Steed et al v. Chubb & Son, Inc. et al

Filing 21

ORDER& REASONS granting 8 Motion to Remand. Signed by Judge Carl Barbier on 2/2/16. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KELLY STEED ET AL.

CIVIL ACTION

VERSUS

NO: 15-6511

CHUBB NATIONAL INSURANCE
COMPANY ET AL.

SECTION: “J”(5)

ORDER & REASONS
Before the Court is a Motion to Remand (Rec. Doc. 8) filed by
Plaintiffs, Kelly Steed and Tiffany Lecesne, an opposition thereto
(Rec.

Doc.

9)

filed

by

Defendants,

Andrew

Stadnyk

and

Chubb

National Insurance Company, and a reply (Rec. Doc. 20) filed by
Plaintiffs. Having considered the motion and legal memoranda, the
record, and the applicable law, the Court finds that the motion
should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This litigation arises out of Plaintiffs Kelly Steed and
Tiffany Lecesne’s claims for damages following a motor vehicle
accident that occurred on August 27, 2015. (Rec. Doc. 1-2, at 2.)
Plaintiffs allege that they were traveling eastbound in the left
lane of North Broad Street in New Orleans, when Andrew Stadnyk
drove his vehicle from the right lane into the left lane and
collided with them. Id. at 2. On October 30, 2015, Plaintiffs filed
a petition for damages in state court against Andrew Stadnyk and

Chubb National Insurance Company, 1 the insurance company alleged
to have provided insurance over the vehicle operated by Stadnyk.
(Rec. Doc. 1-2, at 1.) Plaintiffs claim that they suffered personal
injuries as a result of the collision. Id. Plaintiffs seek damages
for past and future medical expenses, past and future lost wages,
loss

of

earning

capacity,

past

and

future

physical

pain

and

suffering, past and future mental anguish and suffering, loss of
enjoyment of life, property damage, loss of use of Plaintiffs’
vehicle, rental car expenses, and penalties and attorney fees based
on Defendants’ alleged failure to adjust and pay Plaintiffs’
property damage and rental charges. Id. at 4. In accordance with
Louisiana law, Plaintiffs’ petition did not specify the monetary
value of the claimed damage. La. Code Civ. Proc. art. 893(A)(1).
The petition also did not include a statement that the amount
sought was above or below the threshold for federal jurisdiction.
See id.
On December 4, 2015, Andrew Stadnyk removed the case based on
diversity of citizenship. (Rec. Doc. 1.) Chubb National Insurance
Company filed a consent to removal on December 7, concurring in
the grounds for removal articulated by Stadnyk. (Rec. Doc. 3.)
Although Defendants deny that Plaintiffs suffered damages that

1 Plaintiffs’ petition initially named Chubb & Son, Inc. as a defendant. (Rec.
Doc. 1-2, at 1.) However, on November 16, 2015, Plaintiffs filed an amended
petition, in which “Chubb & Son, Inc.” was corrected to read “Chubb National
Insurance Company.” Id. at 11.

2

exceed the minimum amounts for diversity jurisdiction, Defendants
assert that “Plaintiffs, through the allegations of the Petition,
[are] claiming damages that place more than $75,000, exclusive of
interest and costs, into controversy.” (Rec. Doc. 1, at 3.)
Plaintiffs now seek to remand this case on the grounds that
Defendants failed to establish that the amount in controversy
exceeds the minimum jurisdictional amount. Plaintiffs filed the
instant Motion to Remand (Rec. Doc. 8) on December 28, 2015.
Defendants opposed the motion on January 5, 2016. Plaintiffs filed
a reply on January 11, 2016. The motion is now before the Court on
the briefs.
LEGAL STANDARD
A defendant may remove to federal court “any civil action
brought in a State court of which the district courts of the United
States have original jurisdiction.” 28 U.S.C. § 1441(a) (2011). “A
federal district court has subject matter jurisdiction over a state
claim when the amount in controversy is met and there is complete
diversity of citizenship between the parties.” Mumfrey v. CVS
Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing 28 U.S.C.
§ 1332(a)). The amount in controversy required by § 1332(a) is
currently $75,000. Id. The Court considers the jurisdictional
facts that support removal as of the time of removal. Gebbia v.
Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). Because
removal raises significant federalism concerns, any doubt about
3

the propriety of removal must be resolved in favor of remand. Gasch
v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir.
2007).
When the petition is silent on the exact amount of claimed
damages, the removing party bears the burden of proving “by a
preponderance of the evidence that the amount in controversy
exceeds $75,000.” Grant v. Chevron Phillips Chem. Co., 309 F.3d
864, 868 (5th Cir. 2002) (citing Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). The removing
party can satisfy this burden either: “(1) by demonstrating that
it is ‘facially apparent’ from the petition that the claim likely
exceeds $75,000 or (2) by setting forth the facts in controversy—
preferably in the removal petition, but sometimes by affidavit—
that support a finding of the requisite amount.” Id. (quoting Allen
v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995)).
“Removal,

