Anderson v. Kesler, et al
ORDER AND REASONS that Plaintiff's 9 Motion to Remand, is hereby DENIED. Signed by Judge Eldon E. Fallon on 1/24/2017. (cms)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VLADIMIR KESLER, ET AL
SECTION "L" (1)
ORDER & REASONS
Before the Court is Plaintiff’s Motion to Remand. R. Doc. 9. Having reviewed the
parties’ briefs and the applicable law, the Court now issues this Order & Reasons.
On July 8, 2016, Plaintiff Laura Anderson filed suit in the Civil District Court for the
Parish of Orleans alleging injuries stemming from an automobile collision occurring in Orleans
Parish, Louisiana, on August 10, 2015. Plaintiff alleges that Defendant Vladimir Kesler
negligently failed to stop at a red light and collided with her vehicle as she was proceeding east
on South Broad Street, causing “multiple contusions and abrasions, cervical strain, lumbar strain,
nerve and disk damage, [and] an aggravation of pre-existing fibromyalgia”. R. Doc. 1-5 at 2. In
her petition, Plaintiff seeks damages for (a) physical pain and suffering; (b) mental anguish;
(c) permanent disability; (d) medical expenses; (e) loss of income; (f) loss of earning capacity;
and (g) loss of enjoyment of life. R. Doc. 1-5 at 2. In accordance with Louisiana Code of Civil
Procedure article 893(a), Plaintiff did not plead a specific damage amount in her petition.
Plaintiff also did not note whether the amount in controversy met, or did not meet, the amount
required for federal diversity jurisdiction. Defendant Plymouth Rock Assurance Company
provided liability coverage for the vehicle operated by Vladimir Kesler. R. Doc. 1-5 at 2.
Plaintiff informed Defendants of her significant injury and medical costs on November
15, 2015 and May 26, 2016, prior to filing suit in state court on July 8, 2016. R. Doc. 9-1 at 1-2.
On August 10, 2016, Defendants filed a motion for extension of time. On September 28, 2016,
Plaintiff filed a supplemental petition adding her underinsured motorist carrier to the complaint.
“Around that time,” Defendants sent a request for admission asking about the value of the
damages; Plaintiff responded on October 20, 2016, that the damages exceeded $75,000. R. Doc.
9-1 at 2.
Defendant Plymouth Rock Assurance Company filed a Notice of Removal on October
20, 2016. Invoking this Court’s diversity jurisdiction, Defendant asserted that this action
involves a controversy between citizens of different states and the amount in controversy
exceeds $75,000, based on Plaintiff’s amended complaint filed September 28, 2016. R. Doc. 1 at
3; R. Doc. 1-2.
On November 21, 2016, Plaintiff filed the present motion to remand, arguing that Notice
of Removal is untimely under 28 U.S.C. § 1446(b). R. Doc. 9-1 at 2-3. Defendants oppose
remand, maintaining the Notice of Removal was filed within the requisite time limit.
A. Plaintiff’s Motion to Remand
Plaintiff provided correspondence between the parties prior to the commencement of the
case detailing her injury and medical care. R. Doc. 9-1 at 1-2; R. Docs. 9-2; 9-3; 9-4; 9-5. Based
on this correspondence, Plaintiff claims that Defendants were on notice that Plaintiff’s damages
would exceed $75,000. R. Doc. 9-1 at 1-2. Plaintiff filed suit on July 8, 2016, and responded to a
request for admission acknowledging that damages exceeded $75,000 on October 20, 2016. In
her motion to remand, Plaintiff contends that Defendants had notice of the potential damages
prior to the commencement of the lawsuit, and that the petition noted injury to Plaintiff’s disc
and nerves, indicating significant and costly damages. R. Doc. 9-1 at 3. Additionally, Plaintiff
contends that the medical records and settlement demands sent to Defendants constitute “other
paper” as set forth in 28 U.S.C. § 1446(b), rendering Defendants’ Notice of Removal untimely.
