Green v. GEICO General Insurance Company

Filing 7

ORDER & REASONS: denying 5 Motion to Remand. Signed by Judge Carl Barbier on 10/14/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JEFFREY GREEN

CIVIL ACTION

VERSUS

NO: 15-3968

GEICO GENERAL INSURANCE COMPANY

SECTION: "J”(2)

ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 5) filed
by

Plaintiff

Jeffrey

Green

(“Plaintiff”)

and

an

opposition

thereto (Rec. Doc. 6) filed by Defendant GEICO General Insurance
Company

(“GEICO”).

Having

considered

the

motion

and

legal

memoranda, the record, and the applicable law, the Court finds
that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This litigation derives from a July 10, 2013 motor vehicle
accident, in which Plaintiff sustained injuries. (Rec. Doc. 1-1,
at 2.) Plaintiff filed suit against his uninsured/underinsured
motorist carrier, GEICO, on December 30, 2014. (Rec. Doc. 1, at
1.) Plaintiff’s alleged damages included: mental and physical
pain

and

suffering;

medical

expenses,

inconvenience,

loss

of

enjoyment of life, loss of earning capacity, lost wages, bad
faith

penalties

under

Louisiana

Revised

Statute

Title

22,

Section 658 and/or Section 1220, and “all damages allowed under

1

Louisiana law [that] may be proven at the trial of this matter.”
(Rec. Doc. 1-1, at 4.)
Before filing suit, Plaintiff provided GEICO with medical
records and other information about his claim. (See Rec. Doc. 51, at 3, 6-7.) GEICO was served with a copy of Plaintiff’s
Petition

for

Damages

on

January

27,

2015.

Id.

at

1.

After

Plaintiff filed suit, the parties conducted discovery. Plaintiff
provided

more

responses,

information

including

his

to

GEICO

answers

to

through

his

discovery

interrogatories

and

a

deposition. See id. at 9-11. On August 4, 2015, GEICO received
notice that Plaintiff was scheduled for back surgery due to his
injuries.

(Rec.

Doc.

1,

at

2.)

Plaintiff’s

counsel

sent

estimated surgery costs totaling $38,310 to GEICO on August 26.
Id.
Based on this information about Plaintiff’s damages, GEICO
filed a notice of removal in this Court on August 31, 2015. See
id. at 1. GEICO asserted that the federal courts have subject
matter

jurisdiction

over

Plaintiff’s

claim

based

on

United

States Code, Title 28, Section 1332. According to GEICO, Section
1332’s amount in controversy requirement is satisfied based on
Plaintiff’s partial recovery on his claim ($74,100 to date), his
medical expenses, and the $240,900 remaining on his $300,000 per
person uninsured motorist bodily injury limit of liability under
his GEICO policy. Id. at 3-4. GEICO asserts that the August 26
2

correspondence confirmed that the amount in controversy exceeded
$75,000, making removal appropriate at that time. Id. at 4.
On September 28, 2015, Plaintiff filed the instant Motion
to Remand. (Rec. Doc. 5.) GEICO opposed this motion on October
13. (Rec. Doc. 6.)
PARTIES’ ARGUMENTS
Plaintiff
matter

does

jurisdiction

citizens

of

not

contest

over

different

this

that
case

states

and

this

Court

because

the

amount

the
in

has

subject

parties

are

controversy

exceeds $75,000. Instead, Plaintiff argues that GEICO did not
timely remove the case to federal court. The Federal Rules of
Civil Procedure required GEICO to file its notice of removal
within thirty days of the receipt of a pleading or other paper
indicating that the action was removable. Because GEICO filed
its notice of removal on August 31, it must have received such
paper no earlier than August 1, 2015.
Plaintiff

argues

that

GEICO

knew

that

the

action

was

removable more than thirty days before it filed its notice of
removal. 1 First, he contends that removability was apparent based

1

Plaintiff

erroneously

asserts

that

GEICO

must

have

received

notice

of

removability on or before July 31, 2015. (Rec. Doc. 5-1, at 1.) However, the
Federal Rules of Civil Procedure provide that a defendant may remove a case
up to thirty days after receiving such notice. See 28 U.S.C. § 1446(b)(3).

