Tobin v. Laboratory Corporation of America

Filing 21

ORDER & REASONS denying 10 Motion to Remand to State Court. Signed by Judge Martin L.C. Feldman on 7/22/2015. (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EMILY TOBIN

CIVIL ACTION

v.

NO. 15-1731

LABORATORY CORPORATION OF AMERICA

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiff's motion to remand.

For the

reasons that follow, the motion is DENIED.
Background
This case arises from the medical care that the plaintiff
received at St. Thomas Community Health Center in fall 2014.

Ms.

Tobin had blood drawn by a phlebotomist who is unidentified in her
medical records.

In trying to draw blood, the phlebotomist hit a

nerve in Tobin's arm. Tobin reported the injury to a receptionist at
the Health Center and sought follow-up care at the Health Center and
at the Touro Infirmary Emergency Department. Tobin contends that her
nerve pain was severe when she was injured, and it continues to this
date, interfering significantly with her work as a massage therapist.
Tobin filed suit in Civil District Court for the Parish of
Orleans in April of this year against Laboratory Corporation of
America, the "Jane Doe" phlebotomist who presumably worked for
LabCorp, and St. Thomas Community Health Center.

In its notice of

removal, LabCorp contends that St. Thomas is improperly joined
because its status as a Federally Qualified Health Center requires
1

that the plaintiff exhaust her administrative remedies by filing an
administrative

claim

under

the

Federal

Tort

Claims

Act

before

bringing suit here. The plaintiff does not address this issue in her
motion to remand, leaving only LabCorp and Jane Doe as defendants.
The plaintiff moves for remand contending that: (1) LabCorp has not
identified the defendant "Jane Doe" in response to plaintiff's
requests, because she is a local LabCorp employee who would destroy
diversity; and (2) LabCorp cannot prove by a preponderance of the
evidence that plaintiff's claims exceed $75,000.
I.
Although the plaintiff challenges removal in this case, the
removing defendant carries the burden of showing the propriety of
this Court's removal jurisdiction.

See Jernigan v. Ashland Oil,

Inc., 989 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 868
(1993); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988).
"Because removal raises significant federalism concerns, the removal
statute is strictly construed."
251 (5th Cir. 2008).

Gutierrez v. Flores, 543 F.3d 248,

Further, "any doubt as to the propriety of

removal should be resolved in favor of remand."

Id.

A defendant may generally remove a civil action filed in state
court if the federal court has original jurisdiction over the
case–that is, if the plaintiff could have brought the action in
federal court from the outset.

See 28 U.S.C. § 1441(a). To exercise

diversity jurisdiction, complete diversity must exist between the
plaintiffs and all of the properly joined defendants, and the amount
2

in controversy must exceed $75,000.

See 28 U.S.C. § 1332.

The

plaintiff contends that neither requirement has been met here.
A.
The plaintiff contends that the citizenship of the unidentified
phlebotomist, currently a "Jane Doe" defendant but whom she later
hopes to join as a named defendant, will likely defeat diversity.
The removal statutes states, "In determining whether a civil action
is removable on the basis of the jurisdiction under section 1332(a)
of this title, the citizenship of defendants sued under fictitious
names shall be disregarded."

28 U.S.C. § 1441(b)(1).

Section

1447(e) allows joinder or remand to state court if, after removal,
"the plaintiff seeks to join additional defendants whose joinder
would destroy subject matter jurisdiction."

28 U.S.C. § 1447(e).

But for now, the Jane Doe defendant remains a Jane Doe, and the
plaintiff has not attempted to join her as a named defendant.

Thus,

her citizenship cannot be considered. Any dispute as to her identity
should be resolved in a motion to compel discovery, not in a motion
to remand.
B.
To

determine

whether

it

has

jurisdiction,

the

Court

must

consider the allegations in the state court petition as they existed
at the time of removal.

See Manguno v. Prudential Prop. & Cas. Ins.

Co., 276 F.3d 720 (5th Cir. 2002); see also Cavallini v. State Farm
Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995).

3

Louisiana law

requires that a plaintiff include "no specific amount of damages" in
her prayer for relief.

LA. CODE CIV. PROC. art. 893.1 When the

plaintiff has, therefore, alleged an indeterminate amount of damages,
the removing party must 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); see also De Aguilar v. Boeing Co.,
47 F.3d 1404, 1412 (5th Cir. 1995).

This showing may be made by

either (1) showing that it is facially apparent that the plaintiff's
claims likely exceed $75,000 or (2) setting forth "summary judgment
type evidence" of facts in controversy that support a finding of the
jurisdictional amount. Manguno v. Prudential Prop. & Cas. Ins. Co.,
276 F.3d 720, 723 (5th Cir. 2002);
171 F.3d 295, 298 (5th Cir. 1999).

Luckett v. Delta Airlines, Inc.,
"[I]f it is facially apparent

from the petition that the amount in controversy exceeds $75,000 at
the time of removal, post-removal affidavits, stipulations, and
amendments reducing the amount do not deprive the district court of
jurisdiction."

Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883

(5th Cir. 2000).

If the removing defendant cannot show that the

amount in controversy is facially apparent, it may be able to prove
"by setting forth the facts in controversy–preferably in the removal
petition, but sometimes by affidavit–that support a finding of the
requisite amount."

Luckett, 171 F.3d at 298.

1

If the petition is

"[I]f a specific amount of damages is necessary to establish
. . . the lack of jurisdiction of federal courts due to insufficiency
of damages . . . a general allegation that the claim exceeds or is
less than the requisite amount is required." LA. CODE CIV. PROC. art.
893.
4

ambiguous

as

to

whether

the

alleged

damages

surpass

the

jurisdictional amount in controversy, the Court may consider a postremoval affidavit that clarifies the original complaint. Asociación
Nacional de Pescadores a Pequeña Escala o Artesanales de Colombia
(ANPAC) v. Dow Química de Colombia, 988 F.2d 559, 565 (5th Cir.
1993), abrogated on other grounds by Marathon Oil Co. v. Ruhgras, 145
F.3d 211, 214 (5th Cir. 1998), rev'd on other grounds, 526 U.S. 574
(1999).
If the removing party satisfies its burden, the plaintiff can
only defeat removal by showing that it is "legally certain that his
recovery will not exceed the amount stated in the state complaint."
De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995); see St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) ("It
must appear to a legal certainty that the claim is really for less
than the jurisdictional amount to justify dismissal."). Absent a
statute that restricts recovery, "[l]itigants who want to prevent
removal must file a binding stipulation or affidavit with their
complaints; once a defendant has removed the case, St. Paul makes
later filings irrelevant."

De Aguilar, 47 F.3d at 1412 (quoting In

re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curiam)).
Here, the defendant has proven by a preponderance of the
evidence that the amount in controversy exceeds $75,000.

The

plaintiff has claimed extensive injuries and damages and has not
stipulated

to

seeking

less

than

petition, she alleges that she:
5

$75,000.

In

the

state-court

sustained severe, painful, and permanently debilitating
damages . . . includ[ing] but . . . not limited to: loss of
physical capacity; past and future pain and suffering; keen
mental anguish; emotional distress; embarrassment and
humiliation; loss of the enjoyment of life, including the
inability to live independently; past medical expenses;
future medical expenses; past and future loss of wages;
loss of earning capacity; loss of the chance to a better
medical outcome; and any and all other damages as are
reasonable in the premises.2
These allegedly extensive damages, if proven, would likely exceed
$75,000.

See, e.g., Richey v. Wal-Mart Stores, Inc., 390 F. App'x

375, 379 (5th Cir. 2010) (per curiam) (finding the jurisdictional
threshold satisfied where the plaintiff alleged damages for lost
wages and benefits, loss of future earnings and benefits in the past,
mental anguish in the past and future, prejudgment interest, court
costs, and exemplary damages); Gebbia, 233 F.3d at 883 (affirming the
district court's decision to disregard the plaintiff's post-removal
affidavit and stipulation for damages less than $75,000 because
allegations of damages for medical expenses, physical pain and
suffering, mental anguish and suffering, loss of enjoyment of life,
loss of wages and earning capacity, and permanent disability and
disfigurement

supported

a

substantial

monetary

basis

to

confer

removal jurisdiction); cf. Simon, 193 F.3d at 850-51 (finding no
removal jurisdiction where the complaint alleged only less severe
physical injuries, unidentified medical expenses for one plaintiff,
and loss of consortium for another). Thus, the defendant has carried
its burden.

2

All of which would disadvantage her as a massage therapist.
6

In the motion to remand, however, the plaintiff submits that her
damages are as yet uncertain and that they may not exceed $75,000.
This fails to equate with a legal certainty that her damages will not
exceed the jurisdictional threshold.3
Accordingly, for the foregoing reasons, IT IS ORDERED that the
motion to remand is DENIED.

New Orleans, Louisiana, July 22, 2015

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

3

Quite obviously, if plaintiff agrees that her damages do not
exceed $75,000, she will be inclined to settle her case for the
jurisdictional amount . . . or less, if settlement or mediation is
sought.
7