R. Doc. 9-1 at 3.
B. Defendants’ Opposition
Defendants oppose the motion to remand, contending that prior to September 2016 they
had no reason to believe the amount in controversy exceeded $75,000 and thus no reason to file a
Notice of Removal. R. Doc. 10 at 4. Defendants aver that the medical documentation they
received from Plaintiff between July 8, 2016, the date the state petition was filed, and September
26, 2016, indicated that Plaintiff’s medical costs totaled $10,627.57. R. Doc. 10 at 3. In late
September, Plaintiff filed an amended petition adding her Underinsured Motorist insurer as a
defendant. R. Doc. 10 at 4. On September 26, 2016, Defendants forwarded Plaintiff two requests
for admission, attempting to clarify that the damages and the amount in controversy would not
exceed $75,000. R. Doc. 10 at 3. Plaintiffs did not respond to these requests within 15 days of
service, so, relying on La. Code of Civil Procedure art. 1467, Defendants contend they were
admitted. R. Doc. 10 at 4. On October 20, 2016, Plaintiff responded to Defendants’ response to
request for admission, neither admitting or denying that the amount in damages was greater or
less than $75,000 because the trier of facts determines damages. R. Doc. 9-6 at 1. Also on
October 20, 2016, Defendant received Plaintiff’s medical records pursuant to a subpoena
indicating ongoing medical treatment. R. Doc. 10 at 4-5. At this time, Defendants maintain that it
was apparent that Plaintiff’s damages would exceed $75,000 and filed a Notice of Removal. R.
Doc. 10 at 5-6.
LAW AND ANALYSIS
A. Applicable Law
A defendant may remove a civil action filed in state court if a federal court would have
had original jurisdiction over the issue. 28 U.S.C. § 1441(a). A federal court would have original
jurisdiction over cases involving complete diversity of diversity of citizenship among the parties
where the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).
28 U.S.C. § 1446 creates two distinct thirty-day filing deadlines for a notice of removal.
In Chapman v. Powermatic, Inc., the Fifth Circuit held that this provision creates a two-step test
to analyze the timeliness of removal. 969 F.2d 160, 161 (5th Cir. 1992). First, a court must
determine if the case was removable when initially filed:
[t]he notice of removal of a civil action or proceeding shall be filed
within 30 days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based, or within 30
days after the service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to be served
on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b)(1). Under Chapman, for a case to be removable when filed the pleading
must affirmatively reveal on its face that the plaintiff seeks damages in excess of $75,000. 969
F.2d at 163 (reaffirmed by Mumfrey v. CVS Pharmacy, 719 F.3d 392, 400 (5th Cir. 2013)). A
defendant’s subjective knowledge of the amount of damages is not enough to convert a nonremovable action into a removable one. S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th
If the action is not removable when initially filed, the court then evaluates if the case
became removable at a later time. Section 1446(b)(3) provides that:
[e]xcept as provided in subsection (c), if the case stated by the initial
pleading is not removable, a notice of removal may be filed within
thirty days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other
paper from which it may first be ascertained that the case is one
which is or has become removable.
Thus, under Section 1446(b)(3), a case is removable upon the defendant’s receipt of “a copy of
an amended pleading, motion, order or other paper” from which the amount of damages sought
may first be ascertained. To trigger the removal timer, the information contained in the “other
paper” must be “unequivocally clear and certain.” Bosky v. Kroger Texas, LP, 288 F.3d 208 (5th
Cir. 2002). “[O]ther paper” must also be “received by a defendant only after that defendant has
received the initial pleading.” Chapman, 969 F.2d at 164. If a case is originally not removable
for reasons concerning amount in controversy, responses to discovery are considered “other
paper.” § 1446(c)(3).
Defendant’s removal in this case is only timely if: (1) the timing provision of 28 U.S.C.