3

on his initial Petition for Damages, meaning that the thirty-day
clock

for

removal

began

running

on

January

27,

2015.

Alternatively, Plaintiff argues that removability was apparent
based on other documents and information provided to GEICO, both
before

and

after

Plaintiff

filed

suit.

GEICO

received

these

documents before August 1, 2015. Because GEICO failed to remove
the case within thirty days of receiving these other papers,
Plaintiff asserts that removal is untimely and a remand to state
court is appropriate.
In its opposition, GEICO argues that removability was not
apparent from either the petition or any other paper received
before

August

1,

2015.

The

petition,

it

asserts,

did

not

affirmatively allege a specific amount of damages or allege that
the amount in controversy exceeded the federal minimum. GEICO
also argues that any papers it received before it was served
with Plaintiff’s petition did not trigger removability according
to

Fifth

documents
clearly

Circuit
and
and

precedent.

information
unambiguously

Finally,

it

received

represent

GEICO

claims

that

the

did

not

amount

in

post-service
that

the

controversy exceeded $75,000. GEICO points out that Plaintiff’s
injuries were of unknown duration and severity until Plaintiff
underwent

surgery

in

August

2015.

According

to

GEICO,

Therefore, GEICO must have received notice of removability no earlier than
August 1, which is thirty days before it filed the notice of removal.

4

removability became apparent when it received an estimate of
$38,310 in medical bills for Plaintiff’s surgery on August 26.
When added to the amounts previously tendered to Plaintiff, the
total value of the claim exceeded $75,000.
LEGAL STANDARD
A defendant may remove a civil action filed in state court
if a federal court would have had original jurisdiction over the
action.

See

28

U.S.C.

§

1441(a).

The

district

courts

have

original jurisdiction over cases involving citizens of different
states

in

exclusive

which
of

the

amount

interest

or

in

controversy

costs.

28

U.S.C.

exceeds
§

$75,000,

1332(a)(1).

The

removing party bears the burden of proving by a preponderance of
the evidence that federal jurisdiction exists at the time of
removal. DeAguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.
1995). The jurisdictional facts supporting removal are examined
as of the time of removal. Gebbia v. Wal-Mart Stores, Inc., 233
F.3d 880, 883 (5th Cir. 2000). Ambiguities are construed against
removal and in favor of remand because removal statutes are to
be strictly construed. Manguno v. Prudential Prop. & Cas. Ins.,
276 F.3d 720, 723 (5th Cir. 2002).
The procedure for removal of civil actions derives from
United

States

provides

that

Code
the

Title
notice

28,
of

Section
removal

1446.
"shall

Section
be

filed

1446(b)
within

[thirty] days after receipt by the defendant, through service or
5

otherwise, of a copy of the initial pleading" if such initial
pleading indicates that the civil action is removable. 28 U.S.C.
§

1446(b)(1).

If

it

only

becomes

clear

that

the

action

is

removable after receipt of "an amended pleading, motion, order
or other paper," then the notice of removal "may be filed within
[thirty] 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 v. CVS
Pharmacy,

Inc.,

719

F.3d

392,

399

(5th

Cir.

2013)

(quoting

Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992)).
The Fifth Circuit has "specifically declined to adopt a rule
[that]

would

expect

defendants

to

'ascertain[]

from

the

circumstance[s] and the initial pleading that the [plaintiff]
was

seeking

amount.’"

damages

Id.

in

(brackets

excess
in

of

the

minimum

original).

Thus,

jurisdictional
a

defendant's

subjective knowledge from outside the initial pleading does not
render

the

action

removable.

See

id.

at

399-400.

The

Fifth

Circuit espouses a bright line rule under which the plaintiff
must include in the initial pleading either the exact damages
amount or "a specific allegation that damages are in excess of
6

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,

motion,

order,

or

other

paper

subsequently enables a defendant to ascertain that the action is
removable.

See

28

U.S.C.

§

1446(b)(3).

