determining that “a post-complaint letter, which is not plainly a sham, may” be evidence of the amount in controversy for purposes of removal
How later courts described this case
- determining that “a post-complaint letter, which is not plainly a sham, may” be evidence of the amount in controversy for purposes of removal
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNETH NOEL CIVIL ACTION
VERSUS NO. 24-1028
THE CONTINENTAL INSURANCE COMPANY, et SECTION: “G”(5)
al.
ORDER AND REASONS
Before the Court is Plaintiff Kenneth Noel’s (“Plaintiff”) Motion to Remand.1 Plaintiff
alleges that this matter should be remanded to state court because removal was improper.2 Plaintiff
argues that the amount in controversy did not exceed $75,000 at the time of removal.3 In
opposition, Defendants Schindler Elevator Corporation and Zurich American Insurance Company
(“Removing Defendants”) argue that Plaintiff’s pre-suit settlement demand exceeded $75,000 and
can be used as evidence of the amount in controversy.4 For the reasons discussed in more detail
below, Removing Defendants have satisfied their burden of proving that the amount in controversy
exceeds $75,000. Therefore, considering the motion, the opposition, the record, and the applicable
law, the Court denies the motion.
1 Rec. Doc. 14.
2 Id.
3 Id.
4 Rec. Doc. 15.
1
I. Background
On or about March 14, 2023, Plaintiff was a guest at the Le Meridien Hotel located at 333
Poydras Street, New Orleans, Louisiana 70130.5 The petition states that Plaintiff was in the hotel
elevator heading up towards his floor, when the elevator suddenly dropped as it got to the twentieth
floor, causing Plaintiff to fall to the ground.6 The petition states that the elevator then came to a
sudden stop before making another accelerated descent to the ground floor level.7
On February 27, 2024, Plaintiff filed a petition in the Civil District Court for the Parish of
Orleans against The Continental Insurance Company, Walton Street Capital, LLC, W-S NOLA
LM PROPCO VIII, LLC, Zurich American Insurance Company, and Schindler Elevator
Corporation.8 Plaintiff alleges that he sustained severe injuries including but not limited to painful
injuries to his lumbar spine and cervical spine.9
On April 23, 2024, Removing Defendants removed the matter to this Court asserting
subject matter jurisdiction under 28 U.S.C. § 1332.10 Removing Defendants attach a settlement
demand letter from Plaintiff’s attorney in support of the removal as the basis for the amount in
controversy.11
5 Rec. Doc. 2-1 at 2.
6 Id.
7 Id.
8 Id. at 1 – 2.
9 Id. at 3.
10 Rec. Doc. 2.
11 Rec. Doc. 2-3.
2
On May 23, 2024, Plaintiff filed the instant motion.12 On June 3, 2024, Removing
Defendants filed an opposition to the motion.13
II. Parties’ Arguments
A. Plaintiff’s Arguments in Support of the Motion
Plaintiff argues that the matter should be remanded to state court because the removal was
improper.14 Plaintiff contends that Removing Defendants do not provide any support for their
position that this matter is removable pursuant to 28 U.S.C. §§ 1332 and 1441.15 Plaintiff asserts
that the petition does not contain an amount of damages, and it is not facially apparent that the
claims are likely to exceed the $75,000 amount in controversy requirement.16
Plaintiff argues that while Removing Defendants reference demands in excess of $75,000,
the Fifth Circuit has not conclusively declared that a settlement demand is considered relevant
evidence of the amount in controversy.17 Plaintiff contends that there has been no surgical
recommendation, which courts have considered in determining the amount in controversy.18
Plaintiff asserts that the settlement demand noted that medical expenses were $7,411.60 for
