Gallin v. Tyson Foods, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CLIFTON GALLIN CIVIL ACTION

VERSUS No. 19-10070

TYSON FOODS, INC. ET AL SECTION I

ORDER & REASONS

Before the Court is plaintiff Clifton Gallin’s (“Gallin”) motion1 to remand the

above-captioned matter to the Civil District Court for the Parish of Orleans, State of

Louisiana. Defendants Tyson Foods, Inc. and Tyson Sales and Distribution, Inc.,

(together, “Tyson”), as well as Ace American Insurance Company, and Terry Randall

(“Randall”) (collectively, “defendants”), removed the above-captioned matter to this

Court alleging diversity jurisdiction.2 Defendants filed a response in opposition3 and

a supplemental response in opposition4 to Gallin’s motion to remand. For the

following reasons, the motion is granted.

I.

The Court is familiar with the facts of this case, as it is the second time this

Court is faced with a motion to remand the underlying state court action. See Gallin

v. Tyson Foods, et al., No. 18-10134, R. Doc. No. 17. In his petition, Gallin alleges

that on or about September 20, 2017, he was driving east on Interstate 10, at or near

1 R. Doc. No. 10.

2 R. Doc. No. 1.

3 R. Doc. No. 13.

4 R. Doc. No. 17.

the Interstate 610 approach in the Parish of Orleans, State of Louisiana, when his

vehicle was struck by a freight tractor.5 Gallin alleges that the freight tractor was

owned by Tyson and operated by Randall.6 On September 18, 2018, Gallin filed his

state lawsuit to recover damages allegedly caused by Randall’s negligence.7

Gallin alleges that, at the time of the accident, Randall was operating the

freight tractor in the course and scope of his employment with Tyson.8 According to

Gallin, Tyson allowed an “untrained, unskilled and careless driver” to operate its

freight tractor and failed to properly instruct its employee how to operate the vehicle.9

Gallin sued Ace American Insurance Company as the insurer of Randall and Tyson.10

Defendants removed Gallin’s lawsuit, for a second time, on May 3, 2019.11

Defendants assert that this Court has subject matter jurisdiction pursuant to 28

5 R. Doc. No. 1-2, at 2 ¶ III.

6 R. Doc. No. 1-2, at 2 ¶ III.

7 See R. Doc. No. 1-2.

8 R. Doc. No. 1-2, at 3 ¶ VI.

9 R. Doc. No. 1-2, at 3 ¶ VIII.

10 R. Doc. No. 1-2, at 4 ¶ XI.

11 See generally R. Doc. No. 1. Defendants first removed the underlying state court

action to this Court on October 30, 2018, which this Court remanded for lack of

subject matter jurisdiction. Gallin v. Tyson Foods, et al., No. 18-10134, R. Doc. No.

17. Specifically, the Court found that diversity jurisdiction did not exist because

defendants could not prove that the amount in controversy exceeded $75,000,

exclusive of interest and costs. Id.

Defendants have removed this action a second time, arguing, in part, that Gallin’s

counsel admitted at an April 26, 2019 state court hearing that the amount in

controversy exceeds $75,000, exclusive of interest and costs. R. Doc. No. 1, at 4 ¶ V.

Defendants attached a transcript of the April 26, 2019 hearing to their notice of

removal, which they assert demonstrates Gallin’s admission that the amount in

controversy exceeds $75,000. R. Doc. No. 1-14, at 8. Assuming, without deciding, that

the Court could consider such transcript and that it is not procedurally prevented

from doing so, the Court is not at all convinced that Gallin admitted that the amount

U.S.C. § 1332 because the parties are diverse and the amount in controversy exceeds

$75,000, exclusive of interest and costs.12

Gallin filed the present motion to remand asserting that the amount in

controversy does not exceed $75,000 exclusive of interest and costs.13 Gallin does not

dispute diversity of citizenship. Gallin attached to his motion to remand an

irrevocable stipulation, wherein he asserts that damages in the state court action are

less than $75,000 and that he “affirmatively renounces and waives entitlement to the

right to accept or enforce a judgment in excess of $75,000.”14 Defendants oppose

Gallin’s motion to remand arguing that his post-removal stipulation was

inappropriately filed in the state court matter and that Gallin’s medical records

demonstrate that the amount in controversy exceeds $75,000.15

II.

“The district courts shall have original jurisdiction of all civil actions where the

matter in controversy exceeds the sum or value of $75,000, exclusive of interest and

costs, and is between citizens of different states . . . .” 28 U.S.C. § 1332(a)(1). Under

28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district

in controversy exceeds $75,000. Instead, it understands Gallin’s counsel’s statement

to mean that he was certain defendants would remove this action again.

