Dunomes v. Trinity Marine Products, Inc.

Filing 15

ORDER AND REASONS that this matter is REMANDED to the Twenty-Second JudicialDistrict Court for the Parish of St. Tammany. The Clerk must effectuate the remand as soon as possible. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/19/2014. (Attachments: # 1 Remand Letter)(cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM RAY DUNOMES

CIVIL ACTION

VERSUS

NO. 14-1968

TRINITY MARINE PRODUCTS, INC.

SECTION “F”(2)

ORDER AND REASONS
Plaintiff, William Ray Dunomes, originally filed this action against his employer,
Trinity Marine Products, Inc., in the Twenty-Second Judicial District Court for the Parish
of St. Tammany, State of Louisiana. Plaintiff’s one-page petition asserts that he and
Trinity are Louisiana residents. He alleges that his privacy was invaded on two separate
occasions by Trinity supervisors who looked over the top of a bathroom stall while he
was seated on the commode and that Trinity publicized the incidents, causing him public
embarrassment. Dunomes seeks general damages. However, in accordance with
Louisiana law, his petition does not specify any amount of damages. He prays for trial
by jury, “should the amount in controversy so warrant.” Petition for Invasion of Privacy,
Record Doc. No. 1-1.
Trinity removed the petition to this court based exclusively on diversity
jurisdiction. Defendant states in its notice of removal that it is a citizen of Delaware and
Texas. It alleges that the amount in controversy exceeds the jurisdictional threshold of
$75,000 because plaintiff’s prayer for general damages probably includes, but is not

limited to, “injuries to character or reputation, mental or physical pain and suffering and
other losses of lifestyle or enjoyment which cannot be easily quantified.” Notice of
Removal, Record Doc. No. 1 at p. 4. Dunomes did not move to remand the action to
state court.
This matter was referred to a United States Magistrate Judge for all proceedings
and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all
parties. Record Doc. No. 9. At the preliminary conference, I ordered Trinity to
file a memorandum establishing (a) diverse citizenship, (b) jurisdictional
amount, which appears insufficient on the face of the petition, and (c) why
an award of costs, expenses and attorneys fees should not be made pursuant
to 28 U.S.C. § 1447(c) if the court remands this case to state court.
Plaintiff’s counsel stated during the conference that he does not want an
opportunity to file a reply memorandum.
Record Doc. No. 13 at pp. 1-2. Defendant filed a timely Memorandum in Support of
Federal Subject Matter Jurisdiction, supported only by plaintiff’s petition. Record Doc.
No. 14. Dunomes did not file a reply.
Having considered the petition, the record, the arguments of defendant and the
applicable law, and for the following reasons, I find that Trinity has not carried its burden
to show that plaintiff’s petition seeks more than $75,000 in damages, as required for
diversity jurisdiction. Trinity has not asserted and the petition does not reveal any other
basis for federal jurisdiction. Accordingly, this court lacks subject matter jurisdiction
and the action must be remanded to state court.
2

Civil actions originally filed in state court may be removed to a federal court that
would have original jurisdiction. 28 U.S.C. § 1441(a). Actions are removable based on
diversity jurisdiction when 28 U.S.C.§ 1332(a) is satisfied, which requires (1) complete
diversity of citizenship among all properly joined parties and (2) an amount in
controversy (exclusive of interest and costs) that exceeds $75,000. 28 U.S.C. § 1441(b).
“Federal courts are courts of limited jurisdiction.” “They possess
only that power authorized by Constitution and statute, which is not to be
expanded by judicial decree.” The court “must presume that a suit lies
outside this limited jurisdiction, and the burden of establishing federal
jurisdiction rests on the party seeking the federal forum.” In an action that
has been removed to federal court, a district court is required to remand the
case to state court if, at any time before final judgment, it determines that
it lacks subject matter jurisdiction.
Bourne v. Wal-Mart Stores, Inc., 582 F. Supp. 2d 828, 832 (E.D. Tex. 2008) (citing 28
U.S.C. § 1447(c); Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 571 (2004))
(additional citations omitted) (quoting Rasul v. Bush, 542 U.S. 466, 489 (2004); Howery
v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001)) (internal quotations omitted).
The court must examine its jurisdiction whenever jurisdiction appears doubtful.
Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009). “Federal courts ‘must raise and decide
jurisdictional questions that the parties either overlook or elect not to press.’” A.I.M.
Controls, L.L.C. v. Comm’r, 672 F.3d 390, 392 (5th Cir. 2012) (quoting Henderson ex
rel. Henderson v. Shinseki, 562 U.S. 428, 131 S. Ct. 1197, 1202 (2011)).

