Bienemy et al v. Hertz Corporation et al

Filing 14

ORDER AND REASONS granting 4 Motion to Remand to State Court. IT IS ORDERED that Plaintiffs' motion to remand this case to state court is GRANTED, and this case is hereby remanded to the Civil District Court for the Parish of Orleans, State of Louisiana. Signed by Judge Susie Morgan on 11/30/2016. (cg) (Additional attachment(s) added on 11/30/2016: # 1 Remand Letter) (cg).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHIRLEY BIENEMY, ET AL

CIVIL DOCKET

VERSUS

NO. 16-15413

THE HERTZ CORP., ET AL

SECTION: “E” (3)

ORDER AND REASONS
This matter comes before the Court on a motion to remand filed by Plaintiffs,
Shirley Bienemy, Troy Lynn Bell and Gary Clements. 1 On October 11, 2016, Defendants
Daniel O’Connell and State Farm Mutual Automobile Insurance Company (“State Farm”)
removed this case to the Eastern District of Louisiana. 2 On October 31, 2016, Plaintiffs
Shirley Bienemy, Troy Lynn Bell, and Gary Clements filed their motion to remand. 3 On
November 14, 2016, the Court issued its order allowing each Plaintiff to file a sufficiently
binding affidavit stipulating that it is a legal certainty that each Plaintiff will not be able
to recover more than $75,000. 4 On November 23, 2016, the Plaintiffs filed affidavits
stipulating damages. 5 The Court finds the Plaintiffs’ newly filed affidavits are sufficient to
demonstrate that it is a “legal certainty” each Plaintiff will not be able to recover damages
beyond the jurisdictional amount. For the reasons that follow, the motion to remand 6 is
GRANTED, and this action is hereby remanded to the Civil District Court for the Parish
of Orleans, State of Louisiana.

R. Doc. 4.
R. Doc. 1.
3 R. Doc. 4.
4 R. Doc. 8, at 3.
5 R. Docs. 13-1, 13-2, 13-3.
6 R. Doc. 4.
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FACTUAL AND PROCEDURAL BACKGROUND
On September 6, 2016, Plaintiffs filed a lawsuit in the Civil District Court for the
Parish of Orleans, State of Louisiana. Plaintiffs allege personal injuries as a result of an
automobile accident that occurred on or about November 1, 2015. 7 In their original
complaint, Plaintiffs do not specify the amount of damages they are claiming. Instead, the
Plaintiffs allege that as a result of this accident and resulting injuries, they sustained
damages as follows: (I) Past, present and future pain, suffering, disability, and mental
anguish; (II) Past, present and future medical expense; and (III) Loss of past, present and
future economic income and earning potential. 8
On October 11, 2016, Defendants Daniel O’Connell and State Farm removed this
case to federal court. 9 In their notice of removal, the Defendants, Daniel O’Connell and
State Farm explain, although “the [P]laintiffs’ description of their alleged damages is
vague . . . it is facially apparent from the [P]laintiff’s Petition for Damages that the amount
in controversy herein exceeds the $75,000.00 amount in controversy requirement for
jurisdiction based upon diversity of citizenship.” 10
On October 31, 2016, Plaintiffs filed their motion to remand. 11 In their motion,
Plaintiffs argue the amount in controversy in this case does not exceed $75,000.00. 12
On November 14, 2016, the Court issued an Order allowing each Plaintiff to file a
sufficiently binding affidavit stipulating that it is a legal certainty that each Plaintiff will
not be able to recover more than $75,000. 13 In this Order, the Court explained, “Having

