”[52] It is clear the life care planner was not making treatment recommendations or scheduling appointments for the Plaintiff.

         Interrogatory number sixteen asked Plaintiff to list any lay or expert witnesses he may call.[53] Plaintiff objected to this interrogatory as premature.[54] Plaintiff's objection was well founded. At the time Plaintiff answered the interrogatories, Plaintiff had not yet propounded discovery to Defendants, no depositions had been taken, the state court had not issued a scheduling order, and no motion for a scheduling conference had been filed.[55] Under Louisiana law, the trial court, upon contradictory motion or on the Court's own motion, may enter an order requiring the disclosure of expert reports and setting the date and sequence of disclosure.[56] As Plaintiff puts it, objecting to an interrogatory like interrogatory number sixteen “is a standard, frequently used reply when posed with such a request or question, so early in the discovery process.”[57] Defendants had not filed a contradictory ...

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