3

Trinity asserts in its removal notice and court-ordered memorandum that it is a
Delaware corporation with its principal place of business in Texas, making it a citizen
of those two states for diversity purposes. Trinity’s business records filings with the
Louisiana Secretary of State confirm that its domicile address is in Delaware and its
principal business office is in Texas.1 Thus, Trinity is completely diverse from Dunomes,
who is a citizen of Louisiana.
To establish diversity jurisdiction, the petition must also assert an amount in
controversy in excess of $75,000. Plaintiff’s failure to seek remand or to oppose
Trinity’s jurisdictional memorandum cannot establish this element of jurisdiction.
Although plaintiff has not objected to removal on this basis, “a party may
neither consent to nor waive federal subject matter jurisdiction.” “The
removing party bears the burden of showing that federal jurisdiction exists
and that removal was proper.” To determine whether jurisdiction exists,
courts must consider the claim or claims as they existed at the time of
removal. “Any ambiguities are construed against removal because the
removal statute should be strictly construed in favor of remand.”
Borill v. Centennial Wireless, Inc., 872 F. Supp. 2d 522, 527 (W.D. La. 2012) (quoting
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); Simon
v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999)).
The first sentence of Louisiana Code of Civil Procedure article 893(A)(1) prohibits
a plaintiff from pleading a specific amount of monetary damages. Thus, Dunomes’s
1

https://coraweb.sos.la.gov/CommercialSearch/CommercialSearchDetails.aspx?CharterI
D=492980_DFG62 (visited Dec. 11, 2014).

4

petition does not state any damages amount. The second sentence of the article is at issue
in the instant case. Article 893(A)(1) provides:
No specific monetary amount of damages shall be included in the
allegations or prayer for relief of any original, amended, or incidental
demand. The prayer for relief shall be for such damages as are reasonable
in the premises except that if a specific amount of damages is necessary to
establish the jurisdiction of the court, the right to a jury trial, the lack of
jurisdiction of federal courts due to insufficiency of damages, or for other
purposes, a general allegation that the claim exceeds or is less than the
requisite amount is required.
La. Code Civ. P. art. 893(A)(1) (emphasis added). Trinity argues that the emphasized
language requires Dunomes to allege in his petition that his damages are insufficient to
establish diversity jurisdiction and that his failure to include such a statement “creates
a strong presumption in favor of federal court jurisdiction.” Defendant’s memorandum,
Record Doc. No. 14 at p. 3. However, the cases that Trinity cites in support are factually
distinguishable and the supposed “strong presumption,” based on a plaintiff’s failure to
make a procedural statement under state law, is incorrect in light of established law
regarding the limits on federal jurisdiction.
The analytical framework for evaluating jurisdiction of cases where
no monetary amount of damages is asserted (e.g. cases filed in Louisiana
state courts), which are removed to federal court on the basis of diversity,
is as follows:
In such a situation, the removing defendant must prove by a
preponderance of the evidence that the amount in controversy
exceeds $75,000. The defendant may make this showing in
either of two ways: (1) by demonstrating that it is “facially
apparent” that the claims are likely above $75,000, or (2) “by
5

setting forth facts in controversy–preferably in the removal
petition, but sometimes by affidavit–that support a finding of
the requisite amount.”
Borill, 872 F. Supp. 2d at 527-28 (quoting Simon, 193 F.3d at 850); accord Davis v. JK
& T Wings, Inc., No. 11-501-BAJ, 2012 WL 278728, at *2 (M.D. La. Jan. 6, 2012),
report & recommendation adopted, 2012 WL 278685 (M.D. La. Jan. 31, 2012) (citing
Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000); Simon, 193 F.3d at
850; Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999)).
Under the facial apparency method, I find that damages in excess of $75,000 are
not facially apparent in the petition. Dunomes alleges that his privacy was invaded twice
on the same day by two supervisors at Trinity, who separately looked over the top of a
bathroom stall while plaintiff was seated on the commode; that Trinity publicized the
incidents, causing him public embarrassment; and that he suffered general damages.
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.
Id. at *3 (citing Alderdice v. Lowe’s Home Centers, Inc., No. 09-406-C, 2010 WL
371027 (M.D. La. 2010); Nelson v. Wal-Mart Stores, Inc., No. 09-0302, 2009 WL
1098905 (W.D. La. 2009), and numerous cases cited therein; Fontenot v. Granite State
Ins. Co., No. 08 CV 1296, 2008 WL 4822283 (W.D. La. 2008); Bonck v. Marriot Hotels,
6