however,

cannot

be

based

simply

upon

conclusory

allegations.” Allen, 63 F.3d at 1335.
If the removing party can establish by a preponderance of the
evidence that the amount in controversy exceeds the requisite
amount, “[t]he plaintiff can defeat diversity jurisdiction only by
showing to a ‘legal certainty’ that the amount in controversy does
not exceed $75,000.” Id. at 869 (citing De Aguilar v. Boeing Co.,
47 F.3d 1404, 1412 (5th Cir. 1995)). It is well settled that this
is not a burden-shifting exercise; rather, the “plaintiff must
4

make all information known at the time he files the complaint.”
Id. (quoting De Aguilar, 47 F.3d at 1412).
DISCUSSION
In this case, Plaintiffs’ petition failed to allege a specific
amount of damages. Defendants must therefore meet their burden of
proving an amount in controversy in excess of $75,000. The Court
first looks to the face of the petition to determine whether the
amount in controversy is “facially apparent.” Manguno, 276 F.3d at
723. Here, Plaintiffs’ petition includes “detailed categorical
descriptions of the damages sought,” but it does not contain a
description

of

the

nature

and

extent

Plaintiffs allegedly sustained. See

of

the

injuries

that

Nelson v. Nationwide Mut.

Ins. Co., 192 F. Supp. 2d 617, 619 (E.D. La. 2001). For this
reason,

it

is

not

facially

apparent

from

the

petition

the

jurisdictional amount is satisfied. See id.
Because the requisite jurisdictional amount is not facially
apparent in the Plaintiffs’ petition, the Court must now determine
whether

the

Defendants

have

shown

by

a

preponderance

of

the

evidence, with “summary judgment like” proof, that the amount in
controversy exceeds $75,000. Id. (quoting De Aguilar, 47 F.3d at
1412). Here, in their opposition to Plaintiffs’ motion to remand,
Defendants submit Plaintiffs’ medical records to support their
position that the amount in controversy exceeds $75,000. When
multiple plaintiffs are injured in the same automobile accident,
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their claims cannot be aggregated to reach the jurisdictional
amount in controversy. Eagle Star Ins. Co. v. Maltes, 313 F.2d
778, 779-80 (5th Cir. 1963). Nevertheless, the medical records
provided by Defendants indicate that the medical expenses of both
Plaintiffs, even when combined, do not come close to exceeding the
$75,000 threshold.
Defendants provided medical records from both Kelly Steed’s
and Tiffany Lecesne’s initial visits to urgent care facilities
after the accident and their first visits to treating physicians.
(Rec. Doc. 9-3.) Kelly Steed was treated at MHM Urgent Care on
August

27,

2015,

and

Louisiana

Primary

Care

Consultants

on

September 2, 2015. Id. at 5, 13. At MHM Urgent Care, Steed was
treated for neck pain, back pain, and pain in her lower leg. Id.
at 7. The records provided by Defendants do not indicate the cost
associated with Steed’s treatment at MHM Urgent Care; however,
Plaintiffs provided an invoice in the amount of $255. (Rec. Doc.
20-1, at 1.) At Louisiana Primary Care Consultants, Steed was
evaluated and treated for cervical strain with spasm, trapezius
strain with spasm, thoracic spine strain with spasm, lumbar spine
strain with spasm, bilateral knee strain, bilateral hip strain,
bilateral wrist sprain, and right foot strain. (Rec. Doc. 9-3, at
14.) She was prescribed medication to treat muscle spasms, x-rays
were ordered, and she was scheduled to return in two weeks. Id. at
14-15. There is nothing in the record to reflect the cost of
6

Steed’s

treatment

for

her

visit

to

Louisiana

Primary

Care

Consultants.
In addition, Tiffany Lecesne was treated at Westbank Urgent
Care

on

August

27,

2015,

and

Audubon

Orthopedics

and

Sports

Medicine on September 9, 2015. Id. at 21, 27. At Westbank Urgent
Care, Lecesne was treated for cervicalgia, muscle spasm, joint
pain in the ankle and foot, and osteoarthrosis. Id. at 23. The
records provided by Defendants do not indicate the cost associated
with

License’s

treatment

at

Westbank

Urgent

Care;

however,

Plaintiffs provided an invoice in the amount of $285. (Rec. Doc.
20-2, at 1.) At Audubon Orthopedics, Lecesne was evaluated and
treated for an anterior capsular strain and a possible labral
strain or tear in the right shoulder. (Rec. Doc. 9-3, at 27.) She
was also treated for an aggravation of a pre-existing asymptomatic
post-traumatic arthritis of the right ankle. Id. She was given
steroid injections into her right shoulder and right ankle. Id.
Her doctor noted that if her symptoms did not improve in the
following four weeks, then an MRI arthrogram of her right shoulder
would “probably be recommended” at her next visit. Id. Plaintiffs
provided an invoice indicating that the total cost associated with
Lecesne’s treatment at Audubon Orthopedics was $973.92.
In deciding whether to remand, courts in this district have
sometimes noted the absence or presence of certain claims such as
future medical costs and lost wages. See Buchana v. Wal-Mart
7

