McCord et al v ASI Lloyds

Filing 9

ORDER AND REASONS denying 7 Motion to Remand. Signed by Chief Judge Sarah S. Vance on 3/22/13. (jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CLARENCE W. MCCORD, JR. &
WANDA DALE GUILLERA

CIVIL ACTION

VERSUS

NO: 13-126

ASI LLOYDS/ASI UNDERWRITERS

SECTION: R(2)

ORDER AND REASONS
Plaintiffs move to remand their case to state court for lack
of federal jurisdiction.1 For the following reasons, plaintiffs'
motion is DENIED.
I.

BACKGROUND
On April 23, 2010, plaintiffs' home was damaged in a

windstorm.2 Plaintiffs filed an insurance claim with their
insurer, ASI Lloyds, but ASI Lloyds denied the claim.3 On January
31, 2012, Plaintiffs filed this action in state court against ASI
Lloyds seeking damages "all of which total less than Fifty
Thousand Dollars ($50,000.00)."4 In response to a discovery
interrogatory, plaintiff Guillera specified that in addition to
property damage, her damages included $90,000 for medical
expenses, $25,000 for lost income, $200,000 for pain and

1

R. Doc. 7.

2

R. Doc. 1-2 at 1.

3

Id.

4

Id. at 2.

suffering, and $200,000 for loss of consortium.5 Defendant
removed the case to federal court on January 23, 2013.6
Plaintiffs move to remand because they claim the amount in
controversy is less than $75,000 and that this Court lacks
jurisdiction.7
II.

STANDARD

A.

REMOVAL
A defendant generally may remove a state court civil action

to federal court if the federal court has original jurisdiction
over the action. 28 U.S.C. § 1441(a); Syngenta Crop Prot., Inc.
v. Henson, 537 U.S. 28, 34 (2002). The removing party bears the
burden of showing that federal jurisdiction exists. Allen v.
R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). To
assess whether jurisdiction is appropriate, the Court considers
the claims in the state court petition as they existed at the
time of removal. Manguno v. Prudential Prop. & Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002). Any ambiguities are construed
against removal because the removal statute should be strictly
construed in favor of remand. Id. Though the Court must remand
the case to state court if at any time before final judgment it
appears that it lacks subject matter jurisdiction, jurisdiction
5

R. Doc. 1-5 at 1.

6

R. Doc. 1.

7

R. Doc. 7.
2

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).
B.

THE AMOUNT IN CONTROVERSY REQUIREMENT
Defendant asserts that the Court has jurisdiction based on

diversity of citizenship. See 28 U.S.C. § 1332. Diversity
jurisdiction exists only when there is complete diversity of
citizenship, and the amount in controversy exceeds $75,000.
White v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir. 2003).
Because the parties do not dispute that they are citizens of
different states, the Court need only consider whether the amount
in controversy requirement is met.
Under Fifth Circuit law, a removing defendant’s burden of
showing that the amount in controversy is sufficient to support
federal jurisdiction differs depending on whether the plaintiff’s
complaint alleges a specific amount of monetary damages. Allen,
63 F.3d at 1335. When the plaintiff alleges a damage figure in
excess of the required amount in controversy, “that amount
controls if made in good faith.” Id. (citing St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)). If a
plaintiff pleads damages less than the jurisdictional amount,
this figure will also generally control and bar removal. Allen,
63 F.3d at 1335. “Thus, in the typical diversity case, the
plaintiff remains the master of his complaint.” Id.

3

Here, however, plaintiffs filed their complaint in Louisiana
state court, and Louisiana law ordinarily does not permit
plaintiffs to plead a specific amount of money damages. See La.
Code Civ. Proc. art. 893(A)(1) (“No specific monetary amount of
damages shall be included in the allegations or prayer for relief
of any original, amended or incidental demand.”). Louisiana law
does require a plaintiff to state "a general allegation that the
claim exceeds or is less than the requisite amount" to establish
"the lack of jurisdiction of federal courts." Id. Nevertheless, a
general allegation that a plaintiff's claims are above or below
the federal jurisdictional requirement is not dispositive of
whether the amount in controversy requirement is met. This is
because these general allegations "will not be binding on [a
plaintiff's] recovery under Louisiana law." Mouton v. Meritplan
Ins. Co., No. 10-1643, 2010 WL 2978495, at *2 n.15 (E.D. La. July
20, 2010) (citing Pierce v. State Farm Fire & Cas. Co., No. 097442, 2010 WL 1817799, at * 2 (E.D. La. Apr. 30, 2010)). Courts
treat these general allegations as stating an "indeterminate
amount of damages." Mouton, 2010 WL 2978495, at *2 & n.15
(treating a general allegation in a plaintiff's petition that
damages were less than $75,000 as alleging an indeterminate
amount); see Hammel v. State Farm Fire & Cas. Co., Nos. 06-7470,
06-9615, 2007 WL 519280, at *3 (E.D. La. Feb. 14, 2007) (treating
plaintiffs' allegation that their "claim does not exceed $75,000"

