Moorhouse v. Liberty County Mutual Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RONALD MOORHOUSE CIVIL ACTION

VERSUS NO. 23-1198

LIBERTY COUNTY MUTUAL SECTION: D (4)

INSURANCE COMPANY, ET AL.

ORDER AND REASONS

Before the Court is an Unopposed Motion to Remand, filed by defendants,

Liberty County Mutual Insurance Company, Safeco Insurance Company, and Jack

Bandiera.1

After considering the Motion and the applicable law, for the reasons expressed

below, the Unopposed Motion to Remand is GRANTED and this matter is hereby

REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.

I. FACTUAL AND PROCEDURAL BACKGROUND

On or about December 16, 2022, Ronald Moorhouse (“Plaintiff”) filed a Petition

for Damages against Liberty County Mutual Insurance Company, Safeco Insurance

Company, and Jack Bandiera (collectively, “Defendants”) in Civil District Court for

the Parish of Orleans, State of Louisiana, seeking damages from a motor vehicle

accident that occurred on or about February 14, 2022.2 On April 6, 2023, Defendants

filed a Petition for Removal in this Court, asserting that the Court has subject matter

jurisdiction over this case based upon 28 U.S.C. § 1332, diversity jurisdiction.3

1 R. Doc. 8.

2 R. Doc. 1-6 at pp. 4-6.

3 R. Doc. 1 at ¶ 6.

On April 11, 2023, the Court issued an Order, advising Defendants that the

Petition for Removal failed to show that the amount in controversy was likely to

exceed $75,000 in this case.4 As such, the Court gave Defendants until April 18, 2023

to file a comprehensive amended notice of removal that properly set forth the

citizenship particulars of all of the parties and alleged sufficient facts to show the

amount in controversy was satisfied at the time of removal, as required to establish

diversity jurisdiction.5 Pursuant to that Order, Defendants filed an Amended Notice

of Removal on April 17, 2023.6

On April 25, 2023, the Court issued an Order striking the Amended Notice of

Removal for failure to comply with the Court’s April 11th Order, as Defendants again

failed to allege sufficient facts to show that the amount in controversy was likely to

exceed $75,000.7 Specifically, Defendants relied upon Plaintiff’s denial of two

requests for admission wherein Plaintiff was asked to admit whether the amount in

controversy exceeds $75,000, which the Court previously advised was insufficient to

establish the amount in controversy.8 The Court further advised that Defendants’

reliance upon the fact that Plaintiff allegedly suffered disc herniations as a result of

the underlying incident was likewise insufficient to show that the amount in

controversy was satisfied without a surgery recommendation.9 The Court gave

4 R. Doc. 4.

5 Id.

6 R. Doc. 5.

7 R. Doc. 6.

8 Id. at p. 1 (citing R. Doc. 5-2 at pp. 2-3 & R. Doc. 4).

9 R. Doc. 6 at pp. 1-2 (citing Hitchens v. Bunch, Civ. A. No. 21-1410, 2021 WL 5822639, at *5 (E.D. La.

Dec. 8, 2021) (Milazzo, J.) (citing authority); Sanderford v. Wal-Mart Inc., Civ. A. No. 19-292-JWD-

EWD, 2019 WL 2179237, at *1 (M.D. La. May 20, 2019) (Wilder-Doomes, M.J.) (“[w]hether or not a

herniated disc satisfied the amount in controversy often turns on whether surgery is recommended.”)