Inc., No. 02-2740, 2002 WL 31890932 (E.D. La. 2002)). 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 was not ‘facially apparent’
that the amount of damages would exceed $75,000.” Broadway v. Wal-Mart Stores, No.
00-1893, 2000 WL 1560167, at *2 (E.D. La. Oct. 18, 2000) (citing Simon, 193 F.3d at
850, 851; Moore v. J.C. Penny, Inc., No. 00-0083, 2000 WL 385516 (E.D. La. Apr. 13,
2000)). Therefore, even if Dunomes’s general damages include “injuries to character or
reputation, mental or physical pain and suffering and other losses of lifestyle or
enjoyment which cannot be easily quantified,” as Trinity posits in its memorandum, it
is not facially apparent that the amount of damages exceeds $75,000.
Other federal courts sitting in Louisiana have rejected Trinity’s argument that a
mere procedural omission in a state court petition is sufficient evidence that a plaintiff’s
damages meet the jurisdictional amount. “The plaintiff’s omission of the Article 893
allegation [that his damages are insufficient for federal jurisdiction] is not determinative
of the amount in controversy.” Credeur v. York Claim Serv., No. 13-CV-01367, 2013
WL 4814231, at *5 (W.D. La. Sept. 9, 2013), aff’d, 2013 WL 5935477 (W.D. La. Nov. 4,
2013). Another magistrate judge in the Western District of Louisiana explained why the
omission of an article 893 statement is inadequate to establish diversity jurisdiction, as
follows.

7

Defendant also points out that Plaintiff failed to comply with La.
C.C.P. art. 893, which requires a plaintiff to state the amount of damages
when necessary to establish the lack of jurisdiction of federal courts due to
insufficiency of damages. Defendant notes that Plaintiff’s petition does not
include such a statement, and Defendant states that “this Court has held that
the absence of such a statement ‘creates a strong presumption’ in favor of
jurisdiction.”
The undersigned has previously rejected this argument. If parties
may not create subject-matter jurisdiction by express agreement or
stipulation, which is well settled, then the mere inaction of the plaintiff
(though perhaps in contradiction of a state procedural law) cannot give rise
to presumptive federal jurisdiction or satisfy the removing defendant’s
burden. There must be allegations of fact or other evidence in the record
to support a determination of whether the amount in controversy
requirement is met. Mere silence or inaction by the plaintiff, without facts
to suggest the requisite amount in controversy, cannot satisfy the
defendant’s burden. Most Louisiana federal courts have stated that a
plaintiff’s failure to include an Article 893 allegation, alone, is insufficient
to establish the amount in controversy, but the omission is entitled to “some
consideration” in the inquiry.
Lee v. Dillon, No. 12-CV-1413, 2012 WL 3263882, at *2 (W.D. La. Aug. 8, 2012)
(citing Broussard v. Multi-Chem Group, LLC, No. 6:11-cv-01280, 2012 WL 1492855,
at *2 (W.D. La. Mar. 14, 2012); Trahan v. Drury Hotels Co., LLC, No. 11-521, 2011 WL
2470982, at *4 (E.D. La. June 20, 2011); Ford v. State Farm, No. 08-403-JVP-CN, 2009
WL 790150, at *4 (M.D. La. Mar. 28, 2009); Lilly v. Big E Drilling Co., No. 07-1099,
2007 WL 2407254, at *2 (W.D. La. Aug. 20, 2007)) (emphasis added); see also Nabors
Drilling USA, L.P. v. Genex Servs., Inc., No. 08-0738, 2009 WL 2338041, at *2 n.3
(W.D. La. July 29, 2009) (citing Lilly, 2009 WL 790150); Weber v. Stevenson, No. 07595-JJB-DLD, 2007 WL 4441261 (M.D. La. Dec. 14, 2007); Berthelot v. Scottsdale Ins.
8

