Nunez-Nunez v. Manuel et al

Filing 7

ORDER & REASONS REMANDING CASE TO STATE COURT. Signed by Judge Martin L.C. Feldman on 2/12/2016. (Attachments: # 1 Transmittal Letter)(caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
OSCAR NUNEZ-NUNEZ

CIVIL ACTION

v.

NO. 16-032

TROY L. MANUEL, ET AL.

SECTION "F"
ORDER AND REASONS

Before the Court is the sole response to the Court's order
that the parties file memoranda, and any pertinent proof, directed
to the issue of whether the jurisdictional minimum existed at the
time this case was removed from state court.

For the reasons that

follow, this case is hereby REMANDED to the Civil District Court
for the Parish of Orleans.
Background
Plaintiff Oscar Nuñez-Nuñez alleges that defendant Troy L.
Manuel is responsible for an automobile accident that injured the
plaintiff as he was driving his car on Airline Highway on December
10, 2014.

The plaintiff alleges that Manuel was driving a vehicle

owned by defendants Haileyesus Inc. and/or Comet Express, Inc. and
insured by defendants Great West Casualty Co. and Occident Fire and
Casualty. The plaintiff alleges, "upon information and belief",
that he has "sustained personal injuries to his entire body,
including but not limited to, [his] skeletal, musculature, and
nervous systems which caused [Plaintiff] to incur extensive medical

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treatment, as well as other costs, expenses, loss of wages, and
damages that may be proven at trial."
On December 9, 2015, the plaintiff sued the defendants in the
Civil District Court for the Parish of Orleans.

On January 4,

2016, Great West removed the lawsuit to this Court.

In support of

its contention that the Court has diversity jurisdiction over the
plaintiff's lawsuit, Great West submits that there is complete
diversity of citizenship between the plaintiff and each of the
named defendants.

Furthermore, Great West contends that it is

clear from the record that the plaintiff seeks damages in excess of
$75,000.

Great West notes that the plaintiff has refused to

stipulate that he seeks less than $75,000 in damages.
On January 20, 2016, the Court ordered the parties to submit
memoranda, and any pertinent proof, directed to the issue of
whether the jurisdictional minimum existed in this case at the time
of removal.

On February 1, 2016, Great West filed a memorandum in

response to the Court's order.

No other party has filed a response

to the Court's order.
I.
Standard
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. 1993), cert. denied,
510 U.S. 868 (1993); Willy v. Coastal Corp., 855 F.2d 1160, 1164
2

(5th Cir. 1988). “Because removal raises significant federalism
concerns, the removal statute is strictly construed.” Gutierrez v.
Flores, 543 F.3d 248, 251 (5th Cir. 2008). 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
plaintiff and all of the properly joined defendants, and the amount
in controversy must exceed $75,000. See 28 U.S.C. § 1332.
To determine whether it has subject matter 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). Louisiana law requires that a plaintiff include “no
specific amount of damages” in a 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. See Simon v. Wal–Mart Stores, 193 F.3d 848, 850
(5th Cir. 1999); see also De Aguilar v. Boeing Co., 47 F.3d 1404,
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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); Luckett v. Delta Airlines, Inc.,
171 F.3d 295, 298 (5th Cir. 1999). “[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. If the petition
is

ambiguous

as

to

whether

the

alleged

damages

meet

the

jurisdictional amount in controversy, the Court may consider a
post-removal affidavit that clarifies the original complaint. See
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).

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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

dismissal”).

than

Absent

the
a

jurisdictional
statute

that

amount
restricts

to

justify

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)).
II.
Application
Here,

the

minimum exists.

Court

cannot

conclude

that

the

jurisdictional

Great West has not met its initial burden to show

that it is facially apparent from the plaintiff's complaint that
damages are likely to exceed $75,000, nor has it presented evidence
sufficient for the Court to conclude the amount in controversy
exceeds $75,000.
The plaintiff's complaint here simply does not contain enough
information for the Court to conclude that it is facially apparent
that damages exceed $75,000. In Gebbia v. Wal-Mart Stores, Inc.,

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the Fifth Circuit found it facially apparent that damages exceeded
$75,000 where, in addition to alleging specific injuries to the
"right wrist, left knee and patella, and upper and lower back," the
complaint detailed damages sought 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." See 233 F.2d 880, 883 (5th Cir.
2000).

