The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MENYUON MILLER CIVIL ACTION
VERSUS NO. 20-2508
TARGET CORPORATION OF MINNESOTA SECTION "B"(2)
ORDER AND REASONS
Before the Court are plaintiff’s motion to remand (Rec. Doc.
5) and defendant’s opposition (Rec. Doc. 6). For the reasons
discussed below,
IT IS ORDERED that the plaintiff’s motion to remand (Rec.
Doc. 5) is GRANTED.
FACTS OF THE CASE AND PROCEDURAL HISTORY
On December 18, 2017, plaintiff Menyuon Miller (“Miller”)
tripped and fell inside defendant Target Corporation of
Minnesota’s (“Target”) store located in Harvey, Louisiana. Rec.
Doc. 5-1 at 1. Plaintiff alleges to have suffered injuries to her
left ankle, hip and lower back as a result of the fall. Id.
On November 5, 2018, plaintiff filed suit in the 24th Judicial
District Court for the Parish of Jefferson, State of Louisiana.
Id. In her complaint, plaintiff alleged that her individual damages
exceeded the specific amount of damages necessary to establish the
right to a jury trial pursuant to Louisiana Code of Civil Procedure
article 893. Rec. Doc. 1-6 at 3. Further, plaintiff alleged her
damages to include past, present and future physical and mental
pain and suffering; past and future medical expenses; lost wages
and loss of earning capacity. Id. at 4.
According to the notice of removal, the allegations set forth
in the state court petition were such that it was not readily
apparent that the action was removable at the time of its filing.
Rec. Doc. 1 at 2. Thus, defendant commenced discovery and served
written interrogatories and requests for documents upon the
plaintiff. Id. at 2-3.
On February 5, 2019, Target received Miller’s answers to
Interrogatories and Responses to Request for Production of
Documents, indicating that plaintiff’s lower back and knee pain
was initially treated with physical therapy and exams through
November 5, 2018. Id. at 3. An MRI of Miller’s lumbar spine
reportedly revealed an L5-S1 torn annulus and herniated disk, and
another MRI of her left knee reportedly showed past meniscus repair
and patellofemoral left knee malalignment. Id. Miller’s answer
further disclosed that she started receiving treatments at
Louisiana Pain Specialist on May 21, 2018 for her back pain. Id.
The assessments revealed that Miller suffered from chronic pain
syndrome, spondylosis with radiculopathy lumbar and osteoarthritis
of her left knee. Id. Miller then asserted that her total damages
amounted to $28,857.76. Id.
According to defendant, on March 13, 2019, Target requested
that Miller admit that the damages arising out of the incident did
not exceed the total sum of $75,000 exclusive of interest and
costs. Id. at 4. On June 12, 2019, plaintiff responded that she
could neither deny nor admit that her damages did not exceed this
amount as discovery and treatment were ongoing. Id.
Two months thereafter, Target avers that it requested from
Miller a settlement demand no less than five times but without
success. Id. Thus, on October 1, 2019, Target served a second
Request for Admissions, asking Miller to once again admit or deny
that the damages complained of did not exceed $75,000. Id.
Plaintiff failed to respond to the second request by the November
1, 2019 deadline, which defendant posits was an admission that
damages did not exceed $75,000 pursuant to Louisiana Code of Civil
Procedure article 1467. Id.
Defendant claims to have requested a settlement demand from
plaintiff on multiple occasions thereafter until it received a
demand dated August 25, 2020 in the amount of $335,691 on August
31, 2020. Id.
On September 14, 2020, Target removed the matter to this
Court, alleging that subject matter jurisdiction exists pursuant
to 28 U.S.C. § 1332. Rec. Doc. 1 at 2. First, defendant asserts
that there is complete diversity between the parties. Id. at 6.
Specifically, defendant is a foreign corporation organized under
the laws of the state of Minnesota with its principal place of
business in Minneapolis, and plaintiff is a resident and
domiciliary of the state of Louisiana. Id. Second, defendant argues
that the matter in controversy exceeds the statutory threshold.
Id. at 8. Defendant further argues that the August 25, 2020 demand
constitutes an “other paper” containing evidence of damages in
excess of $75,000 that permits removal within thirty days of
receipt. Id. at 5.
On October 13, 2020, plaintiff filed a motion to remand,
generally alleging that the defendant did not timely file its
notice of removal. Rec. Doc. 5.
On November 2, 2020, defendant timely filed its opposition,
alleging that plaintiff’s bad faith caused its non-compliance with
the removal deadline. Rec. Doc. 6.