Co., No. 06-9531, 2007 WL 716126 (E.D. La. Mar. 6, 2007)) (“Most rulings issued by
the United States District Courts sitting in the State of Louisiana have found the failure
to include an Article 893A allegation in the state court petition is not, in and of itself,
determinative of the amount in controversy.”).
The cases that Trinity cites for an allegedly “strong presumption” regarding the
lack of an article 893(A)(1) statement in the petition are not factually on point with the
instant case. Defendants in those cases produced evidence beyond the petition under the
second, alternative method for establishing the jurisdictional amount. When–as here–it
is not facially apparent that plaintiff’s damages are likely to exceed $75,000, defendant
must produce “‘summary-judgment-type evidence’” relevant to the amount in
controversy at the time of removal, which establishes the amount by a preponderance of
the evidence. Malone v. Scottsdale Ins. Co., No. 12-1508, 2012 WL 6632440, at *3
(E.D. La. Dec. 19, 2012) (quoting Davis, 2012 WL 278728, at *2); accord Bonck, 2002
WL 31890932 at *1 (citing De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir.
1995)). Trinity has produced no evidence to carry its burden under this method.
Broadway, one of the cases that Trinity cites, is not on point because defendant
and the court in that case relied on plaintiff’s answers to interrogatories, which stated that
she had suffered several herniated discs and had ongoing physical limitations. The court
reviewed cases in which plaintiffs had been awarded damages in excess of $75,000 for

9

similar injuries. The court also noted plaintiff’s refusal, after filing her motion to
remand, to consent to defendant’s request that she stipulate that the amount in
controversy did not exceed $75,000. Without making any presumption based on the lack
of an article 893 allegation, the court found the evidence sufficient to establish that the
amount in controversy exceeded $75,000. Broadway, 2000 WL 1560167, at *2 (citing
Reid v. Delta Gas, Inc., 837 F. Supp. 751, 752-53 (M.D. La. 1993)).
Similarly, the plaintiff in Reid refused to stipulate that his damages were less than
the jurisdictional amount, which the court considered along with his deposition testimony
and medical evidence to find that his damages most likely exceeded that amount. Reid,
837 F. Supp. at 752-53. Dunomes’s failure to allege a lack of the jurisdictional amount
in his petition is not the same as a refusal to stipulate to that amount. Trinity has
produced no evidence that it asked Dunomes to stipulate that his damages do not exceed
$75,000. Even a refusal to stipulate was not determinative in Broadway and Reid, but
was considered in conjunction with other evidence of the jurisdictional amount, which
does not exist in the instant case.
Trinity also cites the finding in Malone that plaintiff’s omission of any article 893
statement in her state court breach of contract petition “should have alerted Defendant
[her homeowner’s insurer] to the fact that the matter was removable.” Malone, 2012 WL
6632440, at *3. However, the Malone court was not reciting a rule of law with this

10

statement, but was analyzing the facts. The issue in Malone was not whether defendant
could show that the jurisdictional amount was met to warrant removal, but whether
defendant had timely removed the action after receiving plaintiff’s discovery responses,
rather than when it received the petition. Malone admitted in her motion to remand based
on untimely removal that her damages exceeded $75,000. The court found that her
petition sought a sum certain for property damage, plus attorney’s fees and double
damages as a statutory penalty for bad faith failure to adjust her claim, all of which made
it “facially apparent that the matter was removable on the day Defendant was served”
because “the amount in controversy clearly exceeds $75,000.” Id. at *4. The Malone
court’s holding regarding what the insurer should have known from the face of that
particular petition to effect a timely removal is not on point with the instant case. This
court focuses on Trinity’s burden to prove that Dunomes’s damages meet the
jurisdictional amount in the absence of any facial indication that they do.
Finally, Trinity cites Sonnier v. Republic Fire & Cas. Ins. Co., No. 06-1554, 2006
WL 3924238 (W.D. La. Sept. 11, 2006), in support of defendant’s argument that, when
a petition omits an article 893 allegation, “plaintiff has, in effect, conceded in his state
court pleadings that the requisite jurisdictional amount is in controversy. This creates a
‘strong presumption’ in favor of jurisdiction.” Id. at *1-2 (quoting St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 290 (1938)). However, the Supreme Court’s

11

opinion in St. Paul Mercury does not support the concession and presumption for which
Sonnier cited it, and Sonnier cites no other authority for its holding.
In St. Paul Mercury, plaintiff Red Cab Co. filed a breach of contract complaint in
state court against its worker’s compensation insurer, St. Paul Mercury. The complaint
alleged a specific amount of damages that exceeded the federal jurisdictional minimum.
Defendant removed the action based on diversity. Red Cab amended its complaint with
evidence showing that its damages were less than the jurisdictional minimum, but neither
party moved to remand. After a trial, the district court rendered judgment in Red Cab’s
favor for damages that were less than the amount stated in the original complaint. St.
Paul Mercury appealed and the appeals court held that the action should have been
remanded to state court for lack of jurisdiction.
The Supreme Court reversed, holding that “[e]vents occurring subsequent to the
institution of suit which reduce the amount recoverable below the statutory limit do not
oust jurisdiction.” St. Paul Mercury, 303 U.S. at 289-90. “And though, as here, the
plaintiff after removal, by stipulation, by affidavit, or by amendment of his pleadings,
reduces the claim below the requisite amount, this does not deprive the district court of
jurisdiction” that had vested upon removal. Id. at 292.
The Court explained that plaintiff could have originally filed its complaint in
federal court, where, if it later became clear that the amount of damages was not claimed