Based

on

the

plain

language of Section 1446(b), the Fifth Circuit has held that the
defendant

must

receive

the

other

paper

after

the

original

pleading. Chapman, 969 F.2d at 164. Any information received by
the defendant prior to the service of the initial pleading does
not constitute other paper for removal purposes. See id. On the
other

hand,

correspondence

between

parties

and

discovery

documents may be other paper in some circumstances. Eggert v.
Britton, 223 Fed. App'x 394, 396–97 (5th Cir.2007). The other
paper

conversion

requires

a

voluntary

act

by

the

plaintiff.

S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir.
1996). Thus, evidence of the defendant is not other paper. Id.
To trigger the removal clock, the "information supporting
removal contained in the other paper must be unequivocally clear
and certain." Fortenberry v. Prine, No. 14-56, 2014 WL 2993668,
at *2 (S.D. Miss. July 2, 2014) (quoting Bosky, 288 F.3d at 211)
(internal

quotation

marks

omitted).
7

Other

papers

describing

injuries and other damages that seem likely to exceed the amount
in controversy requirement, but not showing unequivocally that
the requirement is met, are insufficient to trigger the removal
clock. See id. at *4. “Defendant's subjective knowledge cannot
convert

a

non-removable

action

into

a

removable

action.”

Fellowship Missionary Baptist Church v. GuideOne Specialty Mut.
Ins. Co., No. 08-2659, 2008 WL 2951347, at *3 (E.D. La. July 25,
2008) (citing S.W.S. Erectors, 72 F.3d at 494); see Bosky, 288
F.3d

at

209

ascertained

(rejecting

argument

removability

from

that

defendant

discovery

could

response

have

regarding

medical bills, when considered with prayer for other liquidated
damages

in

petition

and

general

knowledge

about

damages

in

similar cases.)
DISCUSSION
A. Petition for Damages
First, Plaintiff argues that the thirty-day removal clock
began running when GEICO was served with his petition on January
27,

2015.

(Rec.

Doc.

5-1,

at

4.)

The

petition

contained

allegations suggesting that Plaintiff had incurred damages in
excess of $75,000. For example, Plaintiff alleged that Louisiana
statutes

imposing

bad

faith

damages

on

insurers

applied

to

GEICO. Id. These laws would allow Plaintiff to receive penalties
in

the

amount

of

double

the

damages

sustained

or

$5,000,

whichever was greater. Id. Also, Plaintiff claimed that GEICO
8

was liable for penalties consisting of half the amount owed by
GEICO to Plaintiff. Id. In addition, Plaintiff requested a jury
trial, which is only available in Louisiana when the amount in
controversy exceeds $50,000. Id. at 5.
However,

Plaintiff

did

not

allege

specifically

that

the

amount in controversy exceeded the minimum amount required to
invoke a federal court’s diversity jurisdiction. Louisiana law
prohibited Plaintiff from alleging a specific amount of monetary
damages, but Plaintiff could have stated that the federal amount
in

controversy

requirement

was

satisfied.

Because

Plaintiff

failed to do so, the thirty-day removal clock did not begin
running when GEICO was served with the petition on January 27,
2015.
B. Other Papers
Second, Plaintiff argues that GEICO received other papers from
which it could have ascertained that the case was removable.
Because GEICO failed to file a notice of removal within thirty
days of receipt of those papers, Plaintiff contends that removal
was untimely. Plaintiff identifies the following other papers:
(1) a “settlement demand” sent by Plaintiff’s counsel to GEICO
on March 7, 2014; (2) a MRI report received by GEICO on February
21,

2014;

(3)

medical

records

from

Southern

Brain

and

Spine

dated September 4, 2013 and received by GEICO on an unknown
date; (4) Plaintiff’s answers to interrogatories propounded by
9

GEICO,

received

on

March

17,

2015;

(5)

medical

records

from

Crescent City Surgical Center, dated February 27, 2015 and March
24, 2015; and (6) Plaintiff’s deposition testimony on July 14,
2015. (Rec. Doc. 5-1, at 5-11.)
The

March

statutory

7

letter

other

and

papers.

the
The

MRI

report

plain

do

language

not
of

qualify

Section

as

1446

provides that the defendant must receive the other paper after
service

of

the

initial

pleading.

Chapman,

969

F.2d

at

164.