12 R. Doc. No. 1, at 5–8, ¶¶ VI–XX.

13 R. Doc. No. 10-1, at 2.

14 R. Doc. Nos. 10-2–10-3.

15 R. Doc. No. 13, at 7; R. Doc. No. 17, at 1. Gallin provided defendants with his initial

disclosures on June 4, 2019, the day after defendants timely filed their opposition to

Gallin’s motion to remand. R. Doc. Nos. 17-1–17-5. Thereafter, the Court granted

defendants leave to file a supplemental opposition to the motion to remand, which

attached medical records included in Gallin’s initial disclosures. R. Doc. Nos. 16–17.

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,” unless Congress

provides otherwise. Jurisdictional facts supporting removal are assessed at the time

of removal. Louisiana v. Am. Nat’l Prop. Cas. Co., 746 F.3d 633, 636–37 (5th Cir.

2014).

The removing defendant or defendants must file a notice of removal pursuant

to 28 U.S.C. § 1446. “The removing party bears the burden of establishing both the

existence of federal subject-matter jurisdiction and the propriety of removal.” Smith

v. Bank of America Corp., 605 F. App’x 311, 313 (5th Cir. 2015) (citing Manguno v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)).

Courts generally consult the state court petition to establish the amount in

controversy; “[h]owever, Louisiana prohibits plaintiffs from petitioning for a specific

monetary amount.” Manguno, 276 F.3d at 723 (citing La. Civ. Code art. 893(A)(1)).

“Therefore, where, as here, the petition does not include a specific monetary demand,

[defendants] must establish by a preponderance of the evidence that the amount in

controversy exceeds $75,000.” Id. (citing De Aguilar v. Boeing Co., 47 F.3d 1404, 1412

(5th Cir. 1995)). “This requirement is met if (1) it is apparent from the face of the

petition that the claims are likely to exceed $75,000, or, alternatively, (2) the

defendant sets forth ‘summary judgment type evidence’ of facts in controversy that

support a finding of the requisite amount.” Id. (citations omitted).

Once the defendant has met his burden, the plaintiff can only defeat

jurisdiction by “showing to a ‘legal certainty’ that the amount in controversy does not

exceed $75,000.” Grant v. Chevron Phillips Chem. Co., 309 F.3d 864, 869 (5th Cir.

2002) (quoting De Aguilar, 47 F.3d at 1412).16 “A plaintiff’s post-removal affidavit or

stipulation offered for this purpose may be considered in limited circumstances.”

Bienemy v. Hertz Corp., No. 16-15413, 2016 WL 6994200, at *2 (E.D. La. Nov. 30,

2016) (Morgan, J.). “While post-removal affidavits may be considered in determining

the amount in controversy at the time of removal, such affidavits may be considered

only if the basis for jurisdiction is ambiguous at the time of removal.” Gebbia v. Wal-

Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). However, if “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.” Bienemy, 2016 WL 6994200, at *2 (citing Gebbia,

233 F.3d at 883).

“Any ambiguities are construed against removal because the removal statute

should be strictly construed in favor of remand.” Manguno, 276 F.3d at 723 (citing

Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)). “The Court has great

discretion in determining whether the jurisdictional amount has been satisfied.”

Omega Hosp., LLC v. Comm. Ins. Co., 14-2264, 2014 WL 6640312, at *3 (E.D. La.

16 The Fifth Circuit has emphasized that this analysis is not a burden-shifting

exercise. Grant, 290 F.3d at 869. “[R]ather, ‘the plaintiff must make all information

known at the time he files the complaint.’” Id. (quoting De Aguilar, 47 F.3d at 1412).

Nov. 21, 2014) (Barbier, J.) (citing Foret v. S. Farm Bureau Life Ins. Co., 918 F.2d

534, 537 (5th Cir. 1990).

III.

As previously stated, the parties do not dispute that complete diversity exists,

so the Court need only determine whether the amount in controversy exceeds

$75,000, exclusive of interest and costs, to satisfy the requirements of § 1332.

With respect to Gallin’s first motion to remand, this Court previously noted

that it is not facially apparent from Gallin’s state court petition that the amount in

controversy exceeds $75,000. Gallin v. Tyson Foods, et al., No. 18-10134, R. Doc. No.