Stores, Inc., No. 99-2783, 1999 WL 1044336, at *3 (E.D. La. Nov.
17, 1999). Future medical expenses are relevant to calculating the
amount in controversy. Robinson v. Wal-Mart Stores Tex., L.L.C.,
561 F. App'x 417, 418 (5th Cir. 2014). Nevertheless, courts have
remanded cases in which plaintiffs failed to plead permanent
disability or that their injuries required surgery, even when
plaintiffs included claims such as lost wages, medical expenses,
and

past

and

future

mental

and

physical

pain

and

suffering.

Buchana, 1999 WL 1044336, at *3 (collecting cases).
Defendants must do more than show that certain categories of
damages could potentially bring the amount in controversy over
$75,000 per plaintiff. For example, in Loftin v. Hughes, the
plaintiffs

filed

a

negligence

claim

following

an

automobile

accident. No. 14-1608, 2014 WL 3893313, at *1 (E.D. La. Aug. 7,
2014). The plaintiffs claimed property damage to their vehicle as
well

as

past

and

future

medical

expenses,

physical

pain

and

suffering, bodily injury, loss of income, loss of enjoyment of
life,

permanent

injury

and

disability,

diminution

of

earning

capacity, loss of society, and mental anguish. Id. The defendants
removed the case and supported their position that the amount in
controversy
expenses,

exceeded
medical

$75,000

diagnoses,

by
and

submitting

medical

recommendations

for

records,
future

treatment. Id. at *4. However, the court remanded the case, noting
that

the

defendants

provided

no
8

information

regarding

the

anticipated costs of potential future treatments or the likelihood
that any plaintiff would undergo the possible procedures. Id. at
*3-4. Furthermore, the court pointed out that the defendants
provided no information regarding the plaintiffs’ hourly wages,
how much time any of the plaintiffs had lost from work, which
plaintiff owned the damaged vehicle, or the extent of the vehicle’s
damage. Id. For those reasons, the court held that the defendants
failed to show that the damages would more likely than not meet
the jurisdictional threshold. Id. at *4.
After reviewing the complaint, the notice of removal, and the
parties’ briefs, the Court concludes that Defendants have failed
to carry their burden of showing that removal is appropriate. Each
of Plaintiff’s medical expenses to date are well below the $75,000
threshold. Although Plaintiffs may be continuing treatment with
their doctors, Defendants do not estimate the cost of either
Plaintiff’s ongoing treatment or the cost of potential future
treatment.

See

Loftin,

2014

WL

3893313,

at

*3-4.

Likewise,

Defendants have provided no information regarding the likelihood
that any Plaintiff will undergo future procedures. See id. at *4.
Further, while Plaintiffs allege loss of income as a result of the
accident, Defendants have not set forth facts to support how much
income each Plaintiff has lost. See id. While the Court notes that
Plaintiffs claim property damage to their vehicle, neither the

9

petition nor the materials submitted by the Defendants indicate
who owns the car or the extent of the damage. See id.
To

strengthen

their

position,

Defendants

point

out

that

Plaintiffs have not filed a binding stipulation that the damages
of each Plaintiff cannot exceed $75,000. A failure to stipulate is
only one factor to consider in determining whether a defendant has
met its burden, and it alone will not defeat a plaintiff’s motion
to remand. Carbajal v. Caskids Oil Operating Co., No. 05-5966,
2006 WL 1030392, at *2 (E.D. La. Apr. 18, 2006).
In

sum,

Defendants

put

forth

medical

records

allegedly

showing that Plaintiffs’ damages “could exceed the jurisdictional
minimum.” (Rec. Doc. 9, at 4.) However, “could exceed” does not
satisfy the preponderance of evidence standard of proof. “A ‘could
well’ standard sounds more like a ‘possibility’ standard of proof,
rather than a ‘more likely [than] not’ standard.” Allen v. R & H
Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995); see also
Carbajal, 2006 WL 1030392, at *2; Buchana, 1999 WL 1044336, at *4.
Although

citing

the

wrong

legal

standard

is

not

fatal

to

Defendants’ argument, the Court finds that Defendants have failed
to prove by a preponderance of the evidence that either Plaintiff’s
claim will exceed $75,000. That Plaintiffs might recover greater
than $75,000 does not suffice. Buchana, 1999 WL 1044336, at *4
(citing De Aguilar, 47 F.3d at 1412).

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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand (Rec.
Doc. 8) is GRANTED.
New Orleans, Louisiana, this 2nd day of February, 2016.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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