R. Doc. 1-3, at 1.
R. Doc. 1-3, at 2.
9 R. Doc. 1.
10 R. Doc. 1, at 2.
11 R. Doc. 4.
12 R. Doc. 4-2, at 4.
13 R. Doc. 8, at 3.
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considered the Defendants’ notice, the Plaintiffs’ motion to remand, and the applicable
law, the court finds the Defendants have not met their burden, as the amount in
controversy in this case is not facially apparent from the allegations in Plaintiffs’ state
court petition.” 14 The Court also found, “as of the date of removal, the amount in
controversy was ambiguous.”15
LEGAL STANDARD
Federal courts are courts of limited jurisdiction and possess only the authority
conferred upon them by the United States Constitution or by Congress. 16 Federal law
allows for state civil suits to be removed to federal courts in certain instances. Generally,
removal jurisdiction is governed by 28 U.S.C. § 1441(a), which provides:
Except as otherwise expressly provided by Act of Congress, 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,
to the district court of the United States for the district and division
embracing the place where such action is pending. 17
“The removing party bears the burden of showing that federal jurisdiction exists
and that removal was proper.” 18 When removal is based on federal diversity jurisdiction,
the removing party must show that (1) complete diversity of citizenship exists between
the parties, and (2) the amount in controversy exceeds $75,000.00, exclusive of interest
and costs 19 “The jurisdictional facts supporting removal are examined as of the time of

Id.
Id.
16 Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
17 28 U.S.C. § 1441(a).
18 See Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
19 Garcia v. Koch Oil Co. of Tex., Inc., 351 F.3d 636, 638 (5th Cir. 2003) (citing St. Paul Reinsurance Co. v.
Greenburg, 134 F.3d 1250, 1253 (5th Cir. 1998)).
14
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removal.” 20 “Ambiguities are construed against removal and in favor of remand because
removal statutes are to be strictly construed.” 21
LAW AND ANALYSIS
The Fifth Circuit has “established a clear analytical framework for resolving
disputes concerning the amount in controversy for actions removed from Louisiana state
courts pursuant to 1332(a)(1).” 22 Because Louisiana law prohibits state-court plaintiffs
from claiming a specific amount of damages, 23 the removing defendant must establish by
a preponderance of the evidence that the amount in controversy exceeds the $75,000.00
jurisdictional amount at the time of removal. 24 The removing defendant may meet its
burden in one of two ways, either (1) by demonstrating that it was “facially apparent” from
the allegations of the state court petition that the amount in controversy exceeded the
$75,000.00 jurisdictional threshold, or (2) by offering “summary-judgment type
evidence” of facts in controversy, which support a finding that the requisite amount was
in controversy. 25
Even if the removing defendant meets its burden in either of these ways, a plaintiff
may defeat removal by showing, to a legal certainty, that its recovery will be less than
$75,000.00. 26 A plaintiff’s post-removal affidavit or stipulation offered for this purpose
may be considered in limited circumstances. If the amount in controversy is not facially

Poche v. Eagle, Inc., No. 15-5436, 2015 WL 7015575, at *2 (E.D. La. Nov. 10, 2015) (citing Gebbia v. WalMart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)).
21 Poche, 2015 WL 7015575, at *2 (citing Manguno, 276 F.3d at 723).
22 Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000) (citing Luckett v. Delta Airlines,
Inc., 171 F.3d 295, 298 (5th Cir. 1999)). See also Manguno v. Prudential Property and Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002).
23 See LA. CODE CIV. PROC. Art. 893.
24 Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999); Luckett, 171 F.3d at 298.
25 White v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir. 2003). See also Simon, 193 F.3d at 850; Luckett, 171
F.3d at 298.
26 De Aguilar v. Boeing Co., 47 F.3d 1404, 1411-12 (5th Cir. 1995). See also Sterns v. Scottsdale Ins. Co.,
No. 09-6449, 2010 WL 2733771, at *3 (E.D. La. July 8, 2010).
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apparent from the allegations in the state court petition and, in fact, is ambiguous at the
time of removal, the court may consider a post-removal affidavit or stipulation to assess
the amount in controversy as of the date of removal. 27 If, on the other hand, the amount
in controversy is clear from the face of the state court petition, post-removal affidavits or
stipulations that purport to reduce the amount of damages a plaintiff seeks cannot deprive
the court of jurisdiction. 28 As already explained, this Court has already found that at the
time of removal, the amount in controversy in this case was ambiguous. 29
Because the amount in controversy was ambiguous at the time of removal the
Court may consider a post-removal affidavit. Plaintiffs’ newly attached affidavits are
sufficiently binding. Plaintiffs’ affidavits, each executed on November 23, 2016, stipulate
the amount in controversy is less than $75,000.00 and state that each Plaintiff renounces
his or her “right to recover in excess of $75,000.00 in the event that [they are] awarded
above $75,000.00 in state court.”30 A plaintiff’s stipulation regarding the amount in
controversy is binding “if, within that stipulation, [he] expressly renounced his right to
recover in excess of $75,000.00 in the event he was awarded above that amount in state
court.” 31 A plaintiff’s stipulation that the amount in controversy is not satisfied is binding

