Valentine v. United Fire and Casualty Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

THOMAS VALENTINE CIVIL ACTION

v. NO. 18-6956

UNITED FIRE AND CASUALTY COMPANY, ET AL. SECTION "F"

ORDER AND REASONS

Before the Court is the issue of subject matter jurisdiction.

Mindful of its “independent obligation to determine whether

subject-matter jurisdiction exists[,]” the Court ordered

simultaneous briefing addressing whether the amount in controversy

prerequisite to diversity jurisdiction is met in this case. See

Arbaugh v. Y&H Corp., 546 U.S. 500, 514, 506-07 (2006)(citation

omitted)(This duty persists throughout all phases of the

litigation, “even after trial and the entry of final judgment.”).

For the reasons that follow, the Court finds that the case must be

remanded for lack of subject matter jurisdiction.

Background

This personal injury lawsuit arises out of an alleged hit and

run accident on November 11, 2017 on Third Street in New Orleans,

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Louisiana, when a Freightliner allegedly struck a parked Ford F150

and left the scene.

B P Excavating & Trucking, Inc., a company owned by Billy

Pounds, was doing demolition work at a construction site at 2113

Third Street in New Orleans on November 11, 2017. Pounds was

leaving the site on Third Street while driving a Freightliner

truck, which his company owned and which was insured by United

Fire and Casualty Company. As Pounds was driving away from the

site, the Freightliner he was driving struck a legally parked and

unoccupied 2003 Nissan. At this same time, Thomas Valentine claims

he was sitting in his 2001 Ford F-150, which was parked “next to”

the unoccupied Nissan, and that the Freightliner hit his parked

truck after hitting the Nissan. Valentine claims that Pounds then

left the scene. Valentine claims he then notified the owner of

the Nissan and called the New Orleans Police Department to

investigate, which they did, arriving to the scene hours later.

Mr. Valentine sued United Fire and Casualty Company, B P

Excavating & Trucking, Inc., and Billy Pounds in state court,

seeking to recover for the damage he says the collision caused to

his truck and his person. He alleged that he “sustained severe

and disabling injuries to his body and mind, including but not

limited to neck, and back” and that he has incurred medical

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expenses. The parties now agree that Valentine does not seek lost

wages or future lost earnings.

The defendants dispute liability, medical causation, and

damages. No witnesses (except Valentine himself) place Valentine

or his truck at the scene. Despite complaints of “severe and

debilitating injuries,” Valentine first sought medical treatment

17 days after the alleged accident presenting to Dr. Ashfaq Qureshi

at Louisiana Primary Care Consultants. He has undergone soft

tissue treatment. Valentine has not been treated since November

15, 2018 for any injuries he allegedly suffered in the accident.

Valentine claims to have incurred $7,650 in medical expenses

related to the accident.

United Fire and Casualty Company removed the lawsuit to this

Court on July 24, 2018, invoking this Court’s diversity

jurisdiction. The plaintiff never moved to remand his case to

state court. After the defendants answered the lawsuit, the Court

conducted a scheduling conference and issued a scheduling order,

selecting a July 25, 2019 pretrial conference date and an August

12, 2019 jury trial date. Discovery has closed, no party has filed

any dispositive motions, and no parties contemplate filing any

motions.

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In the jointly-filed pretrial order proposed by counsel, the

parties submit that the Court has diversity jurisdiction because

the parties are diverse and that “while defendants admits (sic)

neither liability nor any element of damages, the amount in

controversy herein reasonably could exceed $75,000.” During the

pretrial conference, the Court raised the issue of its jurisdiction

and issued an order to show cause as to why this case should not

be remanded due to the absence of diversity jurisdiction for

failure to satisfy the amount in controversy requirement. Mindful

that “[l]itigants cannot bestow subject matter jurisdiction on

federal courts by waiver or consent[,]” Elam v. Kan. City S. Ry.

Co., 635 F.3d 796, 802 (5th Cir. 2011), the Court now considers

whether it has jurisdiction.

I.

A.

The removing defendant carries the burden of showing the

propriety of this Court’s removal jurisdiction. See Manguno v.

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

2002); see also Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815

(5th Cir. 1993). Given the significant federalism concerns

implicated by removal, the removal statute is strictly construed,

“and any doubt about the propriety of removal must be resolved in

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favor of remand.” Gutierrez v. Flores, 543 F.3d 248, 251 (5th

Cir. 2008)(citation omitted); Gasch v. Hartford Accident & Indem.

Co., 491 F.3d 278, 281-82 (5th Cir. 2007)(citations omitted).1

B.

A defendant may generally remove a civil action filed in state

court if the federal court has original jurisdiction over the case

-- that is, if the plaintiff could have brought the action in

federal court from the outset. See 28 U.S.C. § 1441(a). To

exercise diversity jurisdiction, complete diversity must exist

between the plaintiff and all of the properly joined defendants,

and the amount in controversy must exceed $75,000. See 28 U.S.C.

§ 1332(a)(1). The only dispute here is whether the amount-in-

controversy requirement is met.

