Darensburg v. NGM Insurance Company et al

Filing 11

ORDER & REASONS: denying 6 Motion to Remand to State Court. Signed by Judge Carl Barbier on 8/13/14. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DARENSBURG

CIVIL ACTION

VERSUS

NO: 14-1391

NGM INSURANCE COMPANY ET AL.

SECTION: "J”(2)

ORDER AND REASONS
Before the Court is the Motion to Remand to State Court
(Rec.

Doc.

Defendants

6)

filed

NGM

Technologies,

by

Plaintiff

Insurance

Inc.

(Indoor

June

Company
Air)'s

Berry

(NGM)

Darensburg

and

opposition

Indoor

thereto.

and
Air

(Rec.

Doc.8) Having considered the motion and memoranda of counsel, the
record, and the applicable law, the Court finds that the motion
should be DENIED for the reasons set forth more fully below.
PROCEDURAL HISTORY AND BACKGROUND FACTS
This

litigation

commenced

when

on

December

11,

2013,

Plaintiff filed a Petition for Damages in state court. (Rec. Doc.
1-2) In the petition, Plaintiff alleged that on January 15, 2013,
she

was

stopped

at

a

stop

sign
1

in

Gretna,

Louisiana,

when

Defendant

Rafael

Rosario,

Jr.,

rear-ended

her

while

he

was

driving a vehicle owned by Defendant Indoor Air. Id. As a result,
Plaintiff alleged that she suffered "multiple injuries to the
body trunk, spine and extremities, including but not limited to
her neck, right shoulder, arm, and low back with shooting pain
into her buttock and leg." Id. at 2. Plaintiff sought damages for
"physical

pain

and

suffering,

mental

anguish,

permanent

disability, medical expenses past, present and future, loss of
income past, present and future, loss of earning capacity, loss
of enjoyment of life, property damage, towing, storage, . . .
depreciation, loss of use, rental, [and loss of consortium]." See
id. In accordance with Louisiana law, Plaintiff in her petition
did not specify the numerical value of the claimed damages. See
LA. CODE CIV. PROC. art. 893. The petition also did not include a
statement that the amount sought was above or below the federal
jurisdiction threshold.
On February 11, 2014, Defendants served interrogatories on
Plaintiff in which Defendants requested an itemized, quantified
damages figure. On February 17, 2014, Plaintiff's counsel sent
Defendants' counsel an email containing the medical records and
bills

from

the

Ochsner

emergency

room;

Plaintiff's

treating

neurosurgeon, Dr. Najeeb Thomas; and the Movement Science Center.

2

(Rec.

Doc.

Defendants

1-3,
that

p.

1)

The

Plaintiff

email

was

also

scheduled

informed
to

counsel

undergo

for

shoulder

surgery with another doctor. Id. Plaintiff subsequently responded
to Defendants' February 11th interrogatories on April 29, 2014.
In her response, Plaintiff first objected to the request for a
specification of all damages being sought, but did provide an
itemization of medical expenses totaling $21,149.80. (Rec. Doc.
8, p. 2) Plaintiff did not thereafter supplement this response as
her expenses grew. Id.
After

Defendants

received

medical

authorizations

from

Plaintiff on or about May 1, 2014, they sought medical records
directly from Plaintiff's health care providers. Id. at 3. On May
21, 2014, Defendants for the first time received medical records
that revealed the cost of the shoulder surgery, which came to
more than $17,500. Id. When combined with the other medical bill
records, the cost of Plaintiff's medical treatment rose to more
than $44,000. Id. Consequently, Defendants filed their Notice of
Removal on June 13, 2014. Id.
LEGAL STANDARD
A defendant may remove to federal court any civil action
filed in state court over which the federal court would have
original jurisdiction. Mumfrey v. CVS Pharmacy, Inc., 719 F.3d

3

392, 397 (5th Cir. 2013)(citing 28 U.S.C. § 1332(a)). "A federal
district court has subject matter jurisdiction over a state claim
when the amount in controversy is met and there is complete
diversity of citizenship between the parties." Id. The current
amount in controversy requirement is $75,000. Id.
The procedure for removal of civil actions derives from 28
U.S.C.

