Kinnard-Owen et al v. Scarborough, et al.

Filing 7

ORDER AND REASONS denying 5 Motion to Remand to State Court. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
EVA KINNARD-OWEN, ET AL.

CIVIL ACTION

VERSUS

NO. 15-2447

JACQUELINE SCARBOROUGH, ET AL.

SECTION “B”(2)

ORDER AND REASONS
I.

NATURE OF MOTION AND RELIEF SOUGHT
Before

the

Court

is

Plaintiffs’,

Eva

Kinnard-Owen

and

Tavion Kinnard, Motion to Remand (Rec. Doc. 5), as well as the
responsive pleadings thereto filed by Defendant, RPM Pizza, LLC
d/b/a Domino’s Pizza (“RPM”) (Rec. Doc. 6). Plaintiff moves the
Court to remand the suit to state court pursuant to 28 U.S.C. §
1332, contending that the matter in controversy does not exceed
the value of $75,000.
IT IS ORDERED that Plaintiffs’ Motion to Remand is DENIED,
as set forth fully below.
II.

FACTS AND PROCEDURAL HISTORY
On

or

about

June

22,

2014,

Plaintiff

Kinnard-Owen

was

driving her 2006 Chevrolet Cobalt in which Plaintiff Kinnard was
a guest passenger. (Rec. Doc. 1-1 at 1). Plaintiff Kinnard-Owen
was traveling eastbound on Marigny Street near Franklin Avenue
in New Orleans, Louisiana, when Defendant Jacqueline Scarborough
(“Scarborough”), while in the course and scope of her employment
with Defendant RPM, suddenly and without warning crashed her own

1

vehicle,

a

2005

Dodge

Grand

Caravan,

into

the

rear

of

the

vehicle of the Plaintiffs. (Rec. Doc. 1-1 at 1-2). Plaintiff
Kinnard-Owen suffered serious and painful personal injuries and
damages, including injuries to her head, back, neck, shoulders,
hips, elbows, and body. (Rec. Doc. 1-1 at 2). Plaintiff Kinnard
suffered

serious

and

painful

personal

injuries

and

damages,

including injuries to her back, neck, shoulders, and body. (Rec.
Doc. 1-1 at 2).
Plaintiffs

filed

a

civil

lawsuit

for

personal

injuries

against RPM, Scarborough, and Affirmative Insurance Company on
May 19, 2015 in the Civil District Court for the Parish of
Orleans. (Rec. Doc. 1 at 2). Defendant RPM was served with that
lawsuit

on

June

4,

2015,

but

service

of

process

was

not

requested on the other Defendants, and Plaintiffs have since
represented that service will not be requested in the future.
(Rec. Doc. 1 at 2).
Defendant RPM is now, and was at the time suit was filed, a
citizen

of

Mississippi.

(Rec.

Doc.

1

at

3).

Plaintiffs

are

citizens of Louisiana. (Rec. Doc. 1 at 3). As such, there is
complete

diversity

under

28

U.S.C.

§

1332,

since

no

other

parties have been properly joined and served. (Rec. Doc. 1 at
3). Defendant RPM states that the multitude of claims for relief
by Plaintiffs make it facially apparent that Plaintiffs’ claims
exceed

$75,000,

so

that

there

2

is

federal

subject

matter

jurisdiction pursuant to

28 U.S.C. § 1332. (Rec. Doc. 1 at 4).

Accordingly, Defendant RPM removed the suit to this Court under
the provisions of 28 U.S.C. § 1441 on July 2, 2015. (Rec. Doc.
1).
III. CONTENTIONS OF MOVANT
Plaintiffs move to remand this matter on the grounds that
they are willing to limit their recovery from RPM to $75,000,
exclusive of interests and costs. Plaintiffs assert that they
would have and will stipulate to such an agreement, so long as
they
of

are
a

not

limited

$15,000

to

a

recovery

settlement

of

Plaintiffs

$60,000.00,
reached

in

with

light
other

parties, prior to removal.

IV.

CONTENTIONS OF OPPONENTS
Defendant

RPM

contends

that

RPM

and

Scarborough,

as

an

employee of RPM, are solidarily liable for Plaintiffs’ injuries
caused while Scarborough was in the scope of her employment with
RPM.

As

such,

Defendant

RPM

should

receive

credit

for

the

$15,000 settlement reached between Scarborough and her insurance
company, Affirmative Insurance Company. With such a credit, RPM
argues that Plaintiffs must be limited to recovery of $60,000 in
order to proceed in state court. With no such stipulation, RPM
believes federal jurisdiction is proper.