12 Rec. Doc. 14.
13 Rec. Doc. 15.
14 Rec. Doc. 14-1 at 2.
15 Id.
16 Id. at 3.
17 Id. at 3–4.
18 Id. at 4–5.
3
treatment over the course of nine months.19 Plaintiff avers there is no evidence in the petition or
any “other paper” that establishes that the amount in controversy exceeds $75,000.20
B. Removing Defendants’ Arguments in Opposition to the Motion
In opposition, Removing Defendants assert that the settlement demand mentioned a
likelihood of future surgery, and the petition referenced past, present, and future medical expenses,
pain and suffering, loss of enjoyment of life, and diminished earning potential.21 Removing
Defendants state that Plaintiff made a demand for $157,411.60.22 Removing Defendants contend
that the action was removed based on the petition, the pre-suit settlement demand, and Plaintiff’s
refusal to stipulate that his damages did not exceed the sum of $75,000.23
Removing Defendants rely on Fifth Circuit authority finding that removal was proper based
on a letter in which the plaintiff’s counsel stated that the amount in controversy exceeded the
jurisdictional minimum.24 Removing Defendants contend that this Court has recognized that a
settlement demand can be relevant evidence of an amount in controversy when it “reflects an
honest assessment of the value of plaintiff’s claims.”25
19 Id. at 5.
20 Id.
21 Rec. Doc. 15 at 2.
22 Id.
23 Id.
24 Id. at 5.
25 Id.
4
Removing Defendants assert that the Fifth Circuit and other judges in this District have
held that the jurisdictional amount was satisfied in similar circumstances.26 Removing Defendants
contend that evidence shows that the amount in controversy exceeded $75,000 at the time of
filing.27 Based on representations made by Plaintiff’s counsel, Removing Defendants argue that
the settlement demand in the amount of $157,411.60 was an honest assessment of damages.28
Removing Defendants assert that Louisiana law allows a plaintiff to plead a specific
monetary sum to show “the lack of jurisdiction of federal courts due to insufficiency of
damages…”29 Removing Defendants argue that since Plaintiff did not plead a specific monetary
sum, this indicates that Plaintiff’s counsel did not believe that the amount in controversy was below
the jurisdictional threshold.30 Removing Defendants argue that when Plaintiff’s counsel was
presented with the opportunity to stipulate that Plaintiff’s damages were less than $75,000,
Plaintiff’s counsel responded, “[u]nsure of [Plaintiff’s] medical condition, better to remove.”31
Removing Defendants argue that a surgical recommendation is not conclusive in
determining the amount in controversy.32 Removing Defendants contend that Plaintiff does not
explain the contradiction in his settlement demand and the instant motion regarding a potential
26 Id. at 7–8.
27 Id. at 9.
28 Id.
29 Id. at 10 (citing Louisiana Code of Civil Procedure article 893(A)(1)).
30 Id.
31 Id.
32 Id. at 11.
5
future surgery.33 Removing Defendants assert that Plaintiff does not provide any medical records
or other evidence of Plaintiff’s injuries.34
Removing Defendants aver that other courts have found that the jurisdictional amount in
controversy was met when plaintiffs suffered similar injuries.35 Removing Defendants contend
that an award of $157,411.60, as requested by Plaintiff, would certainly be in line with similar
cases.36 Removing Defendants argue that these cases clearly demonstrate that the amount in
controversy would exceed the sum of $75,000.37
III. Legal Standard
The Fifth Circuit has “established a clear analytical framework for resolving disputes
concerning the amount in controversy for actions removed from Louisiana state courts pursuant to
§ 1332(a)(1).”38 Since Louisiana law prohibits plaintiffs from specifying the numerical value of
their damages, the removing party must prove that the amount in controversy exceeds $75,000 by
a preponderance of the evidence.39 First, the district court inquires whether it is facially apparent
33 Id.
34 Id.
35 Id. at 12–13.
36 Id. at 13.
37 Id.
38 Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir.2000) (citing Luckett v. Delta Airlines, Inc.,
171 F.3d 295, 298 (5th Cir.1999).
39 Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, (5th Cir.2002) (citing De Aguilar v. Boeing
Co., 47 F.3d 1404, 1412 (5th Cir.1995)); Gebbia, 233 F.3d at 882; Allen v. R & R Oil & Gas Co., 63 F.3d 1326, 1335
(5th Cir.1995).
6
that the claims are likely to exceed $75,000 and, if so, removal is proper.40 When making the
“facially apparent” determination, the correct procedure is to look exclusively at the face of the
complaint and ask whether the amount in controversy is likely to exceed $75,000.41 If it is not
facially apparent that the claims are likely to exceed $75,000, “the district court can then require
parties to submit summary-judgment-type evidence, relevant to the amount in controversy at the
time of removal.”42 Once the removing party makes this showing by a preponderance of the
evidence, “removal is deemed proper unless the plaintiffs show to a legal certainty that their
recovery will not exceed the jurisdictional amount.”43
IV. Analysis
Plaintiff argues that this matter should be remanded to state court because the amount in
controversy does not exceed $75,000.44 Removing Defendants counter that Plaintiff’s pre-suit
settlement demand in the amount of $157,411.60 shows that the amount in controversy has been
met.45 The parties do not contest the complete diversity requirement. At dispute is the whether the
amount in controversy exceeds $75,000. It is not “facially apparent” from Plaintiff’s petition that
the claims were likely to exceed $75,000. Since it is not “facially apparent”, the Court must next
consider whether Removing Defendants have met their burden of proving, through summary