17, at 6–8. In his state court petition, Gallin alleges that the “sudden, unexpected,

and violent blow of the collision” caused him severe and painful injuries, namely past,

present, and future medical expenses; past, present, and future pain and suffering

and loss of function; past, present, and future mental anguish and emotional distress;

past and future lost wages and diminished earning capacity; special care and services;

loss of enjoyment of life; and permanent partial disability.17 This Court held:

Although “the types of damages alleged by [Gallin]

generally assist in establishing the amount in controversy

require[d] by § 1332, such allegations alone,

unaccompanied by pertinent factual detail, ‘simply

provide[ ] the usual and customary damages set forth by

personal injury plaintiffs and do[ ] not provide the Court

with any guidance as to the actual monetary amount of

damages [Gallin has] or will incur.’” Maze [Protective Ins.

Co., No. 16-15424], 2017 WL 164420, at *4 [(E.D. La. Jan.

17, 2017) (Engelhardt, J.)] (alterations in original in part).

Thus, the Court finds that it is not facially apparent from

17 R. Doc. No. 1-2, at 3–4 ¶¶ IX–X.

Gallin’s petition that his alleged damages exceed $75,000,

exclusive of interest and costs.18

Therefore, defendants must present summary judgment type evidence of the

facts in controversy to support a finding of the jurisdictional amount. See Simon v.

Wal-Mart Stores, Inc., 193 F.3d 848, 851 (5th Cir. 1999) (“[The defendant] was faced

with a complaint that described damages inadequately to support removal,” and

“therefore had an affirmative burden to produce information, through factual

allegations or an affidavit, sufficient to show ‘by a preponderance of the evidence that

the amount in controversy exceed[ed] $75,000.’”) (quoting Luckett v. Delta Airlines,

Inc., 171 F.3d 295, 298 (5th Cir. 1999)); Allen v. R & H Oil & Gas Co., 63 F.3d 1326,

1335 (5th Cir. 1995) (“[T]he jurisdictional facts that support removal must be judged

at the time of the removal, and any post-[removal] [discovery responses] are allowable

only if relevant to that period of time.”). Defendants’ evidence in support of the

amount in controversy pre-dates removal.

In their supplemental response in opposition to the instant motion to remand,

defendants attach medical records, which include Gallin’s medical evaluations from

multiple doctors and medical bills.19 Specifically, K. E. Vogel, M.D., in December

2017, approximately three months after the accident, explained that Gallin had been

following conservative care, he had continued to work, the pain was intractable, and

18 Gallin v. Tyson Foods, et al., No. 18-10134, R. Doc. No. 17, at 8 (alterations in

original in part).

19 R. Doc. Nos. 17-2–17-5.

he was a “surgical candidate pending test results.”20 Dr. Vogel did not definitively

conclude that Gallin had herniated discs.21

Donald D. Dietze, Jr., M.D., in February 2019, noted that Gallin has cervical

and lumbar disc herniations and he recommended that Gallin either have a cervical

disc replacement or undergo cervical spinal injections.22 Recommending cervical

surgery, Dr. Dietze noted Gallin’s persistent symptoms and lack of healing.23 Dr.

Dietze’s report notes that a follow-up meeting, to discuss cervical injections and

cervical surgery, was “to be determined.”24 Dr. Dietze noted that Gallin’s lumbar disc

herniation was essentially “unchanged” and that not much was discussed about that

with Gallin.25

Finally, Najeeb M. Thomas, M.D., evaluated Gallin in April 2019.26 Dr.

Thomas noted that Gallin was in pain, his pain had gotten worse, and that Gallin

tried physical therapy, but that he had not had any injections.27 Dr. Thomas’s

impression was that Gallin has cervical and lumbar radicular syndrome.28 After

viewing Gallin’s MRI, Dr. Thomas determined that Gallin has a herniated disc in his

lumbar spine.29 Dr. Thomas did not note a herniated disc in Gallin’s cervical spine,

20 R. Doc. No. 17-2, at 1–2 (emphasis added).

21 See R. Doc. No. 17-2.

22 R. Doc. No. 17-3, at 2.

23 R. Doc. No. 17-3, at 2.

24 R. Doc. No. 17-3, at 2.

25 R. Doc. No. 17-3, at 2.

26 See R. Doc. No. 17-4.

27 R. Doc. No. 17-4, at 1.

28 R. Doc. No. 17-4, at 2.

29 R. Doc. No. 17-4, at 2.

but noted Gallin’s previous cervical fusion and stated that disc osteophytes were

compressing Gallin’s cervical spine at the C5-6 level and that he also had compression

at the 4-5 and 6-7 levels.30 Dr. Thomas placed Gallin on a treatment plan that

included epidural steroid injections for his cervical and thoracic spine and he

recommended a follow-up visit.31 No surgery recommendation was made.