§

1446.

Section

1446(b)

provides

that

the

notice

of

removal "shall be filed within 30 days after receipt by the
defendant, through service or otherwise, of a copy of the initial
pleading"

if

such

initial

pleading

indicates

that

the

civil

action is removable. Id. § 1446(b)(1).

If it only becomes clear

that

receipt

the

action

is

removable

after

of

"an

amended

pleading, motion, order or other paper," then the notice of
removal

"may

be

filed

within

30

days

[of]

receipt"

of

that

document. Id. § 1446(b)(3).
The United States Court of Appeals for the Fifth Circuit has
held that the initial pleading triggers "the thirty-day removal
period under [Section 1446(b)(1)] only where the initial pleading
'affirmatively reveals on its face that the that the plaintiff is
seeking damages in excess of the minimum jurisdictional amount of
the federal court.'" Mumfrey, 719 F.3d at 399 (quoting Chapman v.
Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992)). The Fifth

4

Circuit has "specifically declined to adopt a rule which would
expect defendants to 'ascertain[] from the circumstance[s] and
the initial pleading that the [plaintiff] was seeking damages in
excess

of

the

minimum

jurisdictional

amount."

Id.

Thus,

a

plaintiff may not rely on a defendant's subjective knowledge from
outside the initial pleading to render the action removable. See
id. at 399-400. Indeed, the Fifth Circuit espouses a bright line
rule under which Plaintiff must include in the initial pleading
either the exact damages amount or "a specific allegation that
damages are in excess of the federal jurisdictional amount" to
trigger the removal clock. Id. at 399 (quoting Bosky v. Kroger
Tex., LP, 288 F.3d 208, 210 (5th Cir. 2002)).
When the initial pleading does not affirmatively reveal that
the case is removable, the removal clock is triggered only when
an

amended

pleading

or

other

paper

subsequently

enables

defendant to ascertain that the action is removable. See

a
28

U.S.C. § 1446(b)(3). To trigger the removal clock, however, the
"information supporting removal contained in the other paper must
be unequivocally clear and certain." Fortenberry v. Prine, No.
2:14-CV-56-KS-MTP, 2014 WL 2993668, at *2 (S.D. Miss. July 2,
2014)(quoting Bosky, 288 F.3d at 211)(internal quotation marks
omitted). Other paper describing injuries and other damages that

5

seem likely to exceed the amount in controversy requirement, but
which do not show unequivocally that the requirement is met, are
insufficient to trigger the removal clock. See id. at *4.
DISCUSSION
Plaintiff first seems to argue that her December 11, 2013,
original Petition for Damages indicated that her damages were
extensive enough to exceed the $75,000 threshold for federal
jurisdiction, rendering the action removable. (Rec. Doc. 6-1, p.
2) As such, Defendants' Notice of Removal, filed more than thirty
days after receipt of the petition, was untimely. Alternatively,
Plaintiff argues that the February 17, 2014, email contained
sufficient information regarding her injuries to allow Defendants
to ascertain that the amount of damages would exceed $75,000,
thereby triggering the removal clock. Id. at 2-6. In so arguing,
Plaintiff

relies

in

particular

on

the

fact

that

the

email

revealed she was scheduled for shoulder surgery and was receiving
treatment for spinal bulging. Id. at 2. Thus, Defendants would
have had to file their Notice of Removal within thirty days of
receipt of the email for the Notice to be timely. See id. at 4.
Because they did not, Plaintiff argues that the removal was
untimely and this Court lacks jurisdiction. Id.
Defendants

argue

that

neither

6

the

initial

Petition

for

Damages nor any other paper since has made it "unequivocally
clear and certain" that the amount in controversy requirement was
met. (Rec. Doc. 8, p. 1) Consequently, the removal clock was
never triggered, and the June 13, 2014, removal was timely.
First, the initial Petition for Damages did not include a damages
figure

or

an

assertion

that

the

amount

sought

exceeded

the

federal jurisdictional threshold. Id. at 2. Second, no document
or

other

paper

subsequently

clarified

controversy exceeded the threshold. Id.
February

17,

2014,

email

did

not

that

the

amount

in

Plaintiff's counsel's

trigger

the

removal

clock

because the attached medical bills did not reveal that damages
exceeded
regarding

the

threshold.

Plaintiff's

Id.

at

injuries

5-6.

The

similarly

information
did

not

therein

trigger

the

removal clock, because if Defendants must interpret records or
conduct quantum research to determine whether the threshold is
met, then the amount in controversy is not clear and unequivocal.
Id. at 6-7. Further, Plaintiff has not provided Defendants with
an itemized and quantified list of all damages. Instead, in her
interrogatories response of April 29, 2014, Plaintiff provided
only a list of medical expenses totaling $21,149.80. Id. Finally,
Plaintiff has refused to provide a settlement demand, which would
be indicative of the amount in controversy. Id. at 3. Defendants

7

therefore

insist

that

their

Notice

of

Removal

cannot

be

considered untimely.
Plaintiff's motion presents two issues. First, it requires
the Court to examine whether Plaintiff's Petition for Damages
revealed on its face that the action was removable. Second, it
requires the Court to determine whether the February 17, 2014,
email made it sufficiently clear that the damages figure in the
civil action exceeded the federal jurisdictional threshold amount
and, thus, triggered the removal clock. The Court will consider
each in turn.
First, the Court finds that Plaintiff's original Petition
for Damages did not "affirmatively reveal[] on its face that the
that

[Plaintiff

sought]

damages

in

excess

of

the

minimum

jurisdictional amount of the federal court." See Mumfrey, 719
F.3d at 399 (internal quotation marks omitted). Under the Fifth
Circuit's bright line rule, Plaintiff must include in the initial
pleading "a specific allegation that damages are in excess of the
federal jurisdictional amount" to trigger the removal clock. Id.
(quoting Bosky, 288 F.3d at 210). Plaintiff did not include such
a statement. Therefore, Plaintiff's Petition for Damages did not
trigger the removal clock.
Second, the Court finds that the February 17, 2014, email

8

did not make it unequivocally clear and certain that the action
fulfilled the amount in controversy requirement. In Fortenberry,
the United States District Court for the Southern District of
Mississippi

found

that

discovery

responses

indicating

that

a

plaintiff was claiming at least $54,520 in damages and would
claim more as medical bills mounted did not unequivocally show
that the action would meet the federal jurisdictional threshold.
2014 WL 2993668, at *4. Similarly, here, the February 17, 2014,
email, which revealed accrued expenses of less than $12,000 and
suggested that those expenses would increase over time, did not
unequivocally show that the amount in controversy requirement was
met. (Rec. Doc. 1, p. 3) Although it is true that in Fortenberry,
unlike here, the plaintiff "did not claim any mental or emotional
injury, and it [was] not unequivocally clear that she claimed any
future pain and suffering or future lost wages," Defendants could
not have known upon receipt of the email that total damages would
meet the federal threshold. See id. Plaintiff refused to provide
Defendants with an estimate of her damages in excess of the
limited medical expenses she revealed to them. Plaintiff should
not be permitted to benefit from her vague (or nonexistent)
responses to Defendants' several inquiries. See Johnson v. Ark.
Freightways, Inc., 69 F.3d 536 (5th Cir. 1995). Because the

9

February 17, 2014, email did not make it unequivocally clear and
certain

that

the

action

satisfied

the

amount

in

controversy

requirement, it did not trigger the removal clock.1 Consequently,
the Court concludes that Defendants timely filed their Notice of
Removal on June 13, 2014.2
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion to Remand to
State Court (Rec. Doc. 6) is DENIED.
New Orleans, Louisiana, this 13th day of August, 2014.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

1

For the same reasons, the Court agrees with Defendants that the April 29,
2014, interrogatory responses did not make it unequivocally clear and certain
that the action satisfied the amount in controversy requirement.
2

The Court is mindful that a contrary holding could encourage premature
removals in the future–a result the Fifth Circuit in Chapman expressly sought to
avoid. See Mumfrey, 719 F.3d at 399.

10