Dalton et al v. Progressive Southeastern Insurance Company et al

Filing 9

ORDER AND REASONS granting 7 Motion to Remand to State Court. Signed by Judge Ivan L.R. Lemelle. (ijg)(1 CC CDC Orleans Parish) (Additional attachment(s) added on 8/4/2016: # 1 Remand Letter) (ijg).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BYRON DALTON, ET AL.

CIVIL ACTION

VERSUS

NO. 16-12246

PROGRESSIVE SOUTHEASTERN INSURANCE
COMPANY, ET AL.

SECTION "B"(5)

ORDER AND REASONS
Before

the

(“Plaintiffs”)
defendant,

Court
Motion

is
to

Progressive

Byron

Dalton

and

Remand.

Rec.

Doc.

Southeastern

Melinda

Dalton’s

7.

removing

The

Insurance

Company

(“Progressive” or “Defendant”), filed a memorandum in opposition.
Rec. Doc. 8. For the reasons outlined below,
IT IS ORDERED that the Motion is GRANTED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This cases arises out of a car accident that occurred at the

corner of Loyola Avenue and Calliope Streets in New Orleans,
Louisiana on June 7, 2015. Rec. Doc. 1-2 at 1. Plaintiff Byron
Dalton was driving a 2015 Temsa BS westbound on Loyola when he
stopped at a red traffic light at the intersection of Loyola and
Calliope. Id. Defendant John Cyrus, driving a 2015 Toyota Camry,
was also traveling westbound on Loyola Avenue when he struck
Dalton’s vehicle from the rear. Id. at 2. Plaintiffs allege that
Dalton was driving his vehicle under the influence of alcohol at
the time of the accident. Id. Plaintiffs filed suit in Civil
District Court for the Parish of Orleans against Progressive
1

(Cyrus’s

insurer),

State

Farm

Mutual

Insurance

Company

(Plaintiffs’ Underinsured Motorist carrier), and Cyrus. Id. at 1.
Plaintiffs’ state court petition claims that Byron Dalton
suffered injuries to his neck and back. Id. at 2. Plaintiffs seek
recovery for Mr. Dalton’s mental anguish, physical suffering,
medical expenses, lost wages, and loss of enjoyment of life. Id.
Plaintiffs

also

seek

damages

for

Melinda

Dalton’s

loss

of

consortium, services, and society due to her husband’s injuries.
Id. at 3. Finally, Plaintiffs seek exemplary damages for Cyrus’s
operation of the vehicle while under the influence of alcohol with
a wanton and/or reckless disregard for the rights and safety of
others. Id. On June 30, 2016, Progressive filed a Notice of Removal
based upon diversity jurisdiction. Rec. Doc. 1. Plaintiffs then
filed the present Motion to Remand.
II.

THE PARTIES’ CONTENTIONS

Plaintiffs’ Motion to Remand claims that Progressive must put
forth

affirmative

evidence

demonstrating

that

the

amount

in

controversy exceeds $75,000. Rec. Doc. 7-1 at 1. They claim that
Defendant’s “listing of boilerplate categories of damages” is
insufficient to prevent remand. Id. at 2. Because Defendant has
not presented any affirmative evidence, Plaintiffs maintain that
the case must be remanded. Id. at 3.
Progressive maintains that it is facially apparent from the
petition that Plaintiffs’ claims exceed the jurisdictional amount.
2

Rec. Doc. 8 at 3. Defendant analogizes this case to Gebbia v. WalMart Store, Inc., 233 F.3d 880 (5th Cir. 2000), and Luckett v.
Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999), claiming that
the two Fifth Circuit decisions demonstrate that the amount in
controversy is also facially apparent here. Rec. Doc. 8 at 3.
Furthermore,

Defendant

claims

that

the

prayer

for

exemplary

damages alone pushes the amount in controversy over $75,000 because
the jury could choose to assess any amount of damages to punish
Cyrus

for

driving

under

the

influence.

Id.

Accordingly,

Progressive contends that “there is more than enough information
on the face of the pleading . . . to show that the amount in
controversy is in excess of the jurisdictional amount.” Id. at 4.
III. LAW AND ANALYSIS
The federal removal statute provides that “any civil action
brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant
or the defendants.” 28 U.S.C. § 1441. The removing party bears the
burden of proving the existence of federal jurisdiction. De Aguilar
v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). The United
States Court of Appeals for the Fifth Circuit has repeatedly
instructed

that

any

ambiguities

should

be

construed

against

removal and in favor of remand. Manguno v. Prudential Prop. And
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Here, Plaintiffs
do not contest the existence of complete diversity. Rather, they
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maintain that the $75,000 amount in controversy threshold is not
met. 28 U.S.C. § 1332(a).
“Because plaintiffs in Louisiana state courts, by law, may
not specify the numerical value of claimed damages, the removing
defendant must prove by a preponderance of the evidence that the
amount in controversy exceeds $75,000.” Gebbia v. Wal-Mart Stores,
Inc., 233 F.3d 880, 882 (5th Cir. 2000) (internal citations
omitted). A defendant may prove this in one of two ways: (1) show
that