40 Manguno, 276 F.3d at 723; Allen, 63 F.3d at 1335.
41 Allen, 63 F.3d at 1336.
42 Id.; see also Manguno, 276 F.3d at 723.
43 Fairchild v. State Farm Mut. Automobile Ins. Co., 907 F.Supp. 969, 970 (M.D.La.1995) (citing De Aguilar,
47 F.3d at 1412).
44 Rec. Doc. 14.
45 Rec. Doc. 15.
7
judgment-type evidence, that the amount in controversy in this matter is likely to exceed the
jurisdictional minimum.46
Removing Defendants argue that by producing Plaintiff’s pre-petition settlement demand
letter, they have proven that the amount in controversy exceeds $75,000. Removing Defendants
contend that pre-complaint settlement demand letters may be relied upon in proving the amount in
controversy for jurisdictional purposes. The Court finds that Plaintiff’s pre-petition settlement
demand letter is relevant evidence of the amount in controversy at the time of removal. Courts
within the Fifth Circuit have routinely held that both pre- and post-complaint demand letters may
be relied on as evidence to satisfy the amount-in-controversy requirement.47
Plaintiff relies on Mogillis v. Memberselect Insurance Co.,48 wherein this Court granted a
similar motion to remand. However, the instant matter is distinguishable from Mogillis. In
Mogillis, defendants removed the matter to this Court based upon pre-petition settlement demands.
Plaintiffs there admitted that they “demanded policy limits as a matter of prudence, given that
defendants refused to disclose the limits of the insurance coverage available.”49 By contrast,
Plaintiff here has not argued that the settlement demand was inflated or that it was not an honest
assessment of damages. “Settlement demand letters evidence the amount in controversy insofar as
46 Allen, 63 F.3d at 1335.
47 See, e.g., Addo v. Globe Life & Accident Ins. Co., 230 F.3d 759, 762 (5th Cir. 2000) (determining that “a
post-complaint letter, which is not plainly a sham, may” be evidence of the amount in controversy for purposes of
removal); Lafayette City-Par. Consol. Gov't v. Chain Elec. Co., 2011 WL 4499589, at *6 (W.D. La. Sept. 23, 2011)
(“It can be inferred from several Fifth Circuit cases that pre-petition settlement demand letters can be considered as
relevant summary judgment-type evidence of the amount of controversy.”).
48 2024 WL 835833, (E.D. La. 2/28/2024).
49 Id. at *5.
8
they represent a plaintiff's actual valuation of [his] claims.”*° The fact that the settlement demand
letter in this case extensively addresses Plaintiffs injuries, treatment, and medical expenses, with
references to supporting documentation, leads the Court to conclude that it represents an honest
assessment of Plaintiff's damages.”!
Here, the pre-petition settlement demand letter, viewed alongside allegations of serious
injuries and damages, establish by a preponderance of the evidence that the amount in controversy
exceeds $75,000. Plaintiff does not suggest that he would be able to show to a legal certainty that
the recovery will not exceed the jurisdictional amount. As such, the Court must deny Plaintiff's
motion.
VY. Conclusion
For the reasons stated herein, the Court finds that Removing Defendants have satisfied the
burden of proving that this case is removable on the basis of diversity of citizenship under 28
U.S.C. § 1332 and 28 U.S.C. § 1441. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand* is DENIED.
NEW ORLEANS, LOUISIANA, this 26th day of June, 2024.
NANNETT ; oLwed BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
© Marullo vy. Dollar Gen. Corp., 2014 WL 3587879, at *2 (E.D. La. July 21, 2014) (citing Cole v. Knowledge
Learning Corp., 2009 WL 1269591, at *4 (E.D. La. May 6, 2009), aff'd, 416 F. App’x 437 (Sth Cir. 2011).
>! Carver v. Wal-mart Stores Inc., No. 08-42, 2008 WL 2050987 (E.D. La. May 13, 2008).
» Rec. Doc. 14.