Defendants’ submissions also show that Gallin has incurred $20,181 in medical

expenses.32 All of the diagnoses, recommendations, and medical costs were made or

incurred before defendants filed their notice of removal. Defendants assert that based

on Gallin’s doctors’ recommendations, ongoing treatment plans, and medical records,

his damages exceed $75,000.33

Courts conduct a highly fact-specific inquiry when determining whether a

plaintiff’s damages exceed the jurisdictional threshold, especially when the plaintiff

has a herniated disc, among other alleged injuries.34 Although other sections of this

court have often held that unoperated herniated discs do not meet the jurisdictional

minimum, the Court notes that such findings certainly do not amount to a rule in this

district as each case appears to be fact specific.

30 R. Doc. No. 17-4, at 2.

31 R. Doc. No. 17-4, at 2. Dr. Thomas was also “going to obtain a bilateral S1

transforaminal epidural steroid injection with Dr. Martinez.” Id.

32 R. Doc. No. 17-5.

33 R. Doc. No. 17, at 2.

34 See McCain v. Winn-Dixie Montgomery, LLC, No. 16-1546, 2016 WL 2908418 (E.D.

La. May 19, 2016); Arnold v. Lowe’s Home Ctrs., Inc., No. 10-4454, 2011 WL 976512

(E.D La. Mar. 6, 2011); Espadron v. State Farm Mut. Auto. Ins. Co., No. 10-53, 2010

WL 3168417, at *3 (E.D. La. Aug. 9, 2010) (Zainey, J.); Anderson v. Great West Cas.

Co., No. 09-7716, 2010 WL 420572, at *1 (E.D. La. Jan. 29, 2010).

While the record includes Gallin’s medical diagnoses and various

recommendations for future treatment, it is unclear whether Gallin will undergo such

treatment. Dr. Vogel stated that Gallin was a “surgical candidate pending test

results;” Dr. Dietze recommended cervical surgery, although he noted that Gallin

has the alternative option of undergoing injections; and Dr. Thomas did not

recommend surgery. Defendants have not presented any evidence of the

likelihood of such surgery. See Loftin v. Hughes, 14-1608, 2014 WL 3893313, at

*4 (E.D. La. Aug. 7, 2014) (Brown, J.) (“[T]he future treatments suggested by

Plaintiffs’ physicians are only possibilities,” and “[d]efendants provide no

information regarding the likelihood that any Plaintiff will undergo these possible

procedures.”).

The only conclusive evidence defendants have submitted indicating the actual

amount in controversy is the medical expenses that Gallin has incurred, just above

$20,000 and far below the requisite jurisdictional amount. Defendants have

not presented any evidence with respect to the anticipated future costs of

Gallin’s treatment, if such treatment does occur.

“The reality that plaintiffs may recover greater than $75,000 does not suffice

to warrant removal.” Carbajal v. Caskids Oil Operating Co., 05-5966, 2006 WL

1030392, at *2 (E.D. La. Apr. 18, 2006) (Africk, J.) (emphasis added); see also Maze,

2017 WL 164420, at *4 (“[M]erely because a plaintiff’s damages potentially

may exceed $75,000 does not make [ ] such an award appear more likely than

not.”); Buchana v. Wal-Mart Stores, Inc., 99-2783, 1999 WL 1044336, at *4 (E.D.

La. Nov. 17, 1999) (Vance, J.) (“A ‘could well’ standard sounds more like a ‘possibility’

of proof, rather than a ‘more likely than not’ standard.”) (citing Allen, 63 F.3d at

1336).

After considering the parties briefs and the evidence in the record, the Court,

construing all ambiguities in favor of remand, finds that defendants have not shown

by a preponderance of the evidence, i.e., more likely than not, that the amount in

controversy exceeds $75,000 exclusive of interest and costs. Accordingly, remand is

warranted.*5

CONCLUSION

For the foregoing reasons,

IT IS ORDERED that Gallin’s motion for remand is GRANTED and that the

above-captioned matter is REMANDED to the Civil District Court for the Parish

of Orleans, State of Louisiana for lack of subject matter jurisdiction.

New Orleans, Louisiana, June 25, 2019.

UNITED STATES DISTRICT JUDGE

35 Because defendants have not met their burden, the Court need not consider the

propriety of Gallin’s stipulation that the amount in controversy does not exceed

$75,000 exclusive of interest and costs and renouncing his right to accept or enforce

a judgment in excess of $75,000.

11