Opinion

Turner v. Indian Harbor Insurance Company

Court
District Court, E.D. Louisiana
Filed
May 28, 2020
Cited by
0 cases
Authority
More cited than 22.3%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

IVAN M. TURNER CIVIL ACTION

VERSUS NO. 20-1096

INDIAN HARBOR INSURANCE CO., SECTION “R” (4)

ET AL.

ORDER AND REASONS

Before the Court is plaintiff Ivan Turner’s motion to remand this

matter to state court.1 Because defendant has not established that the

amount in controversy is over $75,000, the Court grants the motion to

remand.

I. BACKGROUND

This case arises from a car accident. Plaintiff Ivan Turner alleges that

he was driving on A.P. Tureaud Avenue when a car driven by Nelly Garcia

made an improper left turn and struck his vehicle, causing him injury.2

Plaintiff filed a petition for damages for personal injuries in Louisiana state

court against Garcia and her insurers Indian Harbor Insurance Company

1 R. Doc. 8.

2 See R. Doc. 1-1 at 1 ¶ 2.

and Metropolitan Direct Property and Casualty Insurance Company.3

Plaintiff alleged various damages, including past, present, and future pain

and suffering, mental anguish, and medical expenses.4 Plaintiff is a citizen

of Mississippi, while Indian Harbor is a citizen of Delaware, Metropolitan

Direct is citizen of Rhode Island, and Garcia is a citizen of Louisiana.5

Defendant Indian Harbor removed plaintiff’s suit to this Court on the

basis of diversity jurisdiction.6 Plaintiff now moves to remand the matter

back to state court.7

II. LEGAL STANDARD

A defendant may generally remove a civil action filed in state court if

the federal court has original jurisdiction over the action. See 28 U.S.C.

§ 1441(a). “[T]he removing party bears the burden of . . . show[ing] that

federal jurisdiction exists.” See Allen v. R & H Oil & Gas Co., 63 F.3d 1326,

1335 (5th Cir. 1995). And “[t]he jurisdictional facts that support removal

must be judged at the time of removal.” Gebbia v. Wal-Mart Stores, Inc.,

233 F.3d 880, 883 (5th Cir. 2000). In assessing whether removal is

3 See generally R. Doc. 1-1.

4 Id. at 3 ¶ 11.

5 See R. Doc. 1 at 2 ¶¶ IV-VII.

6 R. Doc. 1.

7 R. Doc. 8.

appropriate, the Court is guided by the principle that “the removal statute

should be strictly construed in favor of remand,” see Manguno v. Prudential

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

courts are courts of limited jurisdiction. “If at any time before final judgment

it appears that the district court lacks subject matter jurisdiction,” the Court

must remand the case to state court. 28 U.S.C. § 1447(c).

Federal courts have original jurisdiction in diversity actions. See 28

U.S.C. § 1332(a). For diversity jurisdiction to exist, there must be complete

diversity between plaintiffs and defendants, and the amount in controversy

must exceed $75,000. See id.; Owen Equip. & Erection Co. v. Kroger, 437

U.S. 365, 373 (1978).

Under Fifth Circuit law, a removing defendant’s burden of showing

that the amount in controversy is sufficient to support federal jurisdiction

differs depending on whether the plaintiff’s complaint alleges a specific

amount of monetary damages. See Allen, 63 F.3d at 1335. “Where the

plaintiff has alleged a sum certain that exceeds the requisite amount in

controversy, that amount controls if made in good faith.” Id. (citing St. Paul

Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)). On the other

hand, “if a plaintiff pleads damages less than the jurisdiction amount,” this

figure will also generally control, thereby barring removal. See id. “Thus, in

the typical diversity case, the plaintiff remains the master of his complaint.”

Id.

Under Louisiana law, though, a plaintiff ordinarily cannot plead a

specific amount of damages. See La. Code Civ. P. art. 893(A)(1); Manguno,

276 F.3d at 723. Rather, a plaintiff is permitted to make only “a general

allegation that the claim exceeds or is less than” a particular amount, if

making such an allegation is “necessary to establish the jurisdiction of [a]

court . . . [or] the lack of jurisdiction of federal courts due to insufficiency of

damages.” La. Civ. Code. P. art. 893(A)(1). When the plaintiff has alleged an

indeterminate amount of damages, the Fifth Circuit requires that “the

removing defendant must prove by a preponderance of the evidence that the

amount in controversy exceeds $75,000.” Gebbia, 233 F.3d at 882; see also

De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).

A defendant satisfies this burden either by showing that it is “facially

apparent” that the plaintiff’s claims exceed the jurisdictional amount, or by

“setting forth the facts in controversy . . . that support a finding of the

requisite amount.” Allen, 63 F.3d at 1335 (emphasis omitted). “[W]here the

district court is making the ‘facially apparent’ determination, the proper

procedure is to look only at the face of the complaint and ask whether the

amount in controversy was likely to exceed [$75,000].” Id. at 1336. If “the

facially apparent test is not met,” the Court may then consider “summary-

judgment-type evidence, relevant to the amount in controversy at the time

of removal.” See id.

If the defendant meets its burden of showing the requisite amount in

controversy, the plaintiff can defeat removal only by establishing with legal

certainty that the claims are for less than $75,000. See De Aguilar, 47 F.3d

at 1412. Absent a statute limiting 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, . . . later filings [are] irrelevant.” Id.