12

in good faith, the court must dismiss the action for lack of jurisdiction. The Court noted
the possibility in a case originally filed in federal court “that plaintiff and defendant have
colluded to confer jurisdiction by the method of the one claiming a fictitious[ly high]
amount and the other failing to deny the veracity of the averment of amount in
controversy. Upon disclosure of that state of facts the court should dismiss.” Id. at 290.
The Supreme Court distinguished a removed case, in which
[t]here is a strong presumption that the plaintiff has not claimed a large
amount in order to confer jurisdiction on a federal court or that the parties
have colluded to that end. For if such were the purpose suit would not have
been instituted in the first instance in the state but in the federal court. It
is highly unlikely that the parties would pursue this roundabout and
troublesome method to get into the federal court by removal when by the
same device the suit could be instituted in that court.
Id. at 290-91 (footnote omitted) (emphasis added).
The emphasized language in St. Paul Mercury teaches that when a state court
petition alleges more than the jurisdictional minimum, a federal court can presume that
the amount claimed is in good faith and jurisdiction exists. “The reason for this rule is
that when a plaintiff claims damages sufficient to invoke federal jurisdiction, yet chooses
to proceed in state court, there is no danger that the claimed amount has been inflated in
order to confer jurisdiction.” Corkern v. Outback Steakhouse of Fla., Inc., No. 05-5487,
2006 WL 285994, at *2 (E.D. La. Feb. 6, 2006). St. Paul Mercury in no way supports
the presumption for which it is cited in Sonnier that plaintiff concedes that his damages

13

exceed the jurisdictional minimum when his petition contains no specific damages
allegation. Rather, if the petition is silent, “the removing defendant must prove by a
preponderance of the evidence that the amount in controversy exceeds $75,000.” Id.
(citing De Aguilar, 47 F.3d at 1412; Simon, 193 F.3d at 859) (emphasis added).
The “strong presumption” in favor of jurisdiction in Sonnier appears to have been
created by one former magistrate judge in the Western District of Louisiana and adopted
by one district judge in Chambers Med. Found. v. Chambers, No. 2:05 CV 786, 2006 WL
1895479 (W.D. La. Jan. 23, 2006), then repeated by the same magistrate judge in
numerous subsequent opinions. That holding has not been routinely followed, even by
other judges in that court. See Berry v. Swift Leasing Co., No. 2:07 CV 0807, 2007 WL
4276867, at *2 (W.D. La. Nov. 1, 2007) (rejecting report and recommendation by the
same magistrate judge who wrote Chambers Medical Foundation and Sonnier that
applied the same “strong presumption;” distinguishing St. Paul Mercury because the law
when it was decided “required the plaintiff to allege a specific amount of damages, where
in the case at bar, the plaintiff is precluded from making allegations of specific damages
by Louisiana law.” “Although the Magistrate Judge cited St. Paul Mercury . . . , neither
the plaintiff nor this court found any cases which hold that the [petition’s] failure to
affirm that the damages sought are below $75,000 makes it facially apparent that the
requisite amount is in controversy.”).

14

Contrary to the presumption of Sonnier, which is not binding on this district court,
it is clear that this court must presume that a removed suit lies outside its limited
jurisdiction, unless defendant carries its burden to establish jurisdiction, Howery, 243
F.3d at 916, and “there is a presumption against subject matter jurisdiction that must be
rebutted by the removing defendant.” Weber, 2007 WL 4441261, at *2 (citing Coury v.
Prot, 85 F.3d 244, 248 (5th Cir. 1996)) (emphasis added). As two different judges stated
in Lee, 2012 WL 3263882, at *2, and Nabors Drilling, 2009 WL 2338041, at *2 n.3 (and
cases cited by both courts), most federal courts in Louisiana have held that a petition’s
failure to include an article 893 allegation, alone, is insufficient to establish the amount
in controversy. I agree. Trinity has not provided any evidence outside the petition to
carry its burden to prove the damages amount.
Rather than presuming that Dunomes’s silence about damages is a concession that
the jurisdictional amount is met, the lack of any article 893 allegation in the petition is
more likely explained by his (apparently erroneous) averment that both parties are
Louisiana citizens. In that case, article 893(A)(1) does not require Dunomes to negate
the federal jurisdictional amount because no diversity of citizenship exists on the face of
the petition.
Plaintiff’s ambiguous jury demand also supports a finding that his damages are not
likely to exceed $75,000. His petition prays for a trial by jury, “should the amount in