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in their petition as alleging an "indeterminate amount of
damages"). Accordingly, plaintiffs have alleged an indeterminate
amount of damages in their petition.
When, as here, the plaintiffs have alleged an indeterminate
amount of damages, the Fifth Circuit requires the removing
defendant to prove by a preponderance of the evidence that the
amount in controversy exceeds $75,000. Simon v. Wal-Mart Stores,
193 F.3d 848, 850 (5th Cir. 1999); Allen, 63 F.3d at 1335
(quoting De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.
1993)). A defendant satisfies this burden either by showing that
it is facially apparent that the plaintiffs’ claims likely exceed
the jurisdictional amount or by setting forth the facts in
dispute that support a finding that the jurisdictional amount is
satisfied. Allen, 63 F.3d at 1335.
The defendant must do more than point to a state law that
might allow plaintiff to recover more than the jurisdictional
minimum; the defendant must submit evidence that establishes that
the actual amount in controversy exceeds $75,000. De Aguilar v.
Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). When the
“facially apparent” test is not met, it is appropriate for the
Court to consider summary–judgment-type evidence relevant to the
amount in controversy at the time of removal. Allen, 63 F.3d at
1336. If the defendant meets its burden of showing the requisite
amount in controversy, the plaintiff can defeat removal only by

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establishing with legal certainty that the claims are for less
than $75,000. De Aguilar, 47 F.3d at 1412.
Post-removal affidavits may be considered only in limited
situations. If the amount in controversy is ambiguous at the time
of removal, the Court may consider a post-removal stipulation,
but only to determine the amount in controversy at the time of
removal. See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883
(5th Cir. 2000) (citing Associacion Nacional de Pescadores v. Dow
Quimica de Colombia S.A., 988 F.2d 559, 565 (5th Cir. 1993)
(explaining that in determining whether remand is proper, the
court can consider an affidavit “clarify[ing] a petition that
previously left the jurisdictional question ambiguous.”)). If,
however, the amount in controversy is clear from the face of the
complaint, post-removal affidavits, stipulations, and amendments
reducing the amount do not deprive the district court of
jurisdiction. Id. (citing St. Paul Mercury Indem. Co., 303 U.S.
at 292).
III. DISCUSSION
As explained above, plaintiffs' petition alleged an
indeterminate amount of damages. Defendant, then, must submit
evidence that proves by a preponderance of the evidence that the
amount in controversy exceeds $75,000. See Hammel, 2007 WL 519280
at *3.

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A.

DEFENDANT HAS SHOWN THAT THE AMOUNT IN CONTROVERSY EXCEEDS
$75,000
Defendant points to plaintiff Guillera's response to a

discovery interrogatory as proof of the amount in controversy. In
Guillera's response, she itemized her damages as $90,000 for
medical expenses, $25,000 for lost income, $200,000 for pain and
suffering, and $200,000 for loss of consortium, in addition to
previously submitted property damage.8 This amount exceeds the
$75,000 amount in controversy requirement.
Plaintiffs argue that Guillera was only "puffing" and that
her response should not be considered in determining the amount
in controversy. Plaintiffs rely on Gwyn v. Wal-Mart Stores,
Incorporated, 955 F. Supp. 44 (M.D.N.C. 2010). In Gwyn the Court
did not consider a plaintiff's settlement offer when determining
the amount of controversy because "counsel naturally will try to
inflate its value." Gwyn, 955 F. Supp. at 46. Even if there were
binding Fifth Circuit authority holding that settlement offers
may not be considered when determining the amount in controversy,
which plaintiff has not cited, Guillera was not making a
settlement offer. Instead, she was asked to "[i]temize the
damages you contend you have sustained as a result of the
accident, by stating the dollar amount you contend you are