Defendants until April 30, 2023 to file another amended notice of removal setting

forth the citizenship particulars of the parties and alleging sufficient facts to show

that the amount in controversy was satisfied at the time of removal, as required to

establish that the Court has diversity jurisdiction over this case.10

Defendants opted not to file another amended notice of removal. Instead,

Defendants filed the instant Unopposed Motion to Remand on May 17, 2023, asking

the Court to remand the case back to state court because Defendants “have no further

facts to show that amount [sic] in controversy was satisfied at the time of removal.”11

Defendants assert that, at this time, they have no evidence that Plaintiff has received

a surgical recommendation, nor do Defendants believe that the known medical

expenses incurred by Plaintiff at the time of removal are of a sufficient amount to

change the Court’s prior rulings.12 Because Defendants have no other facts to show

the amount in controversy was satisfied at the time of removal, Defendants ask that

this matter be remanded to state court.13 According to Defendants, Plaintiff does not

oppose the Motion.14

II. LAW AND ANALYSIS

A defendant may remove “any civil action brought in a State court of which the

district courts of the United States have original jurisdiction.”15 When original

(quotation and internal quotation marks omitted); Robinson v. Kmart Corp., Civ. A. No. 11-12, 2011

WL 2790192, at *4, n.4 (M.D. La. Apr. 28, 2011) (Dalby, M.J.), report and recommendation adopted,

2011 WL 2937952 (M.D. La. July 14, 2011)).

10 R. Doc. 6 at p. 3.

11 R. Doc. 8 at p. 1.

12 R. Doc. 8-1 at p. 4.

13 Id.

14 R. Doc. 8 at p. 2.

15 28 U.S.C. § 1441(a).

jurisdiction is based on diversity of citizenship, the cause of action must be between

“citizens of different States” and the amount in controversy must exceed the “sum or

value of $75,000, exclusive of interest and costs.”16 Subject matter jurisdiction must

exist at the time of removal to federal court, based on the facts and allegations

contained in the complaint.17 The removal statute, 28 U.S.C. § 1441, is strictly

construed and any doubt as to the propriety of removal should be resolved in favor of

remand. 18 The removing party has the burden of proving federal diversity

jurisdiction.19 If a defendant meets that burden, the plaintiff must prove to a legal

certainty that her recovery will not exceed the jurisdictional amount to obtain a

remand. 20 Remand is proper if at any time the court lacks subject matter

jurisdiction.21

In Louisiana courts, plaintiffs may not specify the numerical value of a claim

for damages and may receive relief not requested in the pleadings.22 As such, a

defendant seeking removal from Louisiana state court to federal court must prove by

a preponderance of the evidence that the amount in controversy exceeds $75,000.23

According to the Fifth Circuit, a defendant may make this showing in either of two

ways: (1) by demonstrating that it is “facially apparent” that the claims are likely

16 28 U.S.C. § 1332(a)-(a)(1).

17 St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (“jurisdictional facts

must be judged as of the time the complaint is filed”).

18 Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).

19 Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir. 2003).

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

21 See, 28 U.S.C. § 1447(c).

22 Lottinger v. State Farm Fire and Cas. Co., Civ. A. No. 13-6193, 2014 WL 4403440, at *2 (E.D. La.

Sept. 5, 2014) (Brown, J.) (citing La. Code Civ. P. arts. 893 & 862).

23 Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (citing De Aguilar v. Boeing Co., 11

F.3d 55, 58 (5th Cir. 1993)).

above $75,000; or (2) by setting forth the facts in controversy – preferably in the

removal petition, but sometimes by affidavit – that support a finding of the requisite

amount.24 If it is not “facially apparent” that a plaintiff’s claims exceed the

jurisdictional threshold, the court may rely on summary-judgment-type evidence to

ascertain the amount in controversy.25

Remand is proper if at any time the court lacks subject matter jurisdiction.26

Additionally, “federal courts must address jurisdictional questions whenever they are

raised and must consider jurisdiction sua sponte if not raised by the parties.”27

“Though a court may not sua sponte remand a case for procedural defects, § 1447(c)

makes clear that a court must remand a case if it determines that it lacks subject

matter jurisdiction.”28

III. ANALYSIS

Applying the foregoing principles to the Petition for Removal, the Court finds

that Defendants have failed to carry their burden of proving that the Court has

diversity jurisdiction over this case. Plaintiff’s state court Petition provides no

information regarding his injuries or the amount in controversy regarding his alleged

damages.29 Instead, Plaintiff alleges that he has suffered several “harms and losses”

including physical pain and suffering, mental anguish, loss of enjoyment of life,

24 Luckett, 171 F.3d at 298 (quoting Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995))

(internal quotation marks omitted).