(first alteration in original) (quoting In re Shell Oil Co., 970 F.2d 355, 356

(7th Cir. 1992)); see also id. at 1412 n.10 (“The general principle is that

plaintiffs will have to show that they are bound irrevocably by their state

pleadings in these situations.”).

III. DISCUSSION

As required by Louisiana law, plaintiff’s petition does not allege a

specific amount of damages. The removing defendant therefore must prove

by a preponderance of the evidence that the amount in controversy exceeds

$75,000. Gebbia, 233 F.3d at 882.

The Court first looks to the face of the complaint to determine whether

the amount in controversy is facially apparent. Plaintiff alleges that he

suffered “personal injuries,” and does not describe the nature or extent of

these injuries.8 He seeks compensation for “[p]ast, present, and future

physical pain and suffering, . . . [p]ast, present and future metal anguish,”

and “[p]ast, present, and future medical expenses.”9 He also seeks

compensation for “[l]oss of enjoyment of life, . . . [r]ental car expenses,” and

“[a]ny and all other damages that may be proved at the trial of these

matters.”10 Plaintiff does not provide any specific information as to the

nature of his injuries, the medical treatment required, the medical expenses

incurred, or the pain and suffering endured. Nor does he allege that he was

hospitalized or requires surgery.

Consequently, the Court finds that plaintiff’s allegations are “plain

vanilla,” and thus it is not facially apparent that the amount in controversy

requirement is satisfied. Indeed, numerous cases have found that the

amount in controversy requirement was not facially apparent from the

complaint, even where the plaintiffs described their injuries in more detail

than Turner did here. See, e.g., Jupiter v. Lowe’s Home Ctrs., Inc., No. 12-

8 R. Doc. 1-1 at 2 ¶ 9.

9 See id. at 2 ¶ 11.

10 See id.

895, 2012 WL 2878639, at *2 (E.D. La. July 13, 2012) (finding complaint

containing “vanilla” allegations that plaintiff had suffered knee injuries

necessitating surgery and sought damages for “loss of enjoyment of life;

physical disability, pain and suffering; past and future mental pain and

suffering; disruption of bodily tissues and cells; and past, present, and future

medical expenses” insufficient for providing notice that amount in

controversy exceeded $75,000); see also Carr v. Nationwide Corp., No. 19-

13389, 2020 WL 1041609, at *3 (E.D. La. Mar. 4, 2020) (collecting cases).

Indian Harbor resists this conclusion by pointing out that plaintiff

requested a jury trial,11 which is available only where a petitioner’s cause of

damages exceeds $50,000. See La. Code Civ. P. art. 1732(1). But while this

is a factor that may be considered by the Court in determining whether the

amount in controversy exceeds $75,000, it is not controlling. See, e.g.,

Brown v. Richard, No. 00-1982, 2000 WL 1653835, at *4 (E.D. La. Nov. 2,

2000); Gaitor v. Penisular & Occidental S.S. Co., 287 F.2d 252 (5th Cir.

1961). In Peninsular, the Fifth Circuit declined to construe a complaint filed

in Florida state court demanding damages “in excess of $5,000 .00” as also

exceeding the sum of $10,000, the amount then necessary for federal

11 See R. Doc. 1-1 at 1 ¶ 3 (“Pursuant to Louisiana Code of Civil Procedure

article 893, the petitioner states that his individual damages exceed the

specific amount of damages necessary to establish the right to a jury trial.”).

jurisdiction for diversity cases. See id. at 254. The Court likewise finds that

asserting a jury demand, which requires a claim for at least $50,000, does

not automatically mean the claim is for at least $75,000. Plaintiff’s jury

demand is not sufficient to establish that the amount in controversy is at least

$75,000, particularly given plaintiff’s unadorned allegation of “personal

injuries.”12

Because the amount in controversy is not facially apparent from the

complaint, the Court may consider summary judgment-type evidence to

determine whether the amount in controversy requirement is met. See Allen,

63 F.3d at 1335. Here, the only evidence Indian Harbor puts forth is that

plaintiff did not respond to a request to stipulate that his damages would be

less than $75,000.13 Again, although a plaintiff’s refusal to stipulate to

damage below $75,000 is a factor the Court may consider, it is not a

determinative factor in deciding a motion to remand. See Carbajal v.

Caskids Oil Operating Co., No. 05-5966, 2006 WL 1030392, at *3 (E.D. La.

Apr. 28, 2006) (“[A] failure to stipulate is only one factor to consider in

determining whether a defendant has met its burden, and it alone will not

defeat a plaintiff’s motion to remand.”). While Turner’s refusal to stipulate

12 R. Doc. 1-1 at 2 ¶ 9.

13 R. Doc. 10-1 at 2.

is some evidence to support plaintiffs position, without more it is not

sufficient to show by a preponderance of the evidence that the amount in

controversy exceeds $75,000. Indian Harbor therefore fails to carry its

burden to establish the amount in controversy above $75,000, and this case

must be remanded to state court.

Because the Court finds that defendant has not met its burden to show

that the amount in controversy exceeds $75,000, the Court does not reach

plaintiff's argument that all defendants did not properly consent to removal.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS plaintiffs motion to

remand.

New Orleans, Louisiana, this 28th day of May, 2020.

dernk Vaver.

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.