it

is

facially

apparent

from

the

pleadings

that

the

plaintiff’s claims are for more than $75,000; or (2) set forth
“facts in controversy that support a finding of the requisite
amount.” Id. at 882-83. However, removal cannot be based on
conclusory allegations. Allen v. R&H Oil & Gas Co., 63 F.3d 1326,
1335 (5th Cir. 1995).
Here, Progressive contends that the amount in controversy is
facially apparent from Plaintiff’s state court pleading. Defendant
primarily relies on analogies to Gebbia w. Wal-Mart Store, Inc.
and Luckett v. Delta Airlines, Inc. to demonstrate that the amount
in controversy is met. However, Progressive fails to identify the
ways in which these cases are similar to the case at hand. In
Gebbia, the Fifth Circuit found that the amount in controversy was
facially apparent from the pleadings because Plaintiff alleged
injuries to her wrist, knee, upper back, and lower back and sought
damages for medical expenses, physical pain and suffering, mental
4

anguish and suffering, loss of enjoyment of life, loss of wages
and

earning

capacity,

as

well

as

permanent

disability

and

disfigurement. Gebbia, 233 F.3d at 883. While Plaintiffs in this
matter seek damages on many of the same grounds, Byron Dalton has
not alleged permanent disability or disfigurement, nor has he
sought damages for loss of earning capacity, making it appear from
the face of the complaint that his injuries are far less severe
than those suffered by the Gebbia plaintiff.
In Luckett, the Fifth Circuit found that the amount in
controversy
plaintiff

was

facially

“alleged

apparent

damages

for

from

the

property,

pleadings

travel

because

expenses,

an

emergency ambulance trip, a six day stay in the hospital, pain and
suffering,

humiliation,

and

her

temporary

inability

to

do

housework after the hospitalization.” Luckett, 171 F.3d at 298.
All of those damages arose out of Delta’s loss of plaintiff’s
luggage containing her heart medication, which caused her to suffer
congestive

heart

failure,

pulmonary

edema,

and

respiratory

distress. Id. at 297. Again, it is not facially apparent from the
pleadings here that Byron Dalton suffered such extreme injuries.
The petition only alleges vague injuries to the neck and back.
Rec. Doc. 1-2 at 2. Moreover, it does not allege that he required
emergency treatment or a hospital stay—only that he required a
trip to a physician’s office. Id. Accordingly, Gebbia and Luckett
are factually distinguishable. The amount in controversy here
5

appears to fall below the amounts sought in Gebbia and Luckett but
above the amount sought in Simon v. Wal-Mart Stores, Inc., 193
F.3d 848 (5th Cir. 1999).
In Simon, the Fifth Circuit concluded that it was not facially
apparent from the pleadings that the amount in controversy was
satisfied because the complaint “alleged, with little specificity,
damages from less severe physical injuries—an injured shoulder,
bruises,

and

abrasions—and

unidentified

medical

expenses

for

Simon, plus loss of consortium for Elwin.” Id. at 850-51. The court
further found that, if plaintiff had alleged damages for “loss of
property, emergency transportation, hospital stays, specific types
of medical treatment, emotional distress, functional impairments,
or

disability,”

the

complaint

would

have

supported

a

“substantially larger monetary basis for federal jurisdiction.”
Id. at 851. While the facts of this case indicate a somewhat
greater amount in controversy than Simon and a lesser amount than
Luckett and Gebbia, this Court finds that they are closer to those
of Simon.
First, like Simon, the petition provides no specificity as to
the extent of the injuries to Mr. Dalton’s neck and back, nor does
it give specifics as to the medical treatment received by Mr.
Dalton. Also similar to Simon, Mrs. Dalton seeks damages for loss
of consortium. Though Mr. Dalton also alleges damages for mental
anguish, physical suffering, lost wages, and loss of enjoyment of
6

life, there are absolutely no specifics provided as to any of these
claims that would lead the Court to believe that the damages
alleged rise to the level of those in Gebbia or Luckett. Finally,
Progressive’s claim that the request for exemplary damages on its
own justifies federal jurisdiction is without merit.
Defendant claims that, because the jury could award any amount
for exemplary damages, $75,000 is clearly in controversy. However,
in Louisiana, exemplary damages must bear some proportion to the
real damage sustained, see Adams v. J.E. Merit Const., Inc., 972005 (La. 5/19/98); 712 So. 2d 88, 91, and “it is extremely rare
for the amount of exemplary damages awarded to exceed the total
amount of compensatory damages in a case.” Lacoste v. Crochet,
1999-0602, p. 10 (La. App. 4 Cir. 1/5/00); 751 So. 2d 998, 1005.
Accordingly, the fact that exemplary damages are sought does not
automatically

demonstrate

that

the

amount

in

controversy

requirement is facially apparent, especially considering the vague
allegations regarding compensatory damages. Due to the petition’s
lack of specificity and reliance upon boilerplate categories of
damages, this Court finds that the requisite amount in controversy
is not facially apparent. See Coburn v. Int’l Paper Co., No. 122163, 2013 WL 4776481, at *2 (W.D. La. Sept. 4, 2013). Moreover,
Defendant points to no facts in controversy that would support a
finding of the requisite amount.

See Gebbia, 233 F.3d at 882-83.

Therefore, this Court finds that Progressive has failed carry its
7

burden of establishing the amount in controversy by a preponderance
of the evidence. Id. at 882.
IV.

CONCLUSION

For the reasons discussed above,
IT IS ORDERED that the motion is GRANTED and the matter
REMANDED.
New Orleans, Louisiana, this 3rd day of August, 2016.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

8