Gibson v. Progressive Paloverde Insurance Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

DONALD GIBSON CIVIL ACTION

VERSUS NO. 22-4332

PROGRESSIVE PALOVERDE SECTION “R” (2)

INSURANCE COMPANY, ET AL.

ORDER AND REASONS

Before the Court is plaintiff’s unopposed motion to remand.1 For the

following reasons, the Court grants the motion.

I. BACKGROUND

Plaintiff filed this action in Louisiana state court on September 9,

2022.2 The state court petition alleges that defendants are liable in

negligence for damages arising from an automobile accident.3 In the

petition, plaintiff neither states whether the amount in dispute exceeds

$75,000, nor includes a specific demand. Plaintiff alleges damages including

past, present, and future pain, suffering, disability, and mental anguish;

1 R. Doc. 36.

2 R. Doc. 1-4.

3 Id.

medical expenses; lost wages; lost business earnings; loss of earning

capacity; permanent disability and loss of enjoyment of life; property

damage; and serious bodily injury, including injury to plaintiff’s shoulder

and a torn meniscus in his right knee.4 Progressive Paloverde Insurance

Company (“Progressive”) removed the matter to this Court on November 1,

2022, on the basis of diversity jurisdiction.5 To demonstrate that the value

of plaintiff’s claim exceeds the amount in controversy, Progressive produced

evidence showing that, as of the date of removal, plaintiff had accrued at least

$7,706.25 in medical bills, and sustained property damage worth

$37,497.26.6

Plaintiff now moves to remand, asserting that the amount in

controversy does not exceed $75,000.7 In support of his motion, plaintiff

has executed a “binding and irrevocable” stipulation that the amount in

controversy does not exceed $75,000.8

The Court considers the motion below.

4 R. Doc. 1-4 ¶¶ 6, 8.

5 R. Doc. 1.

6 Id. at 6-8.

7 R. Doc. 36.

8 R. Doc. 36-2.

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). The removing party bears the burden of showing that federal

jurisdiction exists. See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th

Cir. 1995). In assessing whether removal was appropriate, the Court is

guided by the principle, grounded in notions of comity and the recognition

that federal courts are courts of limited jurisdiction, that removal statutes

should be strictly construed. See, e.g., Manguno v. Prudential Prop. & Cas.

Ins., 276 F.3d 720, 723 (5th Cir. 2002); see also St. Paul Mercury Indem. Co.

v. Red Cab Co., 303 U.S. 283, 288 (1938) (“The intent of Congress drastically

to restrict federal jurisdiction in controversies between citizens of different

states has always been rigorously enforced by the courts.”). Though the

Court must remand the case if at any time before the final judgment it

appears that it lacks subject matter jurisdiction, the Court’s jurisdiction is

fixed as of the time of removal. 28 U.S.C. § 1447(c); Doddy v. Oxy USA, Inc.,

101 F.3d 448, 456 (5th Cir. 1996).

For diversity jurisdiction to exist, the amount in controversy must

exceed $75,000, and there must be complete diversity between plaintiffs and

defendants. See 28 U.S.C. § 1332(a); Owen Equip. & Erection Co. v. Kroger,

437 U.S. 365, 373 (1978). Under Fifth Circuit law, if a plaintiff includes a

demand for a specific amount in his or her state court petition, this figure

will generally control. Scarlott v. Nissan N. Am., 771 F.3d 883, 888 (5th Cir.

2014). If a plaintiff does not include a demand for a specific amount, or

includes a demand for a sum less than the jurisdictional amount, the

removing defendant has the burden to show by a preponderance of the

evidence that the amount in controversy exceeds $75,000. Manguno, 276

F.3d at 723 (no specific demand); De Aguilar v. Boeing Co., 47 F.3d 1404,

1411-12 (5th Cir. 1995) (demand for less than jurisdictional amount). The

defendant can meet this burden by (1) demonstrating that it is apparent from

the face of the petition that the value of the claims is likely to exceed the

jurisdictional amount, or (2) setting forth “‘summary judgment type

evidence’ of facts in controversy that support a finding of the requisite

amount.” Manguno, 276 F.3d at 723. If it is apparent from the face of the

petition that the value of the claims is likely to exceed the jurisdictional

amount, “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). But “if the basis for

jurisdiction is ambiguous at the time of removal,” the Court may consider

“post-removal [stipulations or] affidavits” in determining whether the

amount in controversy exceeds the jurisdictional amount in addition to

“summary judgment type evidence.” Id.