§ 1446(b)(1) was not triggered by Plaintiff’s initial pleading and (2) the timing provision of
§ 1446(b)(3) was triggered thirty days or fewer before the October 20, 2016 date of removal.
i. Section 1446(b)(1) and Plaintiff’s Complaint
Plaintiff’s initial complaint did not trigger the timing provisions of § 1446(b)(1) because
the pleading did not affirmatively reveal on its face that Plaintiff sought damages in excess of
$75,000. See Chapman, 969 F.2d at 163. Plaintiff sought damages for (a) physical pain and
suffering; (b) mental anguish; (c) permanent disability; (d) medical expenses; (e) loss of income;
(f) loss of earning capacity; and (g) loss of enjoyment of life for her injuries, which constituted
“multiple contusions and abrasions, cervical strain, lumbar strain, nerve and disk damage, [and]
an aggravation of pre-existing fibromyalgia”. R. Doc. 1-1 at 2. Plaintiff did not include “a
specific allegation that damages are in excess of the federal jurisdictional amount” in this initial
pleading, and thus the initial pleading did not, on its face, trigger the removal timer. Chapman,
969 F.2d at 163.
Plaintiff’s argument regarding damage awards for similarly-situated plaintiffs are also
futile. R. Doc. 9-1 at 3. The Chapman inquiry focuses on the objective text of the pleading itself,
not the defendant’s subjective knowledge of the claim. Chapman, 969 F.2d at 163 (“We adopt
this rule because we conclude that it promotes certainty and judicial efficiency by not requiring
courts to inquire into what a particular defendant may or may not subjectively know.”).
Accordingly, the Court will analyze the second Chapman prong.
ii. Section 1446(b)(3) and Plaintiff’s Amended Pleading
Defendant’s removal was timely under § 1446(b)(3), because Defendant’s October 20,
2016, Notice of Removal was filed within thirty days of Defendant’s September 23, 2016 receipt
of the amended state court pleading. Under Section 1446(b)(3), the thirty day timer is triggered
by the receipt “of a copy of an amended pleading, motion, order or other paper” if received after
the initial complaint and is “unequivocally clear and certain” regarding the information
supporting removal. Bosky, 288 F.3d at 211.
Plaintiff’s correspondence with Defendants prior to July 8, 2016 does not constitute
“other paper” capable of triggering the removal provision. As discussed in this Court’s recent
ruling in Oniate v. State Farm Mutual Automobile Insurance Company, Chapman holds that
“other paper” must be “received by a defendant only after that defendant has received the initial
pleading.” Chapman, 969 F.2d at 164; Oniate, 2:15-CV-6431 (E.D. La. 1/20/16); 2016 WL
232437. None of the correspondence between Plaintiff and Defendants discussing medical
treatment and expenses qualify as “other paper” because they were received prior to the August
23, 2016 initial pleading in state court. Thus, Plaintiff’s argument is unpersuasive.
Plaintiff provided this Court with her October 20, 2016 response to Defendant’s request
for admission, noting that a May 26, 2016 settlement demand should have put Defendants on
notice that Plaintiff’s damages were estimated at $100,000. R. Doc. 9-6 at 1. A settlement
demand may be considered “other paper,” but to trigger the thirty-day timer for removal, the
settlement demand must be received after the initial pleading. Chapman, 969 F.2d at 164.
Plaintiff’s initial pleading was filed on July 8, 2016, well after her May 26, 2016 settlement
demand. R. Doc. 9-1 at 2. Therefore, any knowledge Defendant had of Plaintiff’s damages from
this demand do not serve to trigger the thirty-day timer for removal.
Defendants argue that the thirty day clock began to run on October 20, 2016, after they
received medical documentation of Plaintiff’s ongoing injuries. The Court, however, does not
need to decide whether the clock began to run from that date or from the date Plaintiff filed the
amended complaint, because the removal was timely in either case.
For the aforementioned reasons, IT IS ORDERED that Plaintiff’s Motion to Remand, R.
Doc. 9, is hereby DENIED.
New Orleans, Louisiana, this 24th day of January, 2017.
UNITED STATES DISTRICT JUDGE
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