25 Lottinger, Civ. A. No. 13-6193, 2014 WL 4403440 at *2 (quoting White v. FCI USA, Inc., 319 F.3d

672, 675 (5th Cir. 2003)) (internal quotation marks omitted).

26 See, 28 U.S.C. § 1447(c).

27 Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).

28 Harrison v. Crowley Maritime Corporation, 181 F. Supp. 3d 441, 443 (S.D. Tex. 2016) (citing

Coleman v. Alcolac, Inc., 888 F. Supp. 1388, 1394 (S.D. Tex. 1995)).

29 R. Doc. 1-6 at pp. 4-6.

medical expenses, and lost wages/earnings and/or earning capacity.30 It is well-

settled in this Circuit that pleading general categories of damages, such as pain and

suffering, disability, lost wages, loss of earning capacity, medical expenses, etc.,

without any indication of the amount of the damages sought, “does not provide

sufficient information for the removing defendant to meet his burden of proving that

the amount in controversy is satisfied under the ‘facially apparent’ test.” 31

Defendants did not provide any information regarding Plaintiff’s injuries or damages

in their Petition for Removal or their Memorandum in Support of Removal.32 Another

Section of this Court has repeatedly held that, “where a defendant produces no

evidence about a plaintiff’s injuries and merely relies on plaintiff’s generic allegations

of damages, the defendant fails to carry its burden of proof to justify removal.”33

Thus, Plaintiff’s generic allegations of damages in the state court Petition are not

sufficient to show that the amount in controversy is met in this case.

In the Petition for Removal, Defendants assert that the amount in controversy

is likely to exceed $75,000 in this case based upon Plaintiff’s denial of two requests

for admission, in which Plaintiff was asked to admit that the amount in controversy

does not exceed $75,000 and to admit that he’ll reduce or limit his damages to

30 Id. at p. 5.

31 Dunomes v. Trinity Marine Products, Inc., Civ. A. No. 14-1968, 2014 WL 7240158, at *3-4 (E.D. La.

Dec. 19, 2014) (Wilkinson, M.J.) (quotation omitted) (citing authority).

32 See, generally, R. Docs. 1 & 1-2.

33 Lewis v. Mountain Laurel Assurance Company, Civ. A. No. 19-12634, 2020 WL 859507, at *2 (E.D.

La. Feb. 21, 2020) (Milazzo, J.) (citing Sims v. Family Dollar Stores of Louisiana, Inc., Civ. A. No. 18-

8616, 2019 WL 140853, at *2 (E.D. La. Jan. 8, 2019) (Milazzo, J.)); Sims, Civ. A. No. 18-8616, 2019 WL

140853 at *2 (“Defendant has produced no evidence about Plaintiff’s injuries in this case. Defendant’s

focus on Plaintiff’s vague allegation of ‘permanent disability’ and loss of earning capacity in her

petition is insufficient to carry its burden of proof to justify removal.”).

$75,000.34 As the Court previously advised in its April 11, 2023 Order, this Court has

held that, “The burden on Defendants ‘to produce information’ that the amount in

controversy exceeds $75,000 is an ‘affirmative’ one.”35 Accordingly, Defendants’

reliance upon Plaintiff’s negative responses to two requests for admission, alone, does

not satisfy their affirmative duty to show that the amount in controversy is met in

this case.36

Finally, Defendants concede that there is no evidence before the Court that

Plaintiff, who allegedly suffered herniated discs as a result of the underlying incident,

has received a surgical recommendation for his disc herniations.37 As explained by