LAW AND ANALYSIS
Federal district courts have original jurisdiction over all
civil actions where the amount in controversy exceeds $75,000 and
complete diversity of citizenship exists between the parties. 28
U.S.C. §1332(a). If a civil action over which a district court has
original jurisdiction is brought in a state court, it “may be
removed by the defendant or defendants, to the district court of
the United States for the district and division embracing the place
where such action is pending.” 28 U.S.C. § 1441(a). A removing
defendant must file a notice of removal pursuant to 28 U.S.C.
§1446.
Generally,
[t]he notice of a 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.
28 U.S.C. § 1446(b)(1). However,
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.
28 U.S.C. § 1446(b)(3)(emphasis added). As such, the removing party
bears the burden of showing that removal was proper, and any
ambiguities are to be strictly construed in favor of remand. See
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722
(5th Cir. 2002).
Where the plaintiff alleges an indeterminate amount of
damages in her complaint, the defendant must prove by a
preponderance of the evidence that the jurisdictional amount is in
excess of $75,000. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848,
850 (5th Cir. 1999). The removing party may do so by either (1)
demonstrating that it is “facially apparent” that the claims are
greater than $75,000 or (2) or by offering evidence that the
requisite amount in controversy is met. Id. (quoting Luckett v.
Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
It is undisputed in the instant matter that complete diversity
exists between the parties. Rather, the main dispute arising from
the pending motion pertains to whether defendant timely removed
this suit.
A. The State Complaint
Ordinarily, if a plaintiff alleges damages in her state
complaint less than the jurisdictional threshold, this sum shall
control and bar removal. Espadron v. State Farm Mut. Auto. Ins.
Co., No. 10-0053, 2010 WL 3168417, at *1 (E.D.La. Aug. 9, 2010).
However, the court’s analysis to determine the controlling amount
in controversy differs “where the relevant complaint originates in
a state that does not bind a plaintiff to the amount of damages
alleged in his complaint.” Id. at *2.
Louisiana is an example of such a state because a final
judgment under Louisiana law may grant relief to the prevailing
party that was not originally requested. Id. (citing La. Code Civ.
Proc. Art. 862). Moreover, Louisiana Code of Civil Procedure
article 893 states, “if a specific amount of damages is necessary
to establish that jurisdiction of the court . . . [or] the lack of
jurisdiction of federal courts due to insufficiency of damages .
. . a general allegation that the claim exceeds or is less than
the requisite amount is required.” La. Civ. Code Civ. Proc. Art.
893. “Therefore, as a matter of law, plaintiffs filing suit in
Louisiana state courts allege an indeterminate amount of damages,
unless they affirmatively renounce their right to recover damages
in excess of $75,000.” Espadron, 2010 WL 3168417, at *1 (citing
Jacobs v. Dun & Bradstreet, Inc., No. 08-3592, 2009 WL 211098, at
*2 (E.D.La. Jan. 27, 2009); Levith v. State Farm Fire & Cas. Co.,
No. 06-2786, 2006 WL 2947906, at *2 (E.D.La. Oct. 11, 2006)).
In Raborn, the court found that the plaintiff’s damages, if
proven, likely exceeded $75,000 based on her initial allegations
of sustaining severe and permanent injuries and her extensive
prayer for relief. Raborn v. Con-Workload, Inc., No. 15-2969, 2015
WL 6738599, at *3 (E.D.La. Nov. 4, 2015).1 Like here, the plaintiff
alleged that damages exceeded the $50,000 threshold to secure a
jury trial in Louisiana. Id. at *2. The court found that
plaintiff’s omission of a denial to stipulate to a sum less than
$75,000 alongside the extensive prayer for damages and pre-
petition settlement letter demanding $256,005 weighed in favor of
denying the motion to remand. Id. at *4.
Plaintiff claims that she sufficiently alleged damages likely
in excess of $50,000 that would have allowed defendant to remove
the matter. Rec. Doc. 5-1 at 2. In her original state complaint,
plaintiff alleges “severe and painful personal injuries” as a
result of the alleged accident. Rec. Doc. 1-6 at 4. Additionally,
1 “Courts in this circuit have consistently held that such prayers for
damages – namely, those for past and future medical expenses, past and
future lost wages, past and future pain and suffering, and past and
future disability – are sufficient to infer the jurisdictional amount
is satisfied.” Id.
Miller itemized her damages to include “past, present and future
physical and mental pain and suffering; medical expenses, past and
future; and lost wages and loss of earning capacity.” Id. Notably,
plaintiff did not explicitly stipulate in her state complaint that
her damages did not exceed $75,000.