27 Gebbia, 233 F.3d 880, 883 (5th Cir. 2000); Associacion Nacional de Pescadores v. Dow Quimica de
Columbia S.A., 988 F.2d 559, 565 (5th Cir. 1993) (When the affidavit “clarify[ies] a petition that
previously left the jurisdictional question ambiguous,” the court may consider the affidavit in determining
whether remand is proper.). See also Cummings v. Winn-Dixie Montgomery, LLC, No. 15-195-SDD-RLB,
2015 WL 4772185 (M.D. La. Aug. 12, 2015); Nelson v. Nationwide Mut. Ins. Co., 192 F. Supp. 2d 617, 619
(E.D. La. 2001) (“[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.”).
28 Gebbia, 233 F.3d at 883.
29 R. Doc. 8, at 3.
30 See R. Docs. 13-1, 13-2, 13-3.
31 McGlynn v. Huston, 693 F. Supp. 2d 585, 593 (M.D. La. 2010). See also Cummings, 2015 WL 4772185,
at *4; Guidry v. Murphy Oil USA, Inc., No. 12-559-SDD-RLB, 2013 WL 4542433, at *7 (M.D. La. Aug. 27,
2013); Printworks, Inc. v. Dorn. Co., Inc., 869 F. Supp. 436, 440 (E.D. La. 1994) (stipulations which “fall
short of stipulating that the claimant will not seek more than the jurisdictional amount” are not binding).
See also Latiolais v. Union Pacific R. Co., No. 6:14-2582, 2014 WL 6455595, at *2 (W.D. La. Nov. 12, 2014);
Smith v. State Farm Mut. Aut. Ins. Co., No. 09-6522, 2010 WL 3070399, at *2 (E.D. La. Aug. 3, 2010)

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if, within that stipulation, he expressly renounces his right to recover in excess of
$75,000.00 in the event he was awarded above that amount in state court. In this case,
each Plaintiff has (1) expressly stipulated, by way of a binding affidavit, that the amount
in controversy does not exceed $75,000.00, (2) waived any damages over $75,000.00,
and (3) agreed to not enforce a judgment in which more than $75,000.00 is awarded. 32
As a result, the Court finds it is without jurisdiction to hear this matter. Remand is
warranted.
CONCLUSION
For the foregoing reasons;
IT IS ORDERED that Plaintiffs’ motion to remand 33 this case to state court is
GRANTED, and this case is hereby remanded to the Civil District Court for the Parish of
Orleans, State of Louisiana.
New Orleans, Louisiana, this 30th day of November, 2016.
_______________________ ________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

(“Ambiguity over the amount in controversy was created by the pre-removal petition’s allegation that the
claims would likely exceed that amount. Through binding affirmative post-removal affidavits attached to
the second remand motion, plaintiffs have met their burden of clarifying with legal certainty that their
claims at the date of filing in state court are for less than the diversity jurisdictional amount. Therefore,
remand is warranted.”).
32 See R. Docs. 13-1, 13-2, 13-3.
33 R. Doc. 4.

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