Thompson v. Acceptance Indemnity Insurance Company et al
Filing
14
ORDER denying 4 Motion to Remand to State Court; denying 7 Motion to Strike. Signed by Judge Nannette Jolivette Brown on 12/29/2014. (cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THOMPSON
CIVIL ACTION
VERSUS
CASE NO. 14-1424
ACCEPTANCE INDEMNITY INSURANCE
COMPANY et al.
SECTION: “G”(3)
ORDER
Before the Court is Plaintiff Wesley Thompson’s (“Thompson”) “Motion to Remand”1 and
“Motion to Strike Defendants’ Untimely Filed Memorandum and/or Alternatively to Consider
Plaintiff’s Reply Memorandum.”2 Having considered the motions, the memoranda, the record and
the applicable law, the Court will deny both motions.
I. Background
This litigation arises out of an automobile collision that occurred on or about June 20, 2013,
wherein Thompson’s vehicle was allegedly struck in the rear by a vehicle owned and operated by
Defendant Billy Jordan (“Jordan”) and insured by Defendant Acceptance Indemnity Insurance
Company (“Indemnity Insurance”) (collectively, “Defendants”).3 Thompson alleges that the accident
was caused by the negligence of Jordan.4 There appears to be no dispute that Thompson is a citizen
of Louisiana, Jordan is a citizen of Mississippi, and Indemnity Insurance is a Nebraska corporation.5
1
Rec. Doc. 4.
2
Rec. Doc. 7.
3
Rec. Doc. 1-1 at p. 4.
4
Id. at p. 5.
5
See id.
1
On January 23, 2014, Thompson sent a settlement demand letter to Defendants, offering to
resolve all claims in this matter for the total amount of $80,880.6 The parties did not enter into the
proposed settlement, and on May 1, 2014, Thompson filed suit against Defendants in the Civil
District Court for the Parish of Orleans.7 Defendants were served on May 19, 2014.8 Defendants
removed the case to federal court on June 18, 2014, alleging that this Court has diversity jurisdiction
pursuant to 28 U.S.C. §§ 1332 and 1441.9
On July 14, 2014, Thompson filed the pending Motion to Remand, along with a stipulation
dated June 23, 2014, wherein he states that:
[Thompson] stipulates and agrees that he waives all rights to and will make no
attempt to enforce and/or collect any judgment in excess of a total of $75,000.00 for
all claims, attorney’s fees, or any other incidental expenses rendered against any
defendant, their officers, directors, stockholders, agents, servants, employees and
insurers, and including any and all incidental claims, claims for loss of consortium,
etc.10
Defendants filed a memorandum in opposition to the motion to remand on August 12, 2014.11 On
August 14, 2014, Thompson filed a “Motion to Strike Response/Memorandum in Opposition to
Motion by Wesley Thompson,”12 which was set for submission on September 3, 2014. Thompson
filed a “Supplemental and Amending Memorandum in Support of Motion to Remand”13 on
6
Rec. Doc. 1-4.
7
Id.
8
Id. at p. 2.
9
Rec. Docs. 1-4; 1.
10
Rec. Doc. 4-2 at p. 2.
11
Rec. Doc. 5.
12
Rec. Doc. 7.
13
Rec. Doc. 12.
2
November 7, 2014. Defendants have not filed any subsequent memoranda in this case.
II. Motion to Strike Defendants’ Untimely Filed Memorandum
A.
Parties’ Arguments
Thompson moves to strike Defendants’ memorandum in opposition to his motion to
remand14 because it was filed on August 12, 2014, six days after the matter was set to be heard.15
Alternatively, he requests the Court to construe his Motion to Strike as a reply memorandum in
further support of his Motion to Remand. Thompson avers that he made a demand of $80,880
against Defendants, who responded with an offer of $14,000.16 He contends that he subsequently
orally lowered the demand to $75,000, and that on March 20, 2014, Defendants made a written offer
of $15,500.17 According to Thompson, “[t]his provides evidence that more than three months before
the filing of removal, the defendants were aware that the amount in controversy was less than
$75,000.”18
Thompson argues that the jurisdictional facts must be made at the time of removal when, in
this case, he had already lowered his demand to $75,000.19 Thompson further contends that “a court
may consider post-removal evidence that clarifies the jurisdictional facts as they existed at the time
14
Rec. Doc. 5.
15
Rec. Doc. 7 at p. 1.
