Maurice v. Winn Dixie Montgomery, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BRENE MAURICE CIVIL ACTION

VERSUS NO. 24-2225

WINN DIXIE MONTGOMERY, LLC, ET AL. SECTION: D(1)

ORDER AND REASONS

Before the Court is a Motion to Remand filed by Plaintiff Brene Maurice.1

Defendant Winn Dixie Montgomery, LLC opposes the Motion.2 After careful

consideration of the parties’ memoranda, the record, and the applicable law, the

Court GRANTS the Motion and REMANDS this matter to the Civil District Court

for the Parish of Orleans, State of Louisiana.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 4, 2023, Plaintiff Brene Maurice (“Maurice”) was grocery shopping at

a store operated by Winn Dixie Montgomery, LLC (“Winn Dixie”).3 Maurice alleges

that as she was leaving the dairy aisle, she slipped and fell, which resulted in “severe

injuries to her person.”4 On May 10, 2024, Maurice filed this lawsuit in the Civil

District Court for the Parish of Orleans against Winn Dixie and ABC Insurance;5

Winn Dixie removed to this Court on September 10, 2024, pursuant to diversity

jurisdiction under 28 U.S.C. § 1332.6

1 R. Doc. 5.

2 R. Doc. 8.

3 R. Doc. 1 at ¶ 5.

4 Id. at ¶ 6.

5 R. Doc. 1-2.

6 R. Doc. 1.

On October 10, 2024, Maurice filed the instant Motion to Remand, arguing that

the elements for diversity jurisdiction are not met in this case. First, Maurice argues

that ABC Insurance is likely a citizen of Louisiana and if so, removal was improper

because ABC Insurance is not diverse from Maurice, who is also a citizen of

Louisiana.7 Maurice further argues that if ABC Insurance is in fact a Louisiana

citizen, removal is improper under the forum defendant rule, which she appears to

argue precludes removal of a matter wherein any defendant is a citizen of the state

in which the action is brought.8 Second, Maurice argues that Winn Dixie has not met

its burden to establish that the amount in controversy exceeds $75,000, as is required

under the diversity jurisdiction statute.9

Winn Dixie argues in response that the citizenship of ABC Insurance is

irrelevant because ABC Insurance is a fictitious party whose citizenship is

disregarded for the purposes of diversity.10 Winn Dixie then argues that it is facially

apparent from the face of Maurice’s Petition that her damages exceed $75,000.11

Winn Dixie points to Maurice’s allegation that she sustained “severe injuries to her

person” and her request for damages for past, present, and future pain and suffering,

mental anguish and emotional distress, loss of enjoyment of life, medical expenses,

lost wages, impairment of earning capacity, and any and all other damages to be set

7 R. Doc. 5-1 at 3. Neither party has identified ABC Insurance as a citizen of Louisiana. Maurice

claims, however, that it “has been identified as a ‘foreign insurance company licensed to do business

in the State of Louisiana’” and that this “may suggest its citizenship within Louisiana for jurisdictional

purposes.” Id. (quoting R. Doc. 1-2 at ¶ 1).

8 Id. at 4 (citing 28 U.S.C. § 1441(b)).

9 Id. (citing 28 U.S.C. § 1332(a)).

10 R. Doc. 8 at 2.

11 Id. at 4.

forth at the time of trial of this matter.12 Winn Dixie further argues that even if the

amount in controversy is not facially apparent, a prelitigation settlement offer by

Maurice to Winn Dixie’s alleged insurer establishes that Maurice’s claims exceed

$75,000.13

II. LEGAL STANDARD

Federal courts are courts of limited jurisdiction.14 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 jurisdiction is based on diversity

of citizenship, as it is here, 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 The removing party has the burden of proving

federal diversity jurisdiction.17 The removal statute is strictly construed and any

doubt as to the propriety of removal should be resolved in favor of remand.18 Remand

is proper if at any time the court lacks subject matter jurisdiction.19

III. ANALYSIS

Maurice argues that this matter must be remanded, first because of ABC

Insurance’s citizenship and second, because the amount in controversy is less than

$75,000. In addition to remand, Maurice seeks attorney’s fees and costs based on the

12 Id. (citing R. Doc. 1-2 at ¶ 8).

13 Id. at 5.

14 Perez v. McCreary, Veselka, Bragg & Allen, P.C., 45 F.4th 816, 821 (5th Cir. 2022).

15 28 U.S.C. § 1441(a).

16 28 U.S.C. § 1332(a)–(a)(1).

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

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

19 See 28 U.S.C. § 1447(c).

“unnecessary delay and expense” that Winn’s Dixie’s “improper removal . . . has

caused.”20 The Court will address each argument in turn.

A. Whether ABC Insurance’s Citizenship Requires Remand

Maurice’s initial basis for remand is ABC Insurance’s citizenship, which

Maurice argues may be Louisiana given its “status as a licensed foreign insurer” in

Louisiana.21 Maurice argues that if this is the case, removal is improper due to lack

of diversity and because ABC Insurance is a forum defendant.

Maurice is correct that typically, a Louisiana defendant, properly joined and

served, would destroy complete diversity between that defendant and Plaintiff, who

is also a Louisiana citizen. It may also violate the forum defendant rule, which

provides that “[a] civil action otherwise removable solely on the basis of [diversity]

jurisdiction . . . may not be removed if any of the parties in interest properly joined

and served as defendants is a citizen of the State in which such action is brought.”22

As Winn Dixie points out, however, “[i]n determining whether a civil action is

removable on the basis of the [diversity jurisdiction], the citizenship of defendants

sued under fictitious names shall be disregarded.”23 Maurice does not allege that

ABC Insurance is the actual name of Winn Dixie’s insurer, nor does she offer any

identifying information about it. In sum, Plaintiff does not contest that ABC

Insurance is a fictitiously named company. The record likewise does not indicate that

20 R. Doc. 5-1 at 5.

21 Id. at 4.

22 28 U.S.C. 1441(b)(2). Neither party addresses whether ABC Insurance has been properly joined and

served.

23 28 U.S.C. § 1441(b)(1); see Cobb v. Delta Exports, Inc., 186 F.3d 675, 680 n.11 (5th Cir. 1999) (“That

the fictitious defendants might have been non-diverse was properly disregarded when the case was

initially removed to federal court on diversity grounds.”).

ABC Insurance has been served, and it is clear that it has not yet appeared.24 The

Court therefore treats ABC Insurance as a fictitious party and disregards its

citizenship. For this reason, to the extent Maurice’s Motion seeks remand based on

ABC Insurance’s citizenship, the Motion is denied.

B. Whether Winn Dixie Has Established the Requisite Amount in

Controversy

Maurice’s second ground for remand is that the amount in controversy

necessary to invoke diversity jurisdiction is not met in this case. In Louisiana state

courts, plaintiffs are not allowed to specify the numerical value of a claim for damages

and may receive relief not requested in the pleadings.25 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 $75,000.26 The Fifth Circuit

permits a defendant to make this showing by: (1) demonstrating that it is “facially

apparent” that the claims are likely above $75,000; or (2) setting forth the facts in

controversy that support a finding of the requisite amount.27 If it is not “facially

24 Beiriger v. Medtronic Dofamor Danek USA, Inc., No. 17-CV-742, 2017 WL 8944085, at *4 (M.D. La.

Nov. 30, 2017) (“In the Motion to Remand, Plaintiff does not allege that [ABC Insurance Company,

DEF Insurance Company, and XYZ Insurance Company] are the actual names of the Medtronic

Defendants insurers. Thus, the Insurance Company Defendants are fictitiously named.”); Johnson v.

Blann Tractor Co., No. 07-CV-1009, 2007 WL 2403267, at *1 n.1 (E.D. La. Aug. 16, 2007) (Engelhardt,

J.) (“Plaintiff has not served ABC Insurance Company, nor has he included any identifying information

regarding this party in the Petition or Motion to Remand. Thus, the Court treats ABC Insurance

Company as a fictitious name.”).

25 Lottinger v. State Farm Fire & Cas. Co., No. 13-CV-6193, 2014 WL 4403440, at *2 (E.D. La. Sept. 5,

2014) (Brown, C.J.) (citing LA. CODE CIV. PROC. arts. 893, 862).

26 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)).

27 Id. (quoting Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)) (internal quotation

marks omitted).

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.28

In its Notice of Removal, Winn Dixie asserts that it is facially apparent that

the amount in controversy has been met.29 Winn Dixie contends that Maurice’s

Petition, which alleges that she suffered “severe injuries to her person” and in which

she seeks multiple categories of damages, is sufficient to show that Maurice’s claims

exceed $75,000. Winn Dixie then argues that even if the amount in controversy is

not apparent from the face of the Petition, it is made apparent through a prelitigation

demand letter Maurice sent to Winn Dixie’s alleged insurer.

After careful review of Maurice’s Petition, the Court finds that it is not facially

apparent from the face of the pleading that Maurice’s claims exceed $75,000. In her

Petition, Plaintiff’s sole allegation as to her injuries is that she suffered “severe

injuries to her person.”30 Courts routinely find that such conclusory allegations,

without more, do not establish the threshold amount in controversy. In Dykes v. Lyft,

Inc., the Middle District of Louisiana found that a plaintiff’s allegations that he

suffered “severe injuries,” including injuries to his neck, back, and both shoulders,

was not sufficient to support diversity jurisdiction.31 The Court explained:

Plaintiff does not allege the specific nature of his physical injuries or

the treatment sought or received . . . . There is no allegation that

Plaintiff has suffered fractures or other wounds that would require

immediate medical attention. Plaintiff does not allege that he suffered

nerve damage, herniated discs, or that his injuries resulted in any

28 Lottinger, 2014 WL 4403440 at *2 (quoting White v. FCI USA, Inc., 319 F.3d 672, 675 (5th Cir. 2003))

(internal quotation marks omitted).

29 R. Doc. 1 at ¶ 16.

30 R. Doc. 1-2 at ¶ 6.

31 551 F.Supp.3d 618 (M.D. La. 2021).

surgery. Plaintiff does not identify any incurred medical and drug

expenses or the scope of the medical treatment he has received or

continues to receive as a result of the incident. In the absence of

additional factual assertions by Plaintiff regarding the extent or nature

of the actual physical injuries suffered, the Petition does not provide

enough information for the court to conclude that the amount in

controversy is facially apparent.32

Here, the information about Maurice’s injuries are even more sparse than

those in Dykes. Indeed, Maurice’s allegations as to her injuries begin and end with

her claim that she suffered severe injuries. The state court Petition does not include

any factual allegations as to the type or severity of her injuries, the specific damage

that those injuries caused, or whether her injuries require medical treatment.33 On

such thin allegations, and without more, the Court cannot conclude that Plaintiff’s

injuries are more likely than not to exceed $75,000. Maurice’s allegation that she

suffered “severe injuries to her person” is not enough to make it facially apparent

from the Petition that her claims exceed $75,000.

Winn Dixie’s reliance on Plaintiff’s invocation of general categories of damages

likewise fails to sustain its burden of proving that the amount in controversy was met

at the time of removal.

32 Id. at 622-23 (citing Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999)).

33 Baker v. Fam. Dollar Stores of Tex., LLC, No. 21-CV-1708, 2021 WL 3725923, at *3 (N.D. Tex. Aug.

23, 2021) (“Mr. Baker alleges that he was injured and suffered severe physical injuries, but this

statement is conclusory. The Petition contains no factual allegations regarding the severity of his

injuries, the type of injuries he suffered, or the manner in which he has been disfigured. It contains

no factual allegations of any medical treatment Plaintiff has received, or the cost or duration of such

medical treatment.”); see Bonck v. Marriott Hotels, Inc., No. 02-CV-2740, 2002 WL 31890932, at *2

(E.D. La. Dec. 30, 2002) (Vance, J.); Maze v. Protective Ins. Co., No. 16-CV-15424, 2017 WL 164420, at

*4 (E.D. La. Jan. 17, 2017) (Engelhardt, J.) (“With respect to bodily injuries, though Plaintiffs allege

“severe and disabling injuries,” their petition does not identify any specific injury, and does not detail

the duration of the injury(ies), 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 losses of employment or wages caused by Plaintiffs' injuries.”).

Courts have routinely held 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.34

“When, as in the instant case, the petition is vague regarding the types of injuries

incurred and any future problems resulting from the incident, ‘the court must

conclude that it is not “facially apparent” that the amount of damages would exceed

$75,000.’”35 Accordingly, even considering Maurice’s allegations that she is entitled

to a number of categories of damages, the Petition fails to establish the amount in

controversy on its face.

That the amount in controversy is not facially apparent is not dispositive of

Winn Dixie’s Motion, however. It only means that to avoid remand, Winn Dixie must

submit summary judgment showing that Maurice’s amount in controversy exceeds

$75,000.36 To meet this burden, Winn Dixie points to a prelitigation settlement

demand by Maurice to Winn Dixie’s alleged insurer that calculates Maurice’s

incurred medical expenses at approximately $18,000 and “demand[s] policy limits . .

. to settle this matter.”37 Winn Dixie argues that this amount, “in addition to a

34 Dykes, 551 F.Supp.3d at 622-23 (quoting Davis v. JK & T Wings, Inc., No. 11-CV-501, 2012 WL

278728, at *3 (M.D. La. Jan. 6, 2012)) (collecting cases).

35 Dunomes v. Trinity Marine Prods., Inc., No. 14-CV-1968, 2014 WL 7240158 (E.D. La. Dec. 19, 2014)

(Wilkinson, M.J.) (quoting Broadway v. Wal-Mart Stores, No. 00-CV-1893, 2000 WL 1560167, at *2

(E.D. La. Oct. 18, 2000) (Livaudais, J.)); see Butler v. Progressive Sec. Ins. Co., No. 21-CV-414, 2021

WL 1961666, at *6 (E.D. La. May 17, 2021) (Vitter, J.) (internal citation omitted) (“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.”).

36 Lottinger, 2014 WL 4403440 at *2 (quoting White, 319 F.3d at 675) (internal quotation marks

omitted).

37 R. Doc. 8-1.

herniated lumbar disc and other anatomical injuries” clearly meets the jurisdictional

threshold.38

Although “federal district courts in Louisiana have . . . recognized that

settlement demands are ‘valuable evidence’ in determining the amount in

controversy,” Maurice’s demand letter upon which Winn Dixie relies does not save

Winn Dixie here.39 Maurice’s settlement demand seeks a total of $38,687.04,

approximately $18,000 of which is comprised of medical expenses and $20,000 for

pain and suffering.40 Winn Dixie argues that “general damages for herniated lumbar

discs,” with which Maurice was diagnosed, “alone have garnered awards exceeding

$75,000.”41 But it is not enough that damages for the type of injury Maurice alleges

could lead to an award in excess of $75,000.42 Winn Dixie has not presented any

evidence to suggest that Maurice will incur additional medical costs through surgery

or otherwise.43 Notedly, Winn Dixie has failed to provide the Court with any

summary judgment type evidence of any further medical or other expenses incurred

38 R. Doc. 8 at 6-7.

39 Mogilles v. Memberselect Ins. Co., No. 23-CV-7045, 2024 WL 835833, at *4 (E.D. La. Feb. 28. 2024)

(Brown, C.J.) (citing Fairchild v. State Farm Mut. Auto. Ins. Co., 907 F.Supp. 969, 971 (M.D. La. 1995)).

40 R. Doc. 8-1 at 3. The remaining $687 covers various other expenses. The Court further notes that

the outstanding medicals of $18,000 encompassed the time period from the date of incident, June 30,

2023, through the date of the demand letter, February 1, 2024, a seven-month period.

41 Id. at 6.

42 Carbajal v. Caskids Oil Operating Co., No. 05-CV-5966, 2006 WL 1030392, at *2 (E.D. La. Apr. 18,

2006) (Africk, J.) (“The reality that plaintiffs may recover greater than $75,000 does not suffice to

warrant removal.”); see also Maze, 2017 WL 164420, at *4 (Engelhardt, J.) (“[M]erely because a

plaintiff’s damages potentially may exceed $75,000 does not make . . . such an award appear more

likely than not.”); Buchana v. Wal-Mart Stores, Inc., No. 99-CV-2783, 1999 WL 1044336, at *4 (E.D.

La. Nov. 17, 1999) (Vance, J.) (“A ‘could well’ standard sounds more like a ‘possibility’ standard of

proof, rather than a ‘more likely than not’ standard.”) (citing Allen, 63 F.3d at 1336).

43 Thomas v. Louis Dreyfus Commodities, LLC, No. 15-CV-394, 2016 WL 1317937, at *4 (M.D. La. Mar.

11, 2016) (internal quotations and citation omitted) (collecting cases).

by Plaintiff prior to the removal of this matter. Absent such evidence, the Court must

remand.44

C. Maurice’s Request for Attorney’s Fees and Costs

Having determined removal was improper, the Court turns to Maurice’s

request for attorney’s fees and costs incurred as a result of removal. Title 28, United

States Code, Section 1447(c) provides that a court, upon ordering remand, “may

require payment of just costs and any actual expenses, including attorney fees,

incurred as a result of the removal.” “In general, ‘courts may award attorney’s fees

under § 1447(c) only where the removing party lacked an objectively reasonable basis

for seeking removal.’”45 A party that ‘“could conclude from th[e] case law that its

position was not an unreasonable one’ at the time of removal” had an objectively

reasonable basis for removal.46 “The district court’s determination that removal was

improper is insufficient grounds for awarding fees.”47

Maurice argues that “removal in this case was objectively unreasonable

given the untimely filing.”48 Maurice’s arguments in favor of remand were based on

a lack of jurisdiction, however. Nowhere in Maurice’s Motion does she explain why

44 To the extent Winn Dixie suggests that the settlement demand meets the amount in controversy

because Maurice demanded policy limits, this argument fails, because Winn Dixie does not offer any

evidence showing that its policy exceeds $75,000.

45 Thomas v. S. Farm Bureau Life Ins. Co., 751 F. App’x 538, 540 (5th Cir. 2018) (quoting Martin v.

Franklin Cap. Corp., 546 U.S. 132, 141, 126 S.Ct. 704 (2005)).

46 Id. (quoting Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000)).

47 Riverside Const. Co. v. Entergy Miss., Inc., 626 F. App’x 443, 445 (5th Cir. 2015) (citing Valdes, 199

F.3d at 293).

48 R. Doc. 5-1 at 5.

she believes removal was untimely, and no other allegations of untimeliness appear

anywhere else in Maurice’s Motion.

To the extent Maurice intended to seek fees and costs based on lack of diversity

jurisdiction, the Court likewise denies Maurice’s request. Winn Dixie raised a

legitimate, albeit unsuccessful, basis for amount in controversy. That the Court

ultimately disagreed with Winn Dixie’s interpretation of the allegations in Maurice’s

Petition and the summary judgment evidence produced by Winn Dixie does not, by

itself, render Winn Dixie’s removal objectively unreasonable. The Court therefore

denies Plaintiffs request for attorney’s fees and costs.

IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that Maurice’s Motion to Remand

is GRANTED.

IT IS FURTHER ORDERED that this matter is REMANDED to the Civil

District Court for the Parish of Orleans, State of Louisiana.

IT IS FURTHER ORDERED that Maurice’s request for attorney’s fees and

costs is DENIED.

New Orleans, Louisiana, November 13, 2024.

Ohad B Vottic

WENDY B./VITTER

United States District Judge

49 Tn its Notice of Removal, Winn Dixie contends that it was served on August 15, 2024, and the Notice

of Removal filed on September 10, 2024. See R. Doc. 1 at 7 20-21.

11