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V.

REMOVAL/REMAND STANDARD
“A party may remove an action from state court to federal

court

if

the

action

is

one

over

which

the

federal

court

possesses subject matter jurisdiction.”

Manguno v. Prudential

Prop.

720,

and

Cas.

Ins.

Co.,

276

F.3d

723

(5th

Cir.

2002)(citing 28 U.S.C. § 1441(a)). “The removing party bears the
burden

of

showing

that

federal

jurisdiction

exists

and

that

removal was proper.” Id. (citing De Aguilar v. Boeing Co., 47
F.3d 1404, 1408 (5th Cir. 1995); Jernigan v. Ashland Oil Inc.,
989 F.2d 812, 815 (5th Cir. 1993) (per curiam); Willy v. Coastal
Corp.,

855

F.2d

1160,

1164

(5th

Cir.

1988)).

“To

determine

whether jurisdiction is present for removal, we consider the
claims in the state court petition as they existed at the time
of removal.” Id. (citing Cavallini v. State Farm Mut. Auto Ins.
Co., 44 F.3d 256, 264 (5th Cir. 1995)). “Any ambiguities are
construed against removal because the removal statute should be
strictly construed in favor of remand.” Id. (citing Acuna v.
Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
Federal jurisdiction exists under 28 U.S.C. § 1331 when
there exists a federal question. There is federal jurisdiction
under 28 U.S.C. § 1332 when there is diversity of citizenship
and an amount in controversy that exceeds $75,000. Jurisdiction
must exist at the time notice of removal is filed. Id.
VI.

DISCUSSION

4

As will be discussed below, Plaintiffs’ Motion to Remand
must

fail

for

a

reason

unaddressed

by

both

Plaintiffs

and

Defendant RPM. Simply stated, remand is inappropriate because
federal jurisdiction existed on the face of Plaintiff’s Petition
for

Damages

at

the

time

the

notice

of

removal

was

filed.

Consequently, this Court need not address the issue more heavily
disputed by the parties, that is, the aggregation of claims
against

solidary

obligors

for

purposes

of

determining

the

jurisdictional amount.1
As previously stated, jurisdiction must exist at the time
notice

of

removal

is

filed.

Id.

To

determine

if

federal

jurisdiction is proper, the Court must “consider the claims in
the

state

court

petition

as

they

existed

at

the

time

of

removal.” Id. Thus, it must be determined whether Plaintiffs’
Petition

for

convincing

Damages

basis

for

(Rec.
this

Doc.
Court

1-1)

appears

maintaining

to

provide

jurisdiction,

a
as

“[a]ny ambiguities are construed against removal[.]” Id. Because
Plaintiffs’ Petition for Damages makes clear that the parties
are diverse, as Defendant RPM is a citizen of Mississippi and
Plaintiffs are citizens of Louisiana, this issue need not be
addressed. (Rec. Doc. 1 at 3).

1

Even by Plaintiffs’ own assessment, the value of their claims is more than
$75,000: $15,000 received from co-Defendants plus $75,000 they wish to seek
from the co-Defendants’ employer, Defendant RPM.

5

Plaintiffs’

Petition

for

Damages

alleges

that

Plaintiff

Kinnard-Owen maintained “serious and painful personal injuries
and damages, including, but not limited to, injuries to her
head,

back,

Plaintiff

neck,

Kinnard

shoulders,
“suffered

hips,
serious

elbows,
and

and

body”

painful

and

personal

injuries and damages, including, but not limited to, injuries to
her back, neck, shoulders, and body.”(Rec. Doc. 1-1 at 2). Both
Plaintiffs seek the following remedies for both past and future
damages:

pain

and

suffering,

mental

anguish,

scarring

and

disfigurement, physical impairment, medical expenses, loss of
enjoyment of life, loss of earnings and earning capacity, and
loss of household services. (Rec. Doc. 1-1 at 3).
In their Petition for Damages, Plaintiffs correctly omit a
specific monetary amount, as is mandated by Louisiana law. La.
Code

Civ.

Proc.

Ann.

