Bealer et al v. Cardinal Health 200, LLC et al

Filing 21

ORDER REMANDING CASE TO STATE COURT. Signed by Judge Helen G. Berrigan on 7/19/13. (Attachments: # 1 Remand Letter)(plh, )(cc: 21st JDC w/letter)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

NIKKI F. BEALER, ET AL

CIVIL ACTION

VERSUS

NO. 13-2812

CARDINAL HEALTH 200, LLC, ET AL

SECTION “C” (5)

ORDER AND REASONS1
This removed matter comes before the Court on the issue whether the jurisdictional amount
and complete diversity of citizenship existed at the time of removal. Having reviewed the record,
the memoranda of counsel, and the applicable law, the Court has determined that remand is
appropriate for the following reasons.
In the state court petition, the plaintiffs seek damages allegedly caused by an accident that
occurred on April 20, 2012. Rec. Doc. 1-1, p. 5-8. In May, 2013, this matter was removed on the
basis of diversity jurisdiction. Rec. Doc. 1. The parties were instructed that they may not consent
to subject matter jurisdiction in this Court.
The Fifth Circuit has advised the district courts that they should ensure that the federal
jurisdictional minimum is established. Simon v. Wal–Mart Stores, Inc., 193 F.3d 848, 850 (5th
Cir.1999); see also Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir.1999). The removing
party's bare assertions of the amount in controversy do not suffice. Asociacion Nacional de
Pescadores A Pequena Escala O Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia,
S.A., 988 F.2d 559, 566 (5th Cir.1993), cert. denied, 114 S. Ct. 685 (1994), abrogated on other
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Kayla Lawrence, a second-year student at Tulane University Law School, assisted in the
preparation of this Order

grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998). Because Louisiana law does
not permit a plaintiff to specify the numerical value of claimed damages in her petition, the
removing party must show by a preponderance of the evidence that the minimum amount exists.
Luckett, 171 F.3d at 298; see also La.Code Civ. P. art. 893 (West 2012). This showing may be made
by: (1) demonstrating that it is facially apparent that the claims are likely above the jurisdictional
minimum; or (2) setting forth the facts in controversy that support a finding of the jurisdictional
minimum. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882-83 (5th Cir. 2000). It is the removing
party's burden "both to allege with sufficient particularity the facts creating jurisdiction, in view of
the nature of the right asserted, and, if appropriately challenged, or if the inquiry be made by the
court of its own motion, to support the allegation." St. Paul Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283, 296, 58 S. Ct. 586, 594, 82 L. Ed. 845, n.10 (1938) (citing McNutt v. General Motors
Corp., 298 U.S. 178, 182-89, 56 S. Ct. 780, 782-85, 80 L. Ed. 1135 (1936); see also Diefenthal v.
C. A. B., 681 F.2d 1039, 1052 (5th Cir. 1982), cert. denied, 459 U.S. 1107 (1983). Removal
jurisdiction is strictly construed, and remand is appropriate when subject matter jurisdiction is
doubtful. Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013)
The Defendants have not met their burden to show that the jurisdictional amount is facially
apparent, nor have they set forth the facts supporting a finding of the jurisdictional minimum. In
response to the Court's request for affirmative proof of damages, Defendants Cardinal Health 200,
LLC and Greenwich Insurance Company (collectively, "Defendants") referenced a document from
the workers' compensation insurer providing a total of $18,919.48. Rec. Doc. 12, p. 4; Rec. Doc. 122, Exh. 2. They additionally refer to a document in which the Plaintiff alleged injuries to multiple
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parts of her body, but the document does not specify the types of Plaintiff's alleged injuries, the
extent of her injuries, or any potential surgeries. Rec. Doc. 12, p. 4-5; Rec. Doc.12-3, Exh. 3. While
the Defendants assert that "it is more than reasonable to conclude that the damages sought by
Plaintiffs will exceed the jurisdictional limits," the standard requires proof. Rec. Doc. 12, p. 5. If the
Court were to rely on these documents, federal jurisdiction would be based on speculation or
consent, and neither is permitted. The Defendants also argue that it is facially apparent from the
Plaintiff's state court petition "that the claims are likely to exceed $75,000," but the petition does not
allege specific injuries. Rec. Doc. 12, p. 5. Fifteen months after the accident, the record lacks any
evidence of specific injuries or final prognoses.
In support of diversity jurisdiction, Defendant Albert Perry has submitted a Payment History
showing that medical expenses pertaining to the treatment of Plaintiff Nikki Bealer totals $22,798.00
for the period April 2012 through June 2013. Rec. Doc. 20-1, Exh, 1. The document demonstrates
that during this period Plaintiff Nikki Bealer received medical treatment from Occupational Health
Services, Southern Orthopaedic Specialists, a neurologist, a physical therapist, and Advanced
Neurodiagnostic Center. Id. The document does not, however, specify injuries, potential surgeries,
or whether additional treatment is needed. Because the document only provides proof of expenses
that do not exceed the minimum jurisdictional amount, Defendant Perry has not satisfied his burden.
Id.
Based on the record and the law, the Court finds that the Defendants have not established
the jurisdictional amount. Moreover, at this time, complete diversity does not exist between the
parties, as Defendant Perry and Plaintiffs are Louisiana residents. Rec. Doc. 1-1, p. 5.
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Accordingly,
IT IS ORDERED that this matter is REMANDED to the 21st Judicial District Court for the
Parish of Tangipahoa, State of Louisiana, for lack of jurisdiction under 28 U.S.C. § 1447(c)
New Orleans, Louisiana, this 19th day of July, 2013.

________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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