# Franklin v. Tom Hassel Transport, Inc.

> District Court, E.D. Louisiana · July 2, 2019

URL: https://www.frixlaw.com/law-library/cases/10184632

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** July 2, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10184632

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

WAYNE FRANKLIN, SR. CIVIL ACTION

VERSUS NO: 19-2228

TOM HASSEL TRANSPORT, INC., ET AL. SECTION: “H”

ORDER AND REASONS
Before the Court is Plaintiff’s Motion to Remand (Doc. 6). For the
following reasons, the Motion is GRANTED.

BACKGROUND
This personal injury suit arises out of a motor vehicle accident that
occurred on May 15, 2018 in Orleans Parish. The accident was between
Plaintiff Wayne Franklin Sr. and Defendant Nathaniel McDaniel. At the time
of the accident, Defendant McDaniel was allegedly acting within the course
and scope of his employment with Defendant Tom Hassel Transport, Inc.,
which is insured by Defendant National Interstate Insurance Company
(“National”).
On March 10, 2019, Defendant National removed Plaintiff’s suit to this
Court on diversity grounds. On April 9, 2019, Plaintiff filed the instant Motion
to Remand arguing that diversity jurisdiction does not exist because the
amount in controversy does not exceed $75,000.1 Defendants oppose.2

LEGAL STANDARD
Generally, a defendant may remove a civil state court action to federal
court if the federal court has original jurisdiction over the action.3 The burden
is on the removing party to show “that federal jurisdiction exists and that
removal was proper.”4 When determining whether federal jurisdiction exists,
courts consider “the claims in the state court petition as they existed at the
time of removal.”5 District courts must “strictly construe” the removal statute,
“and any doubt about the propriety of removal must be resolved in favor of
remand.”6 “If at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be remanded.”7

LAW AND ANALYSIS
Federal diversity jurisdiction exists when no plaintiff has the same
citizenship as any defendant—complete diversity—and the “amount in
controversy” exceeds $75,000.8 Here, the parties agree that complete diversity
exists; they disagree about whether the amount in controversy requirement
has been met.

1 Doc. 6.
2 Doc. 7.
3 28 U.S.C. § 1441.
4 Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013) (quoting Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir. 2002)).
5 Pullman v. Jenkins, 305 U.S. 534, 537 (1939); Manguno, 276 F.3d at 723.
6 Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281–82 (5th Cir. 2007).
7 28 U.S.C. § 1447(c).
8 See 28 U.S.C. § 1332(a); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (citing Strawbridge
v. Curtiss, 7 U.S. 267, 267(1806)).
“Generally, the amount of damages sought in [a plaintiff’s state court]
petition constitutes the amount in controversy, so long as the pleading was
made in good faith.”9 Here, Plaintiff’s petition does not seek a specific sum of
damages. That’s because Louisiana law prohibits plaintiffs in personal injury
suits from alleging a “specific monetary amount of damages.”10 Accordingly,
Plaintiff’s petition alleges generalized damages for past, present and future
pain and suffering, medical expenses, lost wages, and any other damages
which may be proven at trial.11
In cases where a plaintiff does not plead a specific amount of monetary
damages, there are two ways a defendant can show that the amount in
controversy has been met. Under the first, a defendant need only point to the
petition itself if it is “facially apparent” that the amount in controversy has
been met.12 If, however, it is not facially apparent from the petition that the
amount in controversy has been met, the defendant must produce summary
judgment type evidence to show that the amount in controversy is greater than
$75,000.13
I. Facially Apparent Standard
It is not “facially apparent” from a Complaint that the amount in
controversy is more than $75,000 when a plaintiff’s allegations fail to describe
a plaintiff’s injuries in more than boilerplate terms.14 “[S]uch allegations alone,
unaccompanied by pertinent factual detail, ‘simply provide the usual and
customary damages set forth by personal injury plaintiffs and do not provide

9 Thompson v. Acceptance Indem. Ins. Co., No. 14-1424, 2014 WL 7369733, at *3 (E.D. La.
Dec. 29, 2014) (Brown, J.).
10 LA. CODE CIV. PROC. 893(A)(1).
11 Doc. 1-2 at 4.
12 Manguno, 276 F.3d at 723.
13 Id.
14 Touchet v. Union Oil Co. of California, No. 01-2394, 2002 WL 465167, at *2 (E.D. La. Mar.
26, 2002) (Sear, J.).
the Court with any guidance as to the actual monetary amount of damages the
plaintiff has or will incur.’”15
Here, Plaintiff’s Complaint does not assert any specific injury that would
indicate that the amount in controversy has been met.16 He merely alleges that
he suffered “severe and debilitating injuries” as a result of the accident.17 As
such, it is not facially apparent from Plaintiff’s Complaint that the amount in
controversy is above $75,000.
II. Summary Judgement Evidence
“[T]he removing defendant must prove by a preponderance of the
evidence that the amount in controversy exceeds $75,000.”18 “An uncertainty
or contingency concerning the amount of damages does not satisfy the
defendant’s burden of proving the amount in controversy.”19
Here, Defendants have shown that Plaintiff has incurred $15,235 in
medical bills.20 Defendants also point to an MRI report describing how plaintiff
suffered annular fissures at lumbar discs at the L3/4 and L4/5 levels.21 What
Defendants have not introduced is any evidence to show that Plaintiff will
suffer future damages or a loss in earning capacity. Furthermore, the MRI
report reflects mostly minor injuries as a result of the accident in question.22
Defendants nevertheless attempt to prove the amount in controversy is
more than $75,000 by citing to several decisions from Louisiana state courts