8

R. Doc. 1-5 at 1.
7

entitled to for each separate element of damages sought."9
Responses to interrogatories are "summary-judgment-type
evidence," and may be considered when calculating the amount in
controversy. See White v. FCI USA, Inc., 319 F.3d 672, 675-76
(5th Cir. 2003) (per curiam) (finding that the amount in
controversy requirement was met after considering plaintiff's
response to interrogatories itemizing her damages); Cutrer v.
Scottsdale Ins. Co., No. 08-1658, 2009 WL 2448047, at *5 (E.D.
La. Aug. 6, 2009) (relying on plaintiff's response to discovery
requests when determining that the amount in controversy likely
exceeded $75,000).
Because plaintiffs' own interrogatory responses claim
damages far above $75,000, defendant has shown by a preponderance
of the evidence that the amount in controversy exceeds $75,000.
To succeed now on their motion to remand, plaintiffs must show
with legal certainty that their claims are less than $75,000.
Hammel, 2007 WL 519280 at *3.
B.

PLAINTIFFS DO NOT PROVE WITH LEGAL CERTAINTY THAT THEIR
CLAIMS ARE LESS THAN $75,000
Plaintiffs have submitted an affidavit "reaffirm[ing]" that

their claim "is limited to the total of Fifty Thousand Dollars
($50,000)," as stated in their petition.10 In an attempt to

9

10

Id.
R. Doc. 7-3.
8

explain Guillera's response to the interrogatory, the affidavit
states
Guillera had preexisting medical problems . . . which she
claims were aggravated to some extent by the incident
claimed in this lawsuit, but that most of the medical
expenses, and the elements of damages which she outlined in
her response to Interrogatory No. 1, were preexisting
illnesses that were not caused by this incident. As set
forth above, all of the aggravation or increase of her preexisting illness and medical costs arising therefrom, and
all other damages fall within the limitation of "less than
$50,000", as set forth in . . . the Petition.11
This affidavit does not help plaintiffs for two reasons. First,
it says that most of Guillera's damages claimed in her response
to the interrogatory were not caused by this incident. Therefore,
it is not legally certain that the damages Guillera listed will
not exceed $75,000.
Second, and most importantly, because "Louisiana plaintiffs
are not limited to recovery of the damages listed in their
pleadings, a plaintiff must make a judicial confession by
affirmatively waiving the right to accept a judgment in excess of
$75,000 for his pre-removal state court pleadings and
stipulations to bind him." Griffin v. Ga. Gulf Lake Charles, LLC,
562 F. Supp. 2d 775, 779 (W.D. La. 2008). Plaintiffs do not state
that they will not accept an amount that exceeds $75,000;
accordingly, their affidavit is insufficient. See Id. (finding no
express waiver when plaintiff does not renounce an award in

11

Id.
9

excess of $75,000); Onstott v. Allstate Ins. Co., No. 06-3297,
2006 WL 2710561, at *2 (E.D. La. Sept. 20, 2006) (finding no
binding stipulation when plaintiff did not waive entitlement to
recover damages in excess of the jurisdictional amount); cf.
Hammel, 2007 WL 519280 at *3 (finding a binding stipulation when
"the plaintiffs aver[red] in their affidavit that '[n]either our
lawyer nor we will accept an amount that exceeds $75,000'").
Plaintiffs' affidavit simply asserts that their damages fall
within the $50,000 allegation in their petition, and that their
petition "is binding upon them."12 This assertion is not a
stipulation and is an incorrect statement of the law. As
discussed above, plaintiffs' allegations in their petition are
not binding on them. See La. Code Civ. Proc. art. 862 ("[A] final
judgment shall grant the relief to which the party in whose favor
is rendered is entitled, even if the party has not demanded such
relief in his pleadings and the latter contain no prayer for
general and equitable relief.").
Plaintiffs' affidavit does not establish with legal
certainty that their claims are less than $75,000. See Crosby v.
Lassen Canyon Nursery, Inc., No. Civ. A. 02-2721, 2003 WL
22533617, at *3 (E.D. La. Nov. 3 2003) (finding that plaintiffs'
affidavit agreeing "not to seek damages in excess of $75,000"
insufficient because "plaintiffs are not limited to recovery of

12

R. Doc. 7-3 at 2.
10

the damages requested in their pleadings," and they did not
"stipulate that they would not accept more than $75,000 if a
state court awarded it"). Accordingly, plaintiffs failed to meet
their burden of establishing with legal certainty that their
claims are less than $75,000. This Court has jurisdiction in this
matter.
IV.

CONCLUSION
Accordingly, plaintiff's motion to remand is DENIED.
New Orleans, Louisiana, this 22ndday of March, 2013.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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