16
Rec. Doc. 7-1 at p. 2.
17
Id. at pp. 1–2.
18
Id. at p. 3.
19
Id. (citing De Aguilar v. Boeing Co. 47 F.3d 1404, 1412 (5th Cir. 1995).
3
of removal.”20 Accordingly, Thompson avers, his June 23, 2014 stipulation21 may be considered
because it is “post-removal evidence” that further clarifies the facts in this case.22 Finally, Thompson
argues that:
[Defendants were] aware that the amount in controversy was less than $75,000.00
more than three months before filing for removal. They could have settled the claim
at anytime before the claim being filed for $75,000.00, but chose not to do so.
Therefore, at the time of removal there was a ‘legal certainty’ that the amount in
controversy was less than $75,000.00.23
Defendants have filed no memoranda in opposition to Plaintiff’s Motion to Strike.
B.
Law and Analysis
Local Rule 7.5 of the Eastern District of Louisiana requires that memoranda in opposition
to a motion be filed eight days prior to the date set for hearing on the motion. Although Thompson’s
Motion to Remand was set for hearing on August 6, 2014, Defendants inexplicably waited until
August 12, 2014 to file their “Opposition to Plaintiff’s Motion to Remand.”24 The Court would be
well within its discretion to strike Defendants’ memorandum as dilatory. However, because the
pending Motion to Remand concerns the Court’s subject matter jurisdiction over this case, and
because Defendants, as the removing party, bear the burden of showing that federal jurisdiction
exists,25 it would not be in the best interests of justice or judicial economy to strike Defendants’
memorandum without first considering the legal arguments that Defendants present. The Court will
20
Id. (citing St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1254 & n. 18 (5th Cir. 1998)).
21
Rec. Doc. 4-2.
22
Rec. Doc. 7-1 at p. 3.
23
Id. at pp. 3–4.
24
Rec. Doc. 5.
25
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
4
therefore deny Thompson’s Motion to Strike, and will instead construe Thompson’s motion as a
reply memorandum.
III. Motion to Remand
A.
Parties’ Arguments
1.
Thompson’s Arguments in Support of Remand
Thompson contends that this Court lacks subject matter jurisdiction over this case because
“[a]lthough the parties are diverse, the amount in controversy is clearly less than $75,000.”26
Thompson concedes that he made a pre-petition demand for $80,880 from Defendants, but argues
that he “[knew] full well that the defendant was not going to pay it.”27 He avers that:
Prior to filing an Answer, undersigned counsel discussed this case with defense
counsel; [sic] informed him of these negotiations; [sic] and the injuries; [sic] and
advised that not only was removal inappropriate, but that he would enter into a formal
stipulation admitting as much. With both attorneys leaving town, the stipulation could
not be signed and given to defense counsel timely, and the removal was filed
(presumably) in an abundance of caution to avoid deadline issues.28
Thompson points to his June 23, 2014 stipulation as evidence that the amount in controversy does
not exceed $75,000.29
2.
Defendants’ Arguments in Opposition to Remand
In opposition to Thompson’s Motion to Remand, Defendants contend that “[i]f Plaintiff is
seeking to recover past, present, and future medical expenses, as well as lost wages and property
26
Rec. Doc. 4-1 at p. 1.
27
Id. at p. 5.
28
Id. at p. 2.
29
Id. (citing Rec. Doc. 4-2).
5
damage, then the damages may very well exceed the required amount in controversy.”30 Defendants
cite two cases which, they contend, “demonstrate[] that the awards for this type of case could very
well exceed $75,000.31 Defendants additionally argue that Thompson told a claims adjuster that “on
a soft-tissue basis ALONE, the case should be worth at least $20,000 but that he needed to give some
consideration for the disc bulges.”32 Defendants also contend that Thompson’s pre-petition demand
for $80,880 establishes that the amount in controversy exceeds the jurisdictional minimum.33 Finally,
Defendants aver that once jurisdiction is established, subsequent events that reduce the amount in
controversy to less than $75,000 generally do not divest the Court of jurisdiction.34 Since “the value
of the amount in controversy was unequivocally $80,880 at the time of removal,” according to
Defendants, Thompson’s stipulation “is too little too late.”35
3.