another Section of this Court, “[T]his Court has repeatedly held that unoperated

herniated discs do not meet the jurisdictional minimum.”38 Thus, reliance upon

34 R. Doc. 1-2 at pp. 2-3.

35 R. Doc. 4 at p. 2 (citing Hill v. Alford, Civ. A. No. 17-15737, 2018 WL 798243, at *4 (E.D. La. Feb. 9,

2018) (Brown, J.) (quoting Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851 (5th Cir. 1999) (holding

that defendant “had an affirmative burden to produce information . . . sufficient to show ‘by a

preponderance of the evidence that the amount in controversy exceed[ed] $75,000.’”)).

36 See, Leger v. Hudson Ins. Co., Civ. A. No. 21-00248-BAJ-RLB, 2021 WL 3662071, at *2 (M.D. La.

Aug. 18, 2021) (Jackson, J.) (finding the defendants’ reliance upon plaintiff’s negative response to a

request for admission, counsel’s correspondence regarding plaintiff’s medical condition, and quantum

research “falls far short of an ‘affirmative showing.’”); Cabrera v. Toys R Us-Delaware, Civ. A. No. 12-

1319, 2012 WL 2935685, at *2 (E.D. La. July 17, 2012) (Berrigan, J.) (“Accepting plaintiffs’ admissions

that they intend to seek more than the jurisdictional minimum (or, as in the cases above, deny that

they don’t intend to seek less than the jurisdictional minimum) would offer parties a tool to consent to

subject matter jurisdiction, which is not permitted.”). See also, Leger, Civ. A. No. 21-00248-BAJ-RLB,

2021 WL 3662071 at n.3 (discussing a split in authority regarding whether a plaintiff’s response to a

request for admission, standing alone, can satisfy 28 U.S.C. § 1332(a)’s amount in controversy

requirement).

37 R. Doc. 8-1 at p. 4.

38 Hitchens v. Bunch, Civ. A. No. 21-1410, 2021 WL 5822639, at *5 (E.D. La. Dec. 8, 2021) (Milazzo, J.)

(citing authority). See, Sanderford v. Wal-Mart Inc., Civ. A. No. 19-292-JWD-EWD, 2019 WL 2179237,

at *1 (M.D. La. May 20, 2019) (Wilder-Doomes, M.J.) (“[w]hether or not a herniated disc satisfied the

amount in controversy often turns on whether surgery is recommended.”) (quotation and internal

quotation marks omitted); Robinson v. Kmart Corp., Civ. A. No. 11-12, 2011 WL 2790192, at *4, n.4

(M.D. La. Apr. 28, 2011), report and recommendation adopted, 2011 WL 2937952 (M.D. La. July 14,

2011)) (internal quotation marks omitted).

Plaintiffs alleged disc herniation injuries is not sufficient to show that the amount in

controversy is met.

Based on the foregoing, the Court finds that Defendants have failed to show

that it is facially apparent from Plaintiffs state court Petition that his damages are

likely to exceed $75,000. The Court further finds that Defendants have failed to

submit evidence to show that Plaintiffs damages are likely to exceed $75,000.

Because the removal statute is strictly construed and any doubt as to the propriety

of removal must be resolved in favor of remand, the Court finds that Defendants have

failed to carry their burden of proving, by a preponderance of the evidence, that the

amount in controversy exceeds $75,000 in this case, exclusive of interest and costs.

Thus, the Court lacks subject matter jurisdiction under 28 U.S.C. § 1332 and remand

is required.

IV. CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED that the

Unopposed Motion to Remand?? is GRANTED. This matter is hereby REMANDED

to the Civil District Court for the Parish of Orleans, State of Louisiana, for lack of

subject matter jurisdiction under 28 U.S.C. § 13382.

New Orleans, Louisiana, May 18, 2023.

(end, & Vettic

WENDY B. VITTER

United States District Judge