Plaintiff’s counsel sent its settlement demand to GEICO on March
7, 2014. GEICO received the MRI report on February 21, 2014.
Plaintiff did not file suit until December 30, 2014 and did not
serve GEICO until January 27, 2015. Because GEICO received these
documents
qualify

in

as

2014,
other

before

Plaintiff

filed

suit,

papers.

Presuming

GEICO

also

they

do

not

received

the

September 4, 2013 records before service of the petition, these
records also were not other papers. Thus, the thirty-day removal
clock did not begin running when Plaintiff filed suit.
Similarly,
responses,

Plaintiff’s

and

other

deposition

do

medical

not

records,

demonstrate

discovery

“unequivocally

clear and certain” removability. See Bosky, 288 F.3d at 211.
First,

the

September

10,

2013

report

reveals

that

Plaintiff

suffered herniated discs in his cervical spine and lumbar spine
as a result of the accident. (Rec. Doc. 5-1, at 7.) Plaintiff
points

to

cases

involving

similar
10

injuries

in

which

the

plaintiff

received

damages

exceeding

$75,000.

Id.

at

7-8.

According to Plaintiff, removability was apparent based on this
record, coupled with knowledge of similar cases. Id. at 7. Also,
the

records

from

Crescent

City

Surgical

Center

show

that

Plaintiff received epidural steroid injections and was charged
$2,955.73. (Rec. Doc. 5-7, at 1-2.)
Second, in his answers to GEICO’s interrogatories, Plaintiff
stated that his cause of action exceeded $50,000. (See Rec. Doc.
5-1, at 9.) Plaintiff argues that GEICO could have ascertained
that the amount in controversy requirement was satisfied based
on this answer and Plaintiff’s demand for bad faith damages in
his petition. Id. Also, Plaintiff provided his annual salary in
his answers to GEICO’s interrogatories. Id. at 10-11. According
to Plaintiff, GEICO’s knowledge about Plaintiff’s salary and his
claim for lost wages gave rise to the inference that Plaintiff’s
claim exceeded $75,000.

See id.

Third, Plaintiff also argues that GEICO knew that Plaintiff
might

undergo

revealed

during

a

lumbar
his

July

miscrodiscectomy
14

deposition.

surgery,
Id.

at

which

11.

he

Finally,

Plaintiff contends that he supplied GEICO with a list of his
medical

providers,

from

whom

GEICO

obtained

medical

records

pursuant to a subpoena duces tecum. Id. at 10. Based on these
records, Plaintiff argues, GEICO could have ascertained that the
cause of action exceeded $75,000 and the case was removable.
11

However, removability was not unequivocally clear and certain
based on these documents. See Fortenberry, 2014 WL 2993668, at
*4. Plaintiff’s medical records do not qualify as other papers,
even if GEICO received them after service of the petition. The
September 10 records do not include the costs of medical bills,
and

GEICO’s

subjective

knowledge

about

damages

for

similar

injuries is irrelevant to the removal analysis. The Crescent
City

Surgical

Center

records

only

show

$2,955.73

in

medical

expenses. In his answers, Plaintiff merely stated that his cause
of action exceeded $50,000. In his written discovery responses,
Plaintiff provided his yearly salary, which exceeded $75,000,
but he did not state the amount of lost wages he incurred.
Plaintiff’s

deposition

also

did

not

show

damages

exceeding

$75,000. As of the time of his deposition, Plaintiff’s surgery
was uncertain, and his future medical expenses were unknown.
GEICO may have inferred from these documents that the amount
in controversy requirement was satisfied. However, under Fifth
Circuit precedent, the defendant’s ability to infer removability
is not sufficient. GEICO’s subjective knowledge about the amount
in

controversy

removable

one.

did

not

Fellowship

convert

a

Missionary

non-removable
Baptist

case

Church,

to

2008

a
WL

2951347, at *3. Because removability was not unequivocally clear
and certain, the thirty-day clock did not begin running when

12

GEICO

received

these

discovery

responses.

Thus,

GEICO

timely

filed its notice of removal in this Court.
CONCLUSION
Accordingly,
IT

IS

HEREBY

ORDERED

that

Plaintiff’s

Motion

to

Remand

(Rec. Doc. 5) is DENIED.
New Orleans, Louisiana this 14th day of October, 2015.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

13