If the plaintiff alleges a specific dollar amount in his state

court pleading, the amount pled “controls in good faith.” Allen

v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). But, in

Louisiana, the law forbids a plaintiff from including a “specific

amount of damages” in his prayer for relief. La. Code Civ. Proc.

1 Cf. Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81,

135 S. Ct. 547, 554 (2014)(“We need not here decide whether ... a

presumption [against removal] is proper in mine-run diversity

cases. It suffices to point out that no antiremoval presumption

attends cases invoking CAFA[.]”).

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art. 893.2 Consistent with Louisiana law, Valentine’s state court

petition does not seek a specific sum of damages. Where, as here,

the plaintiff has alleged an indeterminate amount of damages, the

removing party must prove by a preponderance of the evidence that

the amount in controversy exceeds $75,000. Simon v. Wal-Mart

Stores, 193 F.3d 848, 850 (5th Cir. 1999); see also De Aguilar v.

Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). This showing may

be made by either (1) showing that it is facially apparent that

the plaintiff’s claims likely exceed $75,000, or (2) setting forth

“summary judgment type evidence” of facts in controversy that

support a finding of the jurisdictional amount. Manguno, 276 F.3d

at 723; Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th

Cir. 1999). “[I]f it is facially apparent from the petition that

the amount in controversy exceeds $75,000 at the time of removal,

post-removal affidavits, stipulations, and amendments reducing the

amount do not deprive the district court of jurisdiction.” Gebbia

v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000).

However, if the petition is ambiguous as to whether the alleged

damages surpass the jurisdictional amount in controversy, the

Court may consider a post-removal affidavit that clarifies the

2 But, “if a specific amount of damages is necessary to

establish...the lack of jurisdiction of federal courts[,]” then “a

general allegation that the claim...is less than the requisite

amount is required.” Id.

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original complaint. Asociación Nacional de Pescadores a Pequeña

Escala O Artesanales de Colombia (ANPAC) v. Dow Química de

Colombia, 988 F.2d 559, 565 (5th Cir. 1993), abrogated on other

grounds by Marathon Oil Co. v. Ruhgras, 145 F.3d 211, 214 (5th

Cir. 1998), rev’d on other grounds, 526 U.S. 574 (1999). If the

removing defendant cannot show that the amount in controversy is

facially apparent, it must “set[] forth the facts in controversy

– preferably in the removal petition, but sometimes by affidavit

– that support a finding of the requisite amount.” Luckett, 171

F.3d at 298.

If the removing party satisfies its burden, the plaintiff can

only defeat removal by showing that it is “legally certain that

his recovery will not exceed the amount stated in the state

complaint.” De Aguilar, 47 F.3d at 1412; see St. Paul Mercury

Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) (“It must

appear to a legal certainty that the claim is really for less than

the jurisdictional amount to justify dismissal [or remand].”).

Thus, absent a statute that restricts recovery, “[l]itigants who

want to prevent removal must file a binding stipulation or

affidavit with their complaints; once a defendant has removed the

case, St. Paul makes later filings irrelevant.” De Aguilar, 47

F.3d at 1412 (quoting In re Shell Oil Co., 970 F.2d 355, 356 (7th

Cir. 1992) (per curiam)).

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To resolve an amount-in-controversy dispute, the Court must

consider the allegations in the state court petition as they

existed at the time of removal. See Manguno, 276 F.3d at 723

(citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256,

264 (5th Cir. 1995)); Louisiana v. American Nat’l Prop. Cas. Co.,

746 F.3d 633, 636-37 (5th Cir. 2014)(citations omitted)

(“jurisdictional facts are determined at the time of removal, and

consequently post-removal events do not affect that properly

established jurisdiction”).

II.

A.

It is not facially apparent from the state court petition

that the plaintiff’s damages exceed the jurisdictional minimum

amount of $75,000, exclusive of interest and costs. In the

petition, the plaintiff alleges that he was sitting in his parked

car when the defendants’ vehicle “violently rammed into

Petitioner’s vehicle and the vehicle next to causing damage to

Petitioner’s property, mind and body.” Valentine alleges that he

suffered “severe and disabling injuries to his body and mind

including, but not limited to neck, and back.” He goes on to list

generic, boilerplate categories of damages. The vague, formulaic

allegations in the petition do not suggest the severity of

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Valentine’s injuries, whether he was hospitalized, or whether any

treatment or surgery was recommended. Conclusory allegations

devoid of factual content simply fail to indicate what amount might

be in controversy. See Michael v. Blackhawk Transport, Inc., No.

19-193, 2019 WL 549610, at *2 (E.D. La. Feb. 11, 2019)(Africk,

J.). The face of the state court petition thus offers no guidance

as to the actual monetary amount of damages Valentine has or will

incur. See id. (citations omitted).3

B.

Because it is not facially apparent from the petition that

the plaintiff’s damages exceed $75,000, the Court considers

whether the removing defendants have met their burden of submitting

facts in controversy that support a finding that the plaintiff’s

damages likely exceed $75,000. They have not.