Miller’s listed damages in her state complaint do not
establish that they were greater than the jurisdictional
threshold. Unlike the plaintiff in Raborn, the damages as alleged
in the initial pleading alone do not illustrate the supposed
severity of Miller’s injuries that would sustain subject matter
jurisdiction. The general allegation that Miller’s damages likely
exceeded $50,000 in accordance with Art. 893 without elaboration
on the nature and amount of damages sought also does not satisfy
the amount in controversy. Therefore, Miller’s argument that the
state complaint was “clearly removable” is without merit, and
Target’s failure to timely remove the suit after receipt of the
state complaint does not foreclose our analysis.
B. “Other Papers” Demonstrating Removability
If the initial pleading was not removable, 28 U.S.C. § 1446(b)
nevertheless permits the defendant to remove the case beyond the
complaint upon receipt of a document, or “other paper”, indicating
removability. 28 U.S.C. § 1446(b). A 2012 provision to the removal
statute provides that information in discovery responses
demonstrating the amount in controversy shall be treated as an
“other paper”. Ameri v. J.C. Penney Corp., Inc., No. 12-cv-2630,
2012 WL 5866493, at *2 (W.D.La. Nov. 19, 2012)(citing 28 U.S.C. §
1446(c)(3)(A)). A deposition transcript revealing removability may
also be considered “other paper.” S.W.S. Erectors, Inc. v. Infax,
Inc., 72 F.2d 489, 492 (5th Cir. 1996).
The Fifth Circuit has cautioned that the removal standard
applied to other papers “seems to require a greater level of
certainty or that the facts supporting removability be stated
unequivocally.” Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th
Cir. 2002). Further, “[o]ther paper describing injuries and other
damages that seem likely to exceed the amount in controversy
requirement, but which do not show unequivocally that the
requirement is met, are insufficient to trigger the removal clock.”
Darensburg v. NGM Ins. Co., No. 14-1391, 2014 WL 4072128, at *3
(E.D.La. Aug. 13, 2014).
Surgical recommendation for plaintiff’s back injuries can be
a key factor in determining whether there are sufficient damages to
support diversity jurisdiction. Espadron, 2010 WL 3168417 at *3.
For example, in Meeks, the plaintiff attempted to argue that the
defendant should have removed the suit upon receipt of his
medical records. Meeks v. Jazz Casino Co., LLC, No. 19-13238, 2020
WL 359204, at *2 (E.D.La. Jan. 21, 2020)(denying remand). The
records contained the doctor’s diagnosis of a lumbar disc
herniation, lumbar spinal stenosis, lumbar radiculopathy, annular
tear of lumbar disc, lumbar facet arthropathy, cervicalgia, and
cervical radiculopathy and a recommendation for plaintiff to
receive a lumbar epidural injection. Id. The court noted that
surgery was not yet recommended, and the combined medical bills
totaled $12,700. Id. Thus, the court found that this information
was “insufficient to rise to the level of unequivocally clear and
certain evidence.” Id. (internal quotes omitted).
Similarly, in Profit v. IAT Insurance Group, the plaintiff
contended that defendants received sufficient information from her
medical records to ascertain the amount in controversy. Profit v.
IAT Insurance Group, No. 18-10897, 2019 WL 1349846, at *2 (E.D.La.
March 26, 2019)(denying remand). The relevant documents revealed
information about plaintiff’s lower back pain, neck pain, failed
conservative treatment, referral for pain management, referral for
a shoulder MRI, and the doctor’s recommendation to proceed with
cervical epidural steroid injections. Id. Noting that these
records reflected medical bills totaling $11,328.30 without a
surgical recommendation at the time, the court held that it was
not yet “unequivocally clear and certain” that the amount in
controversy exceeded $75,000. Id. The court found that the
jurisdictional minimum was ultimately satisfied by plaintiff’s
subsequent settlement demand in the amount of $225,000, indicating
that plaintiff received surgical recommendation. Id.
Plaintiff’s medical records and response to defendant’s
Interrogatories and Request for Production of Documents on
February 5, 2019 indicated the following:
•
Plaintiff was treated at Advanced Medical Center in Gretna.
•
Plaintiff was referred to and seen by a neurosurgeon at LSU
Healthcare Network who referred plaintiff to another doctor
at Louisiana Pain Specialists for injections.
•
The doctor at Louisiana Pain Specialists performed a lumbar
ESI (epidural steroid injection) and scheduled a second
procedure for July 2018.
•
The lumbar MRI report dated February 12, 2018 indicated, “Left
central to left neural foraminal disc herniatioposterior
central to left central annular fissure/tear, and minor facet
arthropathy on the left at L5- S1 with approximately 33
percent central canal narrowing, especially towards the left,
posterior displacement of the traversing left S1 nerve root,
and 1nodera.te bilateral subarticular canal narrowing and
left neural foraminal narrowing, including contact of the
left more than right exiting L5 nerve roots.”