Thompson’s Arguments in Further Support
In further support of his motion, Thompson submits that “there is another lawsuit arising out
of the same accident involving the same attorneys and the same parties in the Civil District Court for
the Parish of Orleans, Case No. 2014:5671 entitled “Crystal Deruise vs. [sic] Acceptance Indemnity
Insurance Company, et al [sic].”36 Thompson does not provide the Court with any additional
30
Rec. Doc. 5 at p. 3.
31
Id. (citing Gurley v. Encompass Insurance, 985 So.2d 299 (La. App. 4 Cir. 2008); Woolfork v. Trism, Inc.,
976 So.2d 216 (La. App. 4 Cir. 2008)).
32
Id. at p. 3 (citing Rec. Doc. 4-1 at p. 2).
33
Id. at p. 2 (citing Rec. Doc. 1-4).
34
Id. at p. 3.
35
Id.
36
Rec. Doc. 12.
6
information about this case, or explain why or how it should impact the Court’s determination of the
instant motion.
B.
Amount in Controversy Requirement
Motions to remand from a federal district court to a state court are governed by 28 U.S.C. §
1447(c). Section 1447(c) provides, in part: “If at any time before the final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.”37 Section 1441(a)
permits removal of “any civil action brought in a State court of which the district courts of the United
States have original jurisdiction” which includes diversity jurisdiction.38 For diversity jurisdiction to
exist, the parties’ citizenship must be completely diverse and the amount in controversy must exceed
$75,000.39 The parties here do not contest that complete diversity of citizenship exists, but only
whether the amount in controversy requirement is satisfied.
Generally, the amount of damages sought in the petition constitutes the amount in
controversy, so long as the pleading was made in good faith.40 “Thus, in the typical diversity case,
the plaintiff remains the master of his complaint.”41 Louisiana law ordinarily does not permit
plaintiffs to plead a specific amount of money damages.42 A Louisiana plaintiff is required, however,
to state “a general allegation that the claim exceeds or is less than the requisite amount” if he wishes
37
28 U.S.C. § 1447(c).
38
28 U.S.C. §§ 1441(a) and 1332(a).
39
28 U.S.C. § 1332(a).
40
Allen, 63 F.3d at 1335 (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).
41
Id.
42
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.”).
7
to establish “the lack of jurisdiction of federal courts.”43 Even then, 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 because these general allegations “will not be
binding on [a plaintiff’s] recovery under Louisiana law.”44 Courts treat such general allegations as
stating an “indeterminate amount of damages.”45
In such instances, the Fifth Circuit requires the removing defendant to prove by a
preponderance of the evidence that the amount in controversy exceeds $75,000.46 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 facts in dispute that support a finding that the
jurisdictional amount is satisfied.47 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 $75,000.48 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.49 If the defendant meets its burden of
43
Id.
44
McCord v. ASI Lloyds/ASI Underwriters, 2013 WL 1196671, at *2 (E.D. La. Mar. 22, 2013) (Vance, J.)
(citing Mouton v. Meritplan Ins. Co., 2010 WL 2978495, at *2 n. 15 (E.D.La. July 20, 2010) (treating a general
allegation in a plaintiff's petition that damages were less than $75,000 as alleging an indeterminate amount)).
45
Id. (citation omitted); see also Hammel v. State Farm Fire & Cas. Co., 2007 WL 519280, at *3 (E.D. La. Feb.
14, 2007) (Vance, J.) (treating plaintiffs’ allegation that their “claim does not exceed $75,000” in their petition as
alleging an “indeterminate amount of damages”)).
46
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)).
47
Allen, 63 F.3d at 1335.
48
De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
49
Allen, 63 F.3d at 1335.
8
showing the requisite amount in controversy, the plaintiff can defeat removal only by establishing
with legal certainty that the claims are for less than $75,000.50
C.
Analysis
Thompson’s petition does not allege that his claims are above or below the federal
jurisdictional requirement, nor does it state the actual damages allegedly sustained by Thompson.
Instead, Thompson alleges that he is entitled to the following categories of damages: (1) medical
expenses (past, present, and future); (2) mental anguish (past, present, and future); (3) pain and
suffering (past, present, and future); (4) wage loss; (5) property damage; (6) transportation expense;
(7) loss of use; (8) loss of enjoyment of life; and (9) loss of earning capacity.51 The inclusion of
categorical claims of damages, without identifying the specific physical injuries that Thompson
allegedly suffered as a result of the accident, is of little use to the Court to determine whether it is
facially apparent from the petition that the jurisdictional minimum has been met.52 Based on the
vague allegations in the petition and the absence of any information regarding the actual damages that
Thompson asserts are applicable, the amount in controversy is not apparent from the face of the
petition.