This

Court's

prior

decisions

finding

the

amount

in

controversy to be facially apparent likewise regarded complaints
alleging more detailed injuries and damages sought. See, e.g.,
Tobin v. Lab. Corp. of Amer., Civ. A. No. 15-1731, 2015 WL 4478072
(E.D.La. Jul. 22, 2015) (Feldman, J.) (damages exceeding $75,000
facially apparent where massage therapist alleges damages for past
and future physical, economic, and emotional harm related to
permanent nerve damage to arm caused by improperly administered
needle injection); see also Pelas v. EAN Holdings, LLC, Civ. A. No.
11-2876, 2012 WL 85841 (E.D.La. Jan. 11, 2012) (Feldman, J.)
(damages in excess of $75,000 facially apparent where plaintiff
alleges severe "injuries to her sternum and shoulder for which she
has endured significant, pain, suffering disability, loss of wages,
loss

of

earning

associated

capacity,

miscellaneous

medical

expenses,

expenses,
mental

travel

expenses,

anguish,

emotional

distress, loss of enjoyment of life, depression, and anxiety").
Here, the plaintiff's complaint contains no such detail. The

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plaintiff's complaint does not describe in detail either the
severity of his injuries or the scope of damages sought. Instead,
the plaintiff's complaint vaguely alleges that he has received
injuries to his "skeletal, musculature, and nervous system" and,
besides alleging "extensive medical treatment" and "loss of wages,"
otherwise only makes allusions to "other costs."

The Court cannot

conclude that these allegations make it facially apparent that
damages will likely exceed $75,000.
Nor can the Court conclude that the defendants have presented
sufficient evidence to demonstrate that damages exceed $75,000.
Besides the vague allegations in the complaint, the only other
evidence offered by Great West is that the plaintiff is apparently
unwilling to stipulate that damages will not exceed $75,000 and
that the plaintiff allegedly did not comply with Louisiana Code of
Civil Procedure Article 893 by not stating whether or not damages
were

less

than

the

amount

required

for

federal

diversity

jurisdiction. This alone is insufficient to establish that damages
exceed $75,000.
Some district courts have factored in a plaintiff's refusal to
specify or stipulate damages for the purposes of establishing or
defeating federal jurisdiction. See Borill v. Centennial Wireless,
Inc., 872 F. Supp. 2d 522, 528—29 (W.D. La. 2012); see also
Carbajal v. Caskids Oil Operating Co., Civ. A. No. 05-5966, 2006 WL
1030392 (E.D.La. Apr. 18, 2006) (Africk, J.); see also Broadway v.

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Wal-Mart Stores, Inc., Civ. A. No. 00-1893, 2000 WL 1560167
(E.D.La. Oct. 18, 2000) (Livaudais, J.). In these cases, however,
the plaintiff's failure to stipulate damages for the purposes of
establishing jurisdiction was but one factor in a far more robust
record.

See

Borill,

872

F.

Supp.

2d

at

528

("severe

facial

fracture . . . permanent neurological damage . . . one or more disc
herniation"); see also Carbajal, 2006 WL 1030392 at *3 (granting
remand despite plaintiff's failure to stipulate damages and detail
regarding medical expenses); see also Broadway, 2000 WL 1560167 at
*2 ("several herniated discs . . . limited use of her left arm and
persistent soreness of her head, neck and left arm").
Without more detail regarding the severity of plaintiff's
alleged injuries and the extent of damages sought, the Court cannot
conclude that the plaintiff's failure to specify or stipulate
damages alone somehow relieves the defendants of their burden to
establish that the amount in controversy in this case exceeds
$75,000.

Likewise,

while

the

Court

does

not

condone

the

plaintiff's failure to respond to the Court's January 20, 2016
Order, it is not appropriate to conclude counsel's unprofessional
failure to comply constitutes sufficient evidence to change the
outcome of the Court's analysis.1

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It seems helpful to observe that perhaps plaintiff's
counsel is simply unprepared to represent litigants in federal
court. But for that, it would not be a stretch to find counsel's
conduct close to contemptible.
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Accordingly,

because

the

Court

lacks

subject

matter

jurisdiction over this lawsuit, IT IS ORDERED: that the above
captioned case, Civil Action Number 16-032, is hereby REMANDED to
the Civil District Court for the Parish of Orleans.
New Orleans, Louisiana, February 12, 2016

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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