•
Plaintiff received three more epidural steroid injections
between June 5, 2018 and August 27, 2018.
•
Plaintiff was prescribed oral medication Meloxicam, which is
an anti-inflammatory, and Baclofen for muscle spasms.2
Plaintiff argues that this information was sufficient for
defendant to ascertain that the pending matter was removable per
28 U.S.C. § 1446(b). Rec. Doc. 5-1 at 2-3.
During her February 19, 2020 deposition, plaintiff testified
to the time periods and nature of the steroid injections she
received to her thighs and hips. Rec. Doc. 5-1 at 4. Miller also
testified that she was diagnosed with having a herniated disc, a
sacroiliac joint dysfunction and a trochanteric bursitis. Id.
Lastly, plaintiff confirmed that she would have to receive future
treatment for her injuries. Id. at 5.
In Scott, the court found that removing defendants “are not
held to a due diligence standard” to determine the amount in
controversy based upon a doctor’s characterization of plaintiff’s
injuries and the amount of steroid injections she received. Scott
v. Office Depot, Inc., No. 14-791-JJB-RLB, 2015 WL 2137458, at *5
(M.D.La. May 7, 2015). Although the plaintiff’s discovery
responses and deposition testimony were not “unequivocally clear
and certain” to trigger the removal period, the Scott Court found
that plaintiff’s post-petition settlement demand of $300,000
satisfied the amount in controversy requirement. Id.
2 See Rec. Doc. 5-1 at 2-3.
Miller’s deposition testimony regarding the nature of her
injuries, steroid injections received, past and future treatment,
and medical records, combined with her jury trial threshold
allegations, reasonably show satisfaction with the federal
threshold.
C. Whether Plaintiff Acted in Bad Faith
The Fifth Circuit held that a post-petition settlement demand
requesting damages exceeding the federal jurisdictional minimum is
an “other paper” pursuant to 28 U.S.C. § 1446(b). Addo v. Globe
Life and Acc. Ins. Co., 230 F.3d 759, 762 (5th Cir. 2000).
Defendant argues without opposition that plaintiff’s
settlement demand in the amount of $335,691 qualifies as an “other
paper”, upon which defendant relied to remove the instant suit.
Rec. Doc. 6-6 at 1. However, because the notice of removal was
filed outside the one-year removal period, the parties dispute
whether the notice was timely filed.
When the suit is removed beyond the one-year period, the
removing party is required to not only prove removability but also
the plaintiff’s bad faith in preventing removal during the one-
year period. Rantz v. Shield Coat, Inc., No. 17-3338, 2017 WL
3188415, at *4 (E.D.La. July 26, 2017); see 28 U.S.C. § 1446(c)(1).
A plaintiff’s bad faith can be evidenced by her “deliberate[ ]
fail[ure] to disclose the actual amount in controversy to prevent
removal.” 28 U.S.C. § 1446(c)(1)(B). “Ultimately, the burden of
showing that plaintiff[ ]acted in bad faith to prevent removal
lies with the removing defendant.” Jones v. Ramos Trinidad, 380 F.
Supp. 3d 516, 521 (5th Cir. 2019).
Although the Fifth Circuit held that the Tedford equitable
tolling standard no longer applies to determine a plaintiff’s bad
faith to prevent removal, it has not yet provided a clear standard
under Section 1446(c)(1). See Hoyt v. Lane Constr. Co., 927 F.3d
287, 293 (5th Cir. 2019). Courts have nonetheless tailored their
inquiry “on what motivated the plaintiff in the past and whether
the plaintiff’s litigation conduct was meant to prevent removal.”
TK Trailer Parts, LLC v. Long, No. 4:20-cv-2864, 2020 WL 6747987,
at *5 (S.D.Tex. Nov. 2, 2020)(citing Barra v. Rayborn Trucking,
No. 19-13235, 2019 WL 6838611, at *4 (E.D.La. Dec. 16, 2019)).
Target alleges bad faith on Miller’s part based on her failure
to admit the amount in controversy to the two requests for
admission, effectively admitting that the amount in controversy
was less than the permitted jurisdictional amount, and seeking
damages in excess of federal jurisdiction after the removal period
had passed. Rec. Doc. 6 at 11.
Louisiana Code of Civil Procedure article 1467 provides that
a request for admission that goes unanswered after fifteen days of
service will be deemed admitted. See La. Code Civ. Proc. Art.