Since it is not “facially apparent” from Thompson’s petition that his damages will exceed the
jurisdictional minimum, the Court must next consider whether Defendants have met their burden of
proving, through summary judgment-type evidence, that the amount in controversy in this matter is
50
De Aguilar, 47 F.3d at 1412.
51
Rec. Doc. 1-1 at p. 5.
52
See, e.g., Creppel v. Fred’s Stores of Tennessee, Inc., 2013 WL 3490927, at *4 (E.D. La. July 10, 2013)
(Barbier, J.) (“Plaintiffs’ petition is ambiguous as to whether Plaintiffs’ damages would exceed $75,000, because
Plaintiffs merely pleaded the usual and customary damages set forth by personal injury plaintiffs.”).
9
likely to exceed the jurisdictional minimum.53 As evidence of the amount in controversy, Defendants
point to the pre-petition demand letter sent by Thompson to Defendants, wherein Thompson offers
to settle the pending suit for $80,800.54 In that letter, Thompson’s counsel extensively addresses
Thompson’s physical injuries, treatment, and medical expenses, with references to supporting
documentation.55
Although the Fifth Circuit Court of Appeals has definitively held that a settlement demand
letter may be considered an “other paper” which commences the running of the period for filing a
notice of removal under 28 U.S.C. § 1446(b), it has not conclusively addressed the issue of whether
a pre-petition settlement demand letter can be considered relevant evidence of the amount in
controversy. However, it can be inferred from several Fifth Circuit cases that such a practice is
permissible when the settlement offer reflects an honest assessment of the value of the plaintiff’s
claims.56 Furthermore, a number of district courts within the Fifth Circuit have looked to pre-petition
settlement demand letters as “relevant evidence” of the amount in controversy.57
53
Allen, 63 F.3d at 1335.
54
Id.
55
Rec. Doc. 1-4.
56
See Hartford Insurance Group v. Lou–Con Inc., 293 F.3d 908 (5th Cir.2002) (the “serious nature of the
allegations” raised in a settlement demand letter and the proposed settlement amount were considered in making the
jurisdictional amount determination); Wilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir.1994) (“Because the record contains
a letter, which plaintiff’s counsel sent to defendants stating that the amount in controversy exceeded $50,000, it is
‘apparent’ that removal was proper”); see also Pollet v. Sears Roebuck and Co., 2002 WL 1939917, *1 (5th Cir. 2002)
(noting that several of its sister courts have considered settlement offers or demands in connection with the jurisdictional
amount determination, finding that while the settlement offer itself “may not be determinative,” it may “count [ ] for
something” and may be considered relevant if it appears “to reflect a reasonable estimate of the plaintiff's claim.”).
57
See, e.g. , Creppel v. Fred's Stores of Tennessee, Inc., CIV.A. 13-734, 2013 WL 3490927 (E.D. La. July 10,
2013) (Barbier, J.) (denying remand where plaintiff’s pre-petition settlement demand letter assessed the value of the case
at $80,000); Soileau v. Louisville ladder Inc., 2008 WL 1924234, at *2 (W.D.La. Apr. 28, 2008) (granting remand where
pre-petition settlement demand was for $28,392); Lemus v. Intercontinental Hotels Corp., 2000 WL 526872, at *3 (E.D.
La. May 1, 2000) (Clement, J.); Bourg v. Fireman's Fund Ins. Co., 1999 WL 335636, at *2 (E.D. La. May 24, 1999)
(Clement, J.); Fairchild v. State Farm Mut. Automobile Ins. Co., 907 F.Supp. 969, 970 (M.D. La. 1995) (Polozala, J.)
10
In the present case, Thompson has not argued in his motion to remand that the settlement
demand was inflated or that it was not an honest assessment of his damages. In light of the
specificity of the demand letter, the supporting documentation with respect to Thompson’s medical
injuries, and the fact that Thompson has not argued that the damages set forth in the letter were
incorrect, the Court finds that the pre-petition settlement demand letter is relevant “summary
judgment type” evidence of the amount in controversy at the time of removal.58 Thompson argues
that the demand letter is irrelevant to the amount in controversy because the parties engaged in
subsequent settlement negotiations; however, this allegation is wholly unsupported by actual
evidence. Accordingly, the Defendants have accordingly shown by a preponderance of the evidence
that the amount in controversy exceeds $75,000.
At this juncture, Thompson must show with legal certainty that his claim is for less than
$75,000 if the Court is to remand this action. Thompson may establish such legal certainty “by filing
a binding stipulation” that limits recovery to less than $75,000.59 However, “[w]hile post-removal
affidavits may be considered in determining the amount in controversy at the time of removal, such
affidavits may be considered only if the basis for jurisdiction is ambiguous at the time of removal.”60
(denying remand where pre-petition settlement demand was for $110,000).
58
See, e.g., Creppel v. Fred's Stores of Tennessee, Inc., CIV.A. 13-734, 2013 WL 3490927 (E.D. La. July 10,
2013) (Barbier, J.); Carver v. Wal–Mart Stores, Inc., 2008 WL 2050987 (M.D. La. May 13, 2008) (Noland, Mag.);
Lemus v. Intercontinental Hotels Corp., 2000 WL 526872, at *3 (E.D. La. May 1, 2000) (Clement, J.); Bourg v.
Fireman's Fund Ins. Co., 1999 WL 335636, at *2 (E.D. La. May 24, 1999) (Clement, J.); Fairchild v. State Farm Mut.
Automobile Ins. Co., 907 F.Supp. 969, 970 (M.D. La. 1995) (Polozala, J.).
59
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 724 (5th Cir. 2002) (citing De Aguilar v. Boeing
Co., 47 F.3d 1404, 1412 (5th Cir. 1995)).
60
Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000) (holding that a court may only consider
a post-removal stipulation or affidavit if the basis for jurisdiction is ambiguous at the time of removal); De Aguilar v.
Boeing Co., 47 F.3d 1404, 1406 (5th Cir. 1995) (“Post-removal affidavits sometimes can be relevant where the
jurisdictional amount question is unresolved”); Corkern v. Outback Steakhouse of Florida, Inc., 2006 WL 285994, at
*2 (E.D. La. Feb. 6, 2006) (Vance, J.); Guillory v. Chevron Stations, Inc., 2004 WL 1661201 (E.D.La. 2004)(Given that
11
Thompson first argues that on February 26, 2014, he orally reduced his settlement offer to
$75,000 and stated that he was willing to negotiate further.61 In a sworn affidavit dated August 14,
2014, Thompson’s attorney, Robert P. Charbonnet, Jr., states that:
On the 26th day of February, 2014, [Charbonnet] spoke to Mr. Alan Knott, a claims
adjuster for defendant, Acceptance Indemnity Insurance Company. During that
conversation Mr. Charbonnet reduced his settlement offer to $75,000.00 and stated
that he was willing to negotiate further.62
This affidavit, however, has little value because it is not a sufficient binding stipulation. It indicates
only that Thompson would be willing to accept a lower settlement award, not that Thompson has
waived entitlement to recover damages in excess of $75,000 in the event that he is awarded that
amount in state court. A Louisiana state court can award all damages to which it feels a plaintiff is
entitled, regardless of what is plead in the petition.63 Accordingly, the Court finds that the August 14,
2014 affidavit is insufficient to meet Thompson’s burden of showing with legal certainty that his
claim is below the federal jurisdictional requirement.64
Thompson additionally points to his post-removal stipulation as evidence that his claim is
below $75,000. The Fifth Circuit has held that post-removal affidavits may be considered only if
the amount in controversy was not facially apparent from the complaint and the defendant’s inability to show by a
preponderance of the evidence that more than $75,000 was in controversy, the court credited the plaintiff’s post-removal
stipulation); Easley v. Pace Concerts, 1999 WL 649632 (E.D.La. 1999).
61
Rec. Doc. 7-4.
62
Id.
63
See La. C. Civ. P. art. 862 (“a final judgment shall grant the relief to which the party in whose favor it is
rendered is entitled, even if the party has not demanded such relief in his pleadings”).
64
See Onstott v. Allstate Ins. Co., 2006 WL 2710561, at *2 (E.D.La Sept. 20, 2006 (Vance, J.) finding no
binding stipulation when plaintiff did not waive entitlement to recover damages in excess of the jurisdictional amount);
Crosby v. Lassen Canyon Nursery, Inc., 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 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”).
12
the basis for jurisdiction is ambiguous at the time of removal.65 This is because once the district
court’s jurisdiction is established, subsequent events that reduce the amount in controversy to less
than $75,000 generally do not divest the court of diversity jurisdiction.66 Plaintiffs wishing to remain
in state court and comply with state rules of civil procedure may prevent removal by filing a binding
stipulation or affidavit with their complaints, so long as the stipulation establishes to a “legal
certainty” that the federal amount in controversy is not present.67 The stipulation must be irrevocable
on the plaintiff’s part, and not represent an attempt to “manipulate their state pleadings to avoid
federal court while retaining the possibility of recovering greater damages in state court following
remand.”68 The stipulation must also occur pre-removal, since post-removal stipulations generally
have no effect.69
In this case, the Court declines to consider Thompson’s post-removal stipulation for two
reasons. First, the stipulation was filed days after removal, not with Thompson’s petition. It
accordingly does not establish to a legal certainty that the federal amount in controversy was not
present at the time of removal.70 Second, jurisdiction was not ambiguous at the time of removal
65
Id. (holding that a court may only consider a post-removal stipulation or affidavit if the basis for jurisdiction
is ambiguous at the time of removal); De Aguilar v. Boeing Co., 47 F.3d 1404, 1406 (5th Cir. 1995) (“Post-removal
affidavits sometimes can be relevant where the jurisdictional amount question is unresolved”); Corkern v. Outback
Steakhouse of Florida, Inc., 2006 WL 285994, at *2 (E.D. La. Feb. 6, 2006) (Vance, J.); Guillory v. Chevron Stations,
Inc., 2004 WL 1661201 (E.D.La. 2004)(Given that the amount in controversy was not facially apparent from the
complaint and the defendant’s inability to show by a preponderance of the evidence that more than $75,000 was in
controversy, the court credited the plaintiff’s post-removal stipulation); Easley v. Pace Concerts, 1999 WL 649632
(E.D.La. 1999).
66
Gebbia v. Wal Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000).
67
De Aguilar, 47 F.3d at 1412.
68
Id.
69
Gebbia, 233 F.3d at 883.
70
Rec. Doc. 1.
13
because Thompson’s pre-petition demand letter established by a preponderance of the evidence that
the amount in controversy exceeds $75,000.
Even if the Court did consider the post-removal stipulation, remand would still be denied.
Thompson had ample opportunity prior to filing his petition to stipulate that the amount in
controversy in this case does not exceed the jurisdictional minimum. Despite apparently discussing
the possibility of a stipulation with Defendants months prior to filing his petition,71 Thompson failed
to actually stipulate to the amount in controversy until after Defendants removed the action to federal
court. Considering both the specificity of the pre-petition demand letter and Thompson’s unexplained
delay in filing his stipulation, it appears that his post-removal stipulation is merely an impermissible
attempt to deprive this Court of jurisdiction that has already vested.72
Finally, Thompson submits that remand is appropriate because “there is another lawsuit
arising out of the same accident involving the same attorneys and the same parties in the Civil District
Court for the Parish of Orleans.”73 However, Thompson provides no further elaboration of the facts
71
Rec. Doc. 7-4.
72
See Nelson v. Nationwide Mut. Ins. Co., 192 F.Supp.2d 617, 620 (E.D. La. 2001) (Fallon, J.) (considering
post-removal stipulation where the amount in controversy at the time of removal was ambiguous, but concluding that
the stipulation constituted “an attempt to voluntarily reduce the amount in controversy below the jurisdictional limit”
in contradiction to an interrogatory response by plaintiff stating that his general damages was $250,000).
73
Rec. Doc. 12.
14
of the pending lawsuit or why Thompson believes that the cases are related. Thompson’s vague
reference to “another lawsuit” is insufficient to meet his burden of showing with legal certainty that
his claim is below the federal jurisdictional requirement.74
IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Strike75 is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Remand76 is DENIED.
29th
NEW ORLEANS, LOUISIANA, this ________ day of December, 2014.
____________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
74
See Onstott v. Allstate Ins. Co., 2006 WL 2710561, at *2 (E.D.La Sept. 20, 2006 (Vance, J.) finding no
binding stipulation when plaintiff did not waive entitlement to recover damages in excess of the jurisdictional amount);
Crosby v. Lassen Canyon Nursery, Inc., 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 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”).
75
Rec. Doc. 7.
76
Rec. Doc. 4.
15
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