If the defendant satisfies its burden to show that the jurisdictional

amount is met, the plaintiff can defeat removal only by showing that it is

legally certain that the plaintiff could not recover an amount in excess of

$75,000. See De Aguilar, 47 F.3d at 1411-12; see also Allstate Fire & Cas.

Ins. Co. v. Love, 71 F.4th 348, 355 n.4 (5th Cir. 2023) (affirming same).

III. DISCUSSION

As a threshold matter, defendants’ decision not to oppose plaintiff’s

remand motion is, in itself, sufficient grounds to remand. Brown v. Heintz,

No. 16-13697, 2017 WL 604034, at *2 (E.D. La. Feb. 15, 2017) (collecting

cases); see also Jackson v. City of New Orleans, No. 95-1340, 1995 WL

599046, at *1 (E.D. La. Oct. 10, 1995) (holding that plaintiff’s remand motion

“could be granted as unopposed”).

Furthermore, the Court finds that remand is required. It is not facially

apparent from plaintiff’s petition that he asserts a claim that satisfies the

jurisdictional amount. Plaintiff’s petition alleges only that he has suffered

“an injury to his shoulder and a torn meniscus in his right knee,” in addition

to conclusory allegations of “emotional trauma, serious bodily injuries,

property damage, and economic loss.”9 See Simon, 193 F.3d at 850-51

(finding amount in controversy not met when complaint alleged damages for

severely injured shoulder, soft-tissue injuries, bruises, abrasions, medical

expenses, and loss of consortium); Guillory v. Chevron Stations, Inc., No. 3-

2385, 2004 WL 1661201, at *2 (E.D. La. July 22, 2004) (amount in

controversy not facially apparent from the complaint when plaintiff alleged

“a fracture to her knee and torn internal structures of her knee” and sought

damages for past and future pain, suffering, disability, medical expenses, loss

of wage and salary, and loss of enjoyment of life). Similarly, the Court finds

that the basis for removal was ambiguous at the time of removal. See

Darensbourg v. Sullivan, No. 16-16621, 2017 WL 372637, at *2 (E.D. La. Jan.

25, 2017) (“Because Plaintiff did not detail his injuries or expected medical

costs, the amount of damages requested in the initial petition are

ambiguous.”); Gonzalez v. Granter, No. 15-5928, 2016 WL 3268165, at *3

(E.D. La. June 15, 2016) (holding petition ambiguous because “though

[p]laintiff alleges that she suffered ‘severe injuries,’ her petition does not . . .

detail the duration of the injury, any past or future treatments that have been

provided or recommended, any resulting physical limitations, permanent

pain, or other disability resulting from the injuries, and/or any loss of

9 R. Doc. 1-4 ¶¶ 5-6.

employment”). Accordingly, it is Progressive’s burden to show that the

amount in controversy exceeds $75,000 by “summary judgment type

evidence,” and the Court may consider plaintiff’s post-removal stipulation.

The evidence Progressive attached to its notice of removal fails to show

that the jurisdictional amount is satisfied. Rather, while it demonstrates that

plaintiff has received treatment for back pain, including a lumbar

decompression and epidural steroid injections, it does not indicate the costs

of these procedures, the likely costs of future treatment, or any other basis to

conclude that the treatments would satisfy the amount in controversy

requirement. Further, plaintiff stipulates that the amount in controversy

does not exceed $75,000, which Progressive does not contest.10 See De

Aguilar, 47 F.3d at 1406 (“Post-removal [stipulations or] affidavits

sometimes can be relevant where the jurisdictional amount question is

unresolved.”); McGlynn v. Huston, 693 F. Supp. 2d 585, 596-97 (M.D. La.

2010) (remanding in light of post-removal stipulation because “the amount

in controversy remains ambiguous”). Thus, the Court finds that defendant

fails to meet its burden to establish that the jurisdictional amount in

satisfied.

10 R. Doc. 36-2.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS plaintiffs motion to

remand. This case is REMANDED to the Civil District Court for the Parish

of Orleans in the State of Louisiana. The joint motions to dismiss plaintiff's

bodily injury claims against defendants Progressive Paloverde Insurance

Company and Terryelle Johnson" are DISMISSED for lack of jurisdiction.

New Orleans, Louisiana, this 12th day of March, 2024.

_Lernk Varner

SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

1 R. Docs. 43 & 48.