1467(A). Under such a scenario, courts have acknowledged that an
unanswered request would render the statement admitted, but “such
admissions are only one factor a court may consider when
determining whether the amount in controversy is sufficient to
support federal jurisdiction.” DeJean v. Mars Wrigley
Confectionery, No. 20-623-SDD-EWD, 2020 WL 5900137, at *2 (M.D.La.
Oct. 5, 2020)(citing Jones v. AAA Club Family Ins. Co., No. 07-
6988, 2007 WL 4365443, at *1 (E.D.La. Dec. 10, 2007)(“[Plaintiff’s]
failure to answer [request for admission] cannot support this
Court’s subject matter jurisdiction alone because it represents
another form of the parties’ consent to jurisdiction, which is not
allowed.”)). This is in accordance with the jurisdictional
principle that “litigants cannot bestow subject matter
jurisdiction on federal courts by waiver or consent.” Id.
Another relevant factor to consider is the plaintiff’s
failure to participate in settlement discussions. In Darensburg,
the court denied plaintiff’s motion to remand because she refused
to provide the defendants an estimate of her damages and only sent
piecemeal medical records. Darensburg, 2014 WL 4072128 at *4. The
court reasoned that “plaintiff should not be permitted to benefit
from her vague (or nonexistent) responses to [d]efendants’ several
inquiries [for damages].” Id.
Although Miller sought to describe her medical condition to
Target, in neither her discovery responses nor her deposition did
Miller ever expressly allege that her damages were greater than
$75,000. Target further argues that Miller’s failure to respond to
its requests for a settlement demand hindered its ability to remove
the matter within the one-year period. Rec. Doc. 6 at 10. Both
plaintiff’s failure to discuss, much less admit, the amount in
controversy and her legal admission that her damages did not exceed
$75,000 are relevant considerations in weighing bad faith.
However, the relatively limited caselaw on the bad faith exception
indicate that Miller’s conduct is nonetheless insufficient to meet
Target’s burden.
In Wilson, the defendant made several attempts to determine
the amount in controversy that went either unanswered or without
a conclusive response due to the plaintiff’s ongoing medical
treatment. Wilson v. Fresh Market, Inc., No. 19-cv-81037-
Dimitrouleas/Matthewman, 2020 WL 355192, at *2 (S.D.Fla. Jan. 3,
2020). Despite the plaintiff’s “noncommittal” discovery responses
and “lavish” settlement letter nine months following the removal
deadline, the court found that the plaintiff’s conduct did not
amount to a “strategic gamesmanship” attempt to prevent removal.
Id. at *5-6.3 The court reasoned, “it [wa]s clear from the record
and testimony that the amount in controversy based on [p]laintiff’s
3 “For example, courts routinely find bad faith where plaintiffs seek to
amend their complaints after the one-year removal window has expired to
claim damages more than $75,000; affirmatively disavow damages above
$75,000 and then send a demand letter immediately after the one-year
window closed; intentionally delay accepting settlement offers from non-
diverse defendants; or wholly refuse to respond to discovery requests
regarding damages. What these cases share are clear attempts at strategic
gamesmanship.” Wilson, 2020 WL 355192 at *5 (internal citations omitted).
medical bills never approached $75,000 at any point during the
one-year period.” Id. at *6.
Similarly, in Boney, the defendant alleged that the plaintiff
acted in bad faith to conceal his amount of damages based on his
medical bills, settlement discussions and an unanswered email
requesting that he stipulate to damages below the federal
jurisdictional amount. Boney v. Lowe’s Home Centers LLC, No. 3:19-
CV-1211-S, 2019 WL 5579206, at *2 (N.D.Tex. Oct. 29, 2019). The
court disagreed and declined to “infer bad faith” from evidence
that was “neither an admission that the amount in controversy [was]
less than $75,000. . .nor indicative of active concealment.” Id.
Target argues that Miller deliberately concealed her sum of
damages based on her failure to admit the amount in controversy
and participate in settlement discussions until the one-year
removal period accrued. Rec. Doc. 6 at 11. Although these are
relevant considerations of bad faith, defendant had sufficient
information that Miller’s damages exceeded $75,000. The “Past
Medical Summary” alone totaled $45,491. Rec. Doc. 1-6 at 3. We
cannot infer bad faith based on defendant’s allegations without
adequate evidence of plaintiff’s intentional concealment.
Defendant failed to proffer sufficient evidence showing that
plaintiff not only knew that her damages exceeded $75,000 but that
she also deliberately concealed that fact. Therefore, because any
ambiguities must be construed in favor of remand, the bad faith
exception under 28 U.S.C. § 1446(c) has not been shown applicable,
and defendant’s notice of removal was untimely.
New Orleans, Louisiana this 8th day of April, 2021
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE