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
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