15

controversy so warrant.” Petition for Invasion of Privacy, Record Doc. No. 1-1. To
request a jury trial in Louisiana court, plaintiff’s damages must be at least $50,000. La.
Code Civ. P. art. 1732. The second sentence of article 893(A)(1) requires a petition to
include a general allegation that the claim exceeds that amount to establish the right to
a jury trial. Dunomes’s failure to assert forthrightly in his petition that his damages
exceed the threshold for a jury trial and his equivocation about whether the amount
warrants a jury makes it doubtful that his damages even exceed $50,000.
Finally, my research has located no tort cases decided under Louisiana law that
awarded damages for invasion of privacy higher than $35,000, and that particular case
involved a physical invasion of plaintiff’s bodily integrity. Trinity cites one Louisiana
case, Verneuil v. Poirier, 589 So. 2d 1202 (La. App. 2d Cir. 1991), in which a jury
awarded a hospital employee $75,000 for invasion of privacy after she had surgery in the
hospital where she worked and her male supervisor lifted the sheet covering her to view
her abdominal incision. This invasion of privacy is somewhat similar to what Dunomes
alleges. Significantly, as Trinity candidly admits, the appellate court reduced the jury
award to $15,000 as “the highest possible award within the discretion of the trial court”
when the supervisor’s actions had “caused the plaintiff anger and upset. However, in
cases where the plaintiffs suffered far more serious harm, the awards have been
substantially lower . . . .” Id. at 1205 (citing Turner v. State, 494 So. 2d 1292, 1296-97

16

(La. App. 2d Cir. 1986) (reducing award from $8,500 to $4,000 per plaintiff for invasion
of privacy by male National Guard recruiter who conducted “unauthorized examination
of genitals” of female potential recruits, causing them to suffer embarrassment, but no
serious psychological or long-lasting harm)). Verneuil does not support a finding that
Dunomes’s damages for invasion of privacy would likely exceed $75,000.
In Lugenbuhl v. Dowling, 701 So. 2d 447, 455-56 (La. 1997), the Louisiana
Supreme Court held that a state law cause of action exists for “injury to plaintiff’s
personal dignity and right of privacy” to vindicate a “valuable, although intangible, right,
the mere invasion of which constitutes harm for which damages are recoverable.” The
Supreme Court in that case fixed Lugenbuhl’s damages at $5,000 for “shock and mental
distress” when he learned that his physician had not followed his express wishes during
an operation. Although the doctor had not committed medical malpractice, plaintiff’s
lack of informed consent to the procedure meant that the doctor had invaded his privacy.
In the fairly recent case of Richard v. Colomb, 916 So. 2d 1122 (La. App. 1st Cir.
2005), the court of appeal affirmed an award of $35,000 to plaintiff as “at the high end
of the appropriate range” of damages “for the invasion of privacy and deprivation of her
right to determine whether she should undergo an unnecessary procedure performed
solely for an educational purpose,” when a surgeon took “a stitch on otherwise healthy
fatty tissue solely for the purpose of practicing his technique” after plaintiff’s operative

17

procedure was finished. Id. at 1130. This invasion of bodily privacy was certainly more
egregious than the purely visual invasions and publication of an embarrassing incident
of which Duonomes complains. Richard indicates that a likely damages award for
Dunomes would not exceed $35,000.
Accordingly, I find that Trinity’s assertion that plaintiff’s damages exceed the
jurisdictional amount is unsupported by either the facial allegations of the petition, any
summary-judgment-type evidence or prior damages awards in Louisiana cases. In light
of the well-established requirements to construe jurisdictional statutes strictly and resolve
ambiguities in favor of remand, I find that diversity jurisdiction is lacking and this matter
must be remanded to state court.
IT IS ORDERED that this matter is REMANDED to the Twenty-Second Judicial
District Court for the Parish of St. Tammany. The Clerk must effectuate the remand as
soon as possible.
New Orleans, Louisiana, this

19th

day of December, 2014.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

18