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.”).
However, Plaintiffs do not, as is required, limit their recovery
so as to preserve jurisdiction in state court. Id. (“[I]f a
specific

amount

jurisdiction

of

of
the

damages
court

is

[or]

necessary
the

lack

to
of

establish
jurisdiction

the
of

federal courts due to insufficiency of damages, . . . a general
allegation that the claim exceeds or is less than the requisite
amount is required.”). In light of Plaintiffs’ extensive claims,

6

and failure to limit their recovery, federal jurisdiction seems
proper at first blush.
Still, the burden of proof remains on Defendant RPM to show
that removal was proper. “Because plaintiffs in Louisiana state
courts, by law, may not specify the numerical value of claimed
damages,

.

.

.

the

removing

defendant

must

prove

by

a

preponderance of the evidence that the amount in controversy
exceeds $75,000.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880,
882 (5th Cir. 2000) (citing Luckett v. Delta Airlines, Inc., 171
F.3d 295, 298 (5th Cir. 1999)). Accordingly, “[t]he defendant
may prove that amount either by demonstrating that the claims
are likely above $75,000 in sum or value, or by setting forth
the facts in controversy that support a finding of the requisite
amount.” Id. at 882-83 (citations omitted). Here, Defendant RPM
has

done

the

former

by

reciting

the

relevant

claims

in

Plaintiffs’ Petition for Damages, and this Court agrees that
such

claims

controversy

make
will

it

“facially

exceed

$75,000

apparent”
for

each

that

the

amount

Plaintiff.

While

in
a

precise determination of damages by this Court is impossible
absent more information, such a holding is not inconsistent with
other precedential cases. See Pollet v. Sears Roebuck & Co., 46
F. App'x 226 (5th Cir. 2002) (holding that district court did
not err in finding that plaintiff’s claims exceeded $75,000 when
plaintiff alleged serious and painful injuries to her face, left

7

elbow, left hand, and tail bone and demanded all such damages
which

are

reasonable,

including

damages

for

past

and

future

medical expenses, lost wages and lost earnings capacity, pain,
suffering and mental anguish, disability, and the loss of life's
pleasures).2
Still, this Court must consider the claims in the state
court petition as they existed at the time of removal, including
any

stipulations

between

the

parties.

Plaintiffs,

in

their

Motion to Remand, assert that they are and were, at the time of
removal, willing to limit their recovery to a stipulated amount
of $75,000, so as to avoid federal jurisdiction. (Rec. Doc. 5 at
1).

Plaintiffs’

whether

it

is

willingness

for

the

to

correct

stipulate,
amount,

has

irrespective
no

bearing

of

under

present circumstances.
This Court may assess the case at the time of removal,3 and,
at the time of removal in this suit, there was no stipulation

2

See also Gebbia, 233 F.3d 880 (5th Cir. 2000) (holding that district court
did not err in finding that plaintiff’s claims exceeded $75,000 when
plaintiff alleged that she sustained injuries in a slip and fall accident to
her right wrist, left knee and patella, and upper and lower back and claimed
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); Luckett v. Delta Airlines, Inc., 171
F.3d 295 (5th Cir. 1999) (holding that district court did not err in finding
that plaintiff's claims exceeded $75,000 because plaintiff alleged damages
for property, travel expenses, an emergency ambulance trip, a six-day stay in
the hospital, pain and suffering, humiliation, and temporary inability to do
housework after hospitalization).
3
It should be noted that efforts to alter or amend jurisdictional amounts
after removal so as to maintain or avoid subject matter jurisdiction are
generally rejected by the courts. Gebbia, 233 F.3d at 883 (citations omitted)
(“[P]ost-removal affidavits, stipulations, and amendments reducing the amount
[in controversy] do not deprive the district court of jurisdiction.”).

8

agreed

upon

by

the

parties.

Accordingly,

the

proposed

stipulation is immaterial and lacks significance in determining
the instant motion, except perhaps to highlight that Plaintiffs
were aware that their claims might exceed $75,000. For these
reasons,

IT IS ORDERED

that Plaintiffs’ Motion to Remand is

DENIED.
VII. CONCLUSION
As

stated

above,

Plaintiffs’

Motion

to

Remand

cannot

succeed because it was facially apparent in Plaintiffs’ Petition
for Damages that federal jurisdiction existed at the time the
notice of removal was filed. The parties’ arguments concerning
the amount of the proposed stipulation (that was never mutually
consented

to)

are

irrelevant,

because

no

stipulation

was

in

effect at the time of removal. Accordingly, IT IS ORDERED that
Plaintiffs’ Motion to Remand is

DENIED, for the reasons set

forth above.
New Orleans, Louisiana, this 14th day of September, 2015.

__________________________________
UNITED STATES DISTRICT JUDGE

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