15 Michael v. Blackhawk Transport, Inc., No. 19-193, 2019 WL 549610, at *2 (E.D. La. Feb.
12, 2019) (Africk, J.) (quoting Maze v. Protective Ins. Co., No. 16-15424, 2017 WL 164420,
at *4 (E.D. La. Jan. 17, 2017) (Engelhardt, J.)).
16 See Doc. 1-2 at 4.
17 Id. 2.
18 Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
19 Ingram v. Global Hawk Ins. Co., No. 14-CV-0777, 2014 WL 2739459, at *4 (E.D. La. June
17, 2014) (Berrigan, J.).
20 Doc. 1-5 at 2-3.
21 Id.
22 Id. at 7.
where other plaintiffs have been awarded damages over $75,000 for allegedly
similar injuries. This is insufficient to establish subject matter jurisdiction.23
These damages are highly individualized awards that are decided after a trial
on the merits.24 A defendant must show more than that a plaintiff could
recover more than the jurisdictional amount.25
Defendants also raise two other arguments in an attempt to show that
the amount in controversy is above $75,000. Defendants first point to
Plaintiff’s belated response to a request that Plaintiff admit the amount in
controversy is above $75,000. As an initial matter, the Fifth Circuit has
established that “[l]itigants cannot bestow subject matter jurisdiction on
federal courts by waiver or consent.”26 Another section of this Court has held
that a “plaintiff’s failure to answer a request for admission” is insufficient to
“support this Court’s subject matter jurisdiction alone because it represents
another form of the parties consent to jurisdiction which is not allowed.”27
This Court recognizes that a failure to timely respond to a request for
admissions results in the statement being deemed “admitted” under Louisiana
law.28 Such admissions, however, are only one factor a court may consider
when determining whether the amount in controversy is sufficient to support

23 See Betemps v. Dolgencorp, No. 19-17647, 2017 WL 3327980, at *3 (E.D. La. 2017) (Brown,
J.) (remanding where the defendant did not submit any evidence of future medical
treatments anticipated at the time of removal or any evidence regarding the value of
plaintiff’s other requests for damages, such as loss of enjoyment of life, mental anguish and
anxiety, and loss of earnings).
24 Id. at *3.
25 See De Aguilar v. Boeing Co., 47 F.3d 1404, 1411 (5th Cir. 1995).
26 Elam v. Kan. City S. Ry. Co., 635 F.3d 796, 802 (5th Cir. 2011).
27 Jones v. AAA Club Family Ins. Co., No. 07-6988, 2007 WL 4365443, at *1 (E. D. La. Dec.
10, 2007) (Berrigan, J.); see Ingram, 2014 WL 2739459, at *4–5 (holding that plaintiff’s
equivocal response to the defendant’s request for admission was insufficient to establish
that the amount in controversy requirement was met).
28 See LA. C.C.P. art. 1467.
federal jurisdiction.29 Here, Plaintiff belatedly denied Defendants’ request for
an admission that the amount in controversy is above $75,000.30 Such a belated
denial is sufficient to create ambiguity regarding the amount in controversy.
Defendant nevertheless cites to Gayden v. Winn-Dixie Montgomery, Inc.
for the proposition that a failure to respond to a request for admissions results
in the plaintiff admitting that the amount in controversy has been met, making
removal proper.31 The issue in Gayden, however, was not whether the amount
in controversy had been met, but whether removal was timely.32 Because the
Court did not engage in a detailed analysis regarding the amount in
controversy, it is unclear how heavily the Court relied on the plaintiff’s failure
to timely respond to a request for admissions in determining that the amount
in controversy was above $75,000. Thus, the Court does not find Gayden
helpful for determining the issue at hand.
In another effort to show that Plaintiff has effectively waived subject
matter jurisdiction in this case, Defendants point to Plaintiff’s refusal to
stipulate that the amount in controversy is less than $75,000.33 But a
“[p]laintiff’s failure to file such a stipulation (or otherwise admit that the
amount in controversy is lower than the jurisdictional minimum) does not
alleviate defendants’ burden of proof.”34 “[F]ailure to stipulate is only one factor
in determining whether a defendant has met his burden, and it alone will not
defeat a plaintiff’s motion to remand.”35

29 See Ingram, 2014 WL 2739459, at *4-5.
30 Doc. 1-5 at 4.
31 No. 13-6232, 2014 WL 433503 (E.D. La. Feb. 4, 2014) (Vance, J.).
32 Id. at *3.
33 Doc. 1 at 6.
34 Ingram, 2014 WL 2739459, at *5.
35 Carbajal v. Caskids Oil Operating Co., No. 05-5966, 2006 WL 1030392, at *3 (E.D. La. Apr.
28, 2006) (Africk, J.).
All told, Defendant has produced little evidence regarding Plaintiffs
injuries and potential damages. Defendant’s focus on Plaintiffs untimely
response to a request for admissions and Plaintiffs refusal to stipulate are
insufficient to overcome this dearth of evidence. Accordingly, Defendant has
failed to prove by a preponderance of the evidence that the amount in
controversy exceeds $75,000. Therefore, this Court lacks subject matter
jurisdiction, and it must remand the case to state court.

CONCLUSION
For the foregoing reasons, Plaintiffs Motion to Remand is GRANTED,
and the case is REMANDED to state court.

New Orleans, Louisiana this 2nd day of July, 2019.

G TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10184632. Public record. Not legal advice.