3 See, e.g., Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850-52

(5th Cir. 1999) (not “facially apparent” that damages would exceed

$75,000 because “complaint alleged, with little specificity,

damages from less severe physical injuries . . . and did not allege

any damages for loss of property, emergency transportation,

hospital stays, specific types of medical treatment, emotional

distress, functional impairments, or disability”); Johnson v.

Petsmart, Inc., No. 16-3448, 2017 WL 360265 (E.D. La. Jan. 25,

2017) (jurisdictional amount in controversy not facially apparent

where plaintiff’s petition alleged “injuries to his ‘neck, back,

head, and other parts of his body’” and claimed “damages for pain

and suffering, mental anguish, and loss of enjoyment of life, and

medical expenses”). Categories without substance do not inform

quantum.

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The defendants advance three arguments to support their

contention that the amount in controversy “could reasonably exceed

$75,000.” First, the defendants point to the plaintiff’s

allegations that he sustained “severe and disabling injuries”

coupled with medical records indicating that the plaintiff

underwent CT scans and was seen by doctors recommending “selective

injections” to relieve neck and back pain. Second, the defendants

urge the Court to consider the amount Valentine has incurred in

medical costs, $7,650, in the context of examples from case

literature in which plaintiffs who suffered back, neck, and other

injuries recovered more than $75,000. Third, the defendants note

that the plaintiff has not filed a binding stipulation or affidavit

renouncing his right to accept a judgment exceeding $75,000. The

defendants’ submission simply falls short of satisfying their

preponderance burden.

First, sifting through the medical records submitted by the

defendants, the Court fails to appreciate how the various ailments

referenced are causally linked to the alleged accident -- for

example, the medical records indicate ailments ranging from the

presence of bullet fragments to “generalized moderately advanced

degenerative cervical disc disease” -- or how Valentine’s

prognosis or prescription of conservative treatment might bear on

the quantum at stake in this particular litigation.

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Second, the Louisiana personal injury cases invoked by the

defendant do not advance the jurisdictional inquiry here. In the

cases cited, the plaintiffs were awarded more than $75,000 for

injuries of varying nature and extent; in three of the four cases

invoked by the defendants, surgery was recommended. This sampling

does little more than suggest that certain categories of personal

injury damages could potentially result in a damage award exceeding

$75,000. But, like the plaintiff’s boilerplate damage allegations

in his state court petition, the defendants fail to show how the

damage awards issued after a trial on the merits inform the

jurisdictional inquiry on quantum here. See Betemps v. Dolgencorp,

LLC, No. 16-17647, 2017 WL 3327980, at *3 (E.D. La. Aug. 4,

2017)(Brown, C.J.)(“other damage[] awards based on highly

individualized facts and determined after trial on the merits are

insufficient to establish that, based on the jurisdictional facts

that existed here at the time of removal, subject matter

jurisdiction exists.”). Speculation regarding general damages

that the plaintiff could recover is insufficient to establish

subject matter jurisdiction.

Considering the medical records submitted and the

distinguishable cases invoked by the defendants, the Court finds

that the defendants have failed to satisfy their preponderance

burden by setting forth facts in controversy that support a finding

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of the requisite amount in controversy. The Court underscores

that the preponderance standard governs this inquiry. See Allen

v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)(district

court erred in concluding that damages “could well” exceed the

jurisdictional threshold).4

Finally, that the plaintiff has not filed a binding

stipulation renouncing his right to accept a judgment exceeding

$75,000 is not a determinative factor in deciding whether remand

is appropriate. The absence of a binding stipulation does not

obviate the defendants’ burden of proof: only if the defendants

satisfy their preponderance burden does the plaintiff become

obliged to show as a matter of law that he will not be able to

recover damages greater than the jurisdictional threshold. See

Richey v. Wal-Mart Stores, Inc., 390 Fed.Appx. 375, 379 (5th Cir.

2010)(citing De Aguilar, 47 F.3d 1404 at 1411). At best, the

plaintiff’s failure to file into the record a binding renunciation

4 Here, the defendants submit that the amount in controversy “could

reasonably exceed $75,000.” But imposing a preponderance burden

means that the removing defendants must show more than that the

plaintiff could recover more than $75,000. See De Augilar, 47

F.3d at 1411 (“The preponderance burden forces the defendant to do

more than point to a state law that might allow the plaintiff to

recover more than what is pled.”). The defendants’ iteration

resembles the “could well” standard the court in Allen rejected as

“more like a ‘possibility’ standard of proof.” Allen, 63 F.3d at

1335.

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is but one of several factors to consider in determining whether

the jurisdictional amount in controversy requirement is met. See

Franklin v. Tom Hassel Transport, Inc., No. 19-2228, 2019 WL

2755093, at *3 (E.D. La. July 2, 2019)(Milazzo, J.)(citations

omitted).

Given that the defendants have failed to show by a

preponderance of the evidence that the amount in controversy

exceeds $75,000, IT IS ORDERED: that this case is hereby remanded

to Civil District Court for the Parish of Orleans.

New Orleans, Louisiana, August Ist, 2019

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ue C. ° FELDMAN

UNITED STATES DISTRICT JUDGE

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