Mitchell v. State Farm Mutual Automobile Insurance Company et al
ORDER AND REASONS denying without prejudice plaintiff's 19 Motion for Reconsideration. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STATE FARM MUTUAL AUTOMOBILE
INSURANCE CO., ET AL.
ORDER AND REASONS
Before this Court is Plaintiff’s, Jason Mitchell, “Motion for
Reconsideration” (Rec. Doc. 19-1), seeking remand to the Civil
District Court for the Parish of Orleans, State of Louisiana,
Defendants, State Farm Mutual Automobile Insurance Company 1 and
reconsideration or the previous motion for remand. For the below
stated reasons, IT IS ORDERED that Plaintiff’s Motion be DENIED
WITHOUT PREJUDICE, to be reurged after the Plaintiff corrects the
noted deficiencies stated below.
This case stems from an automobile accident that occurred on
January 17, 2015, when Defendant Mancini struck the rear of the
“suffered severe and disabling injuries . . . .” (Rec. Doc. 1-1 at
2). Plaintiff filed suit in Civil District Court for the Parish of
Orleans on January 5, 2016, naming Defendants State Farm and
State Farm is also named in its capacity as an un-insured/under-insured
Mancini. Plaintiff sought damages for past and future physical
pain and suffering; past, present, and future mental pain and
suffering; past, present, and future medical expenses; loss of
past and future earnings; loss of future earning capacity; past
and future loss of enjoyment of life; permanent disability to the
together with legal interest thereon from the date of judicial
demand until paid; and for all costs of proceedings. (Rec. Doc. 11 at 1-2).
On January 27, 2016, Defendants timely filed their Notice of
Removal with this Court, maintaining that federal subject matter
jurisdiction exists under 28 U.S.C. § 1332 – averring that there
is diversity of citizenship and that it is facially apparent from
$75,000. (Rec. Doc. 1).
On April 28, 2016, over three months after removal and after
entry of a scheduling order, Plaintiff filed a motion to remand to
state court. (Rec. Doc. 17). Plaintiff’s motion was noticed for
submission on May 25, 2016, such that an opposition on behalf of
the Defendants was due no later than May 17, 2016. L.R. 7.5. No
opposition was filed.
On June 2, 2016, this Court issued an order denying the
Plaintiff’s motion to remand. The Court noted the Plaintiff failed
to file a binding sworn stipulation certifying the amount in
controversy is below $75,000 and irrevocably renouncing the option
to seek or accept an award over that amount (Rec. Doc. 18).
On July 1, 2016, Plaintiff filed this instant motion seeking
reconsideration of the Court’s denial of the motion to remand,
Pursuant to Fed. R. Civ. P. 60 (a) and (b) (Rec. Doc. 19-1).
Plaintiff contends that an ECF filing error prevented the
court from properly evaluating the binding stipulation to renounce
the right to accept a judgment over $75,000 and notes that the
stipulations may be considered in establishing the amount in
controversy if the basis for jurisdiction is ambiguous at the time
of removal. Plaintiff contends that the amount in controversy was
ambiguous and seeks to clarify that amount via a post-removal
stipulation. We note however that the stipulation is only signed
by the counsel and not by the Plaintiff under oath.
stipulations of the plaintiff may be considered only in limited
circumstances. See Asociacion Nacional de Pescadores a Pequena
Escala O Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia
S.A., 988 F.2d 559, 566 (5th Cir. 1993), abrogated by Marathon Oil
Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998). 2 Specifically, they
It should be noted that there is a disagreement amongst the U.S. Courts of
Appeal for the various Circuits as to whether post-removal damage stipulations
should be considered at all. See Benjamin T. Clark, A Device Designed to
Manipulate Diversity Jurisdiction: Why Courts Should Refuse to Recognize PostRemoval Damage Stipulations, 58 Okla. L. Rev. 221, 231, 236 (2005) (“The U.S.
may be considered to clarify the amount in controversy as of the
date of removal when it is ambiguous. Gebbia v. Wal-Mart Stores,
Inc., 233 F.3d 880, 883 (5th Cir. 2000). The Fifth Circuit has
held that the defendant has not met the burden for removal when:
(1) the complaint did not specify an amount of
damages, and it was not otherwise facially
apparent that the damages sought or incurred
statement in their notice of removal that was
not based on direct knowledge about the
plaintiff[’s] claims; and (3) the plaintiff
timely contested removal with a sworn,
unrebutted affidavit indicating that the
requisite amount in controversy was not
Asociacion Nacional, 988 F.2d at 566. If the Plaintiff satisfies
the aforementioned factors and submits a sworn executed affidavit
by him and his attorneys, Plaintiff may reurge within fourteen
days of the date of this order. Oddly, a stipulation was filed
in state court after removal and without plaintiff's signature.
(Rec. Doc. 19-2).
Courts of Appeal for the Third, Sixth, and Seventh Circuits have held that postremoval damage stipulations should be disregarded[,]” while “the U.S. Court of
Appeals for the Fifth Circuit and a myriad of federal district courts have held
that post-removal damage stipulations may be considered to clarify the amount
IT IS ORDERED that Plaintiff’s Motion for Reconsideration be
DENIED WITHOUT PREJUDICE.
New Orleans, Louisiana, this 12th day of August, 2016.
SENIOR UNITED STATES DISTRICT JUDGE
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