Mosley v. American Millennium Insurance Company et al

Filing 8

ORDER AND REASONS granting in part, denying in part 3 MOTION to Remand and for Payment of Costs and Expenses. FURTHER ORDERED that Mosley's request to remand is GRANTED, and the matter be and hereby is REMANDED to the 21st Judicial District Court for the Parish of Tangipahoa, Louisiana. FURTHER ORDERED that Mosley's request for costs and fees pursuant to 28 U.S.C. 1447(c) is DENIED. Signed by Judge Lance M Africk on 7/7/2017. (Attachments: # 1 Remand Letter)(blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEMONTEZ MOSLEY

CIVIL ACTION

VERSUS

No. 17-3627

AMERICAN MILLENNIUM
INSURANCE CO., ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion 1 filed by Demontez Mosley to remand the abovecaptioned matter to Louisiana state court.

Mosley also requests costs and fees

pursuant to 28 U.S.C. § 1447(c).
The Court concludes that American Insurance has not met its burden of
establishing by a preponderance of the evidence that the amount in controversy
exceeds $75,000. Therefore, the Court remands the case to the 21st Judicial District
Court for the Parish of Tangipahoa, Louisiana. However, the Court denies Mosley’s
request for costs and fees.
I.
Demontez Mosley filed the present negligence action in Louisiana state court
seeking damages arising from an automobile accident. 2 Mosley alleges that he was
travelling behind a tractor-trailer operated by Rolando Tamez Casas when a tire
tread detached from the tractor-trailer and struck Mosley’s vehicle, causing Mosley

1
2

R. Doc. No. 3.
See R. Doc. No. 1-4.

to collide with a guardrail on the side of Interstate 12 in St. Tammany Parish. 3
Mosley alleges that the tracker-trailer was owned by Arizpe Transport & Logistics,
LLC and insured by American Millennium Insurance Company (“American
Millennium”). 4
After Mosley filed suit, American Millennium removed the case. 5 Mosley now
seeks to have the matter remanded on the ground that the amount in controversy
requirement is not satisfied.
II.
Jurisdictional facts supporting removal, including the amount in controversy,
are judged at the time of removal. Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 883
(5th Cir. 2000). To resolve disputes over the amount in controversy where a civil
action has been removed from Louisiana state court, the Fifth Circuit has
“established a clear analytical framework.” Id. at 882. Louisiana law prohibits
plaintiffs from specifying the numerical value of their damages in their petitions for
damages. La. C. Civ. P. art. 893. As such, “the removing defendant must prove by a
preponderance of the evidence that the amount in controversy exceeds $75,000.”
Gebbia, 233 F.3d at 882 (citing Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th
Cir. 1999)).
A removing defendant can meet this burden in two ways: “(1) by demonstrating
that it was facially apparent from the allegations of the state court petition that the

See id. at 1-2; R. Doc. No. 7, at 1.
See R. Doc. No. 1-4, at 1-2; R. Doc. No. 7, at 1.
5 R. Doc. No. 1.
3
4

2

amount in controversy exceeded the $75,000.00 jurisdictional threshold, or (2) by
offering summary-judgment type evidence of the facts in controversy, which support
a finding that the requisite amount was in controversy.” Bienemy v. Hertz Corp., No.
16-15413, 2016 WL 6994200, at *2 (E.D. La. Nov. 30, 2016) (Morgan, J.) (internal
quotation marks omitted). “If the amount in controversy is not facially 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.” Id. However, if “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.” Id.
Once the defendant has established by a preponderance of the evidence that
the amount in controversy exceeds $75,000, the “plaintiff can defeat diversity
jurisdiction only by showing to a legal certainty that the amount in controversy does
not exceed $75,000.” Grant v. Chevron Phillips Chem. Co., 309 F.3d 864, 869 (5th
Cir. 2002) (internal quotation marks omitted). Any doubts about the jurisdictional
facts supporting removal “are to be construed against removal and in favor of remand
to state court.” Riley v. Wal-Mart, La., No. 15-5729, 2015 WL 9268160, at *1 (E.D.
La. Dec. 21, 2015) (Africk, J.).
III.
American Millennium argues that the jurisdictional amount is “facially
apparent from the allegations of the state court petition.”

3

Bienemy, 2016 WL

6994200, at *2. The Court disagrees and concludes that American Millennium has
not met its burden of proving by a preponderance of the evidence that the amount in
controversy exceeds $75,000.
The petition for damages that Mosley filed in Louisiana state court alleges that
Mosley “suffered and continues to suffer with pain in his shoulder, neck and back, as
well as injuries to his entire body which will be demonstrated at trial.” 6 As such,
Mosley “seeks reasonable damages” for “[p]ast, present and future physical pain and
suffering”; “[p]ast, present and future mental anguish and emotional pain”; “[p]ast,
present and future medical expenses”; “[l]oss of the enjoyment of life (hedonic
damages)”; “[p]ast, present and future lost wages”; and “[o]ther injuries and damages
which a general quantum amount is hereby claimed.” 7
“To determine whether it is facially apparent from a plaintiff’s petition that
the jurisdictional amount is satisfied,” courts generally consider “both the type and
extent of the injuries alleged, the types of damages requested, and the presence or
absence of factual allegations sufficient to establish the requisite likelihood, rather
than a mere possibility, that damages will exceed $75,000.” Maze v. Protective Ins.
Co., No. 16-15424, 2017 WL 164420, at *4 (E.D. La. Jan. 17, 2017) (Engelhardt, J.).
Here, Mosley’s petition for damages “does not specify any particular injuries
which [he] suffered as a result of the accident.” Vaughn v. Todd, 71 F. Supp. 2d 570,
572 (E.D. La. 1999) (Fallon, J.) (emphasis added). Rather, Mosley simply offers the

6
7

R. Doc. No. 1-4, at 2.
Id.
4

vague allegation that he “suffered and continues to suffer with pain in his shoulder,
neck and back, as well as injuries to his entire body.” 8 This allegation alone, without
more, is insufficient to demonstrate that the jurisdictional amount is met. Cf. Bonck
v. Marriott Hotels, Inc., No. 02-2740, 2002 WL 31890932, at *1-*3 (E.D. La. Dec. 30,
2002) (Vance, J.) (concluding the jurisdictional amount is not met where plaintiff
alleges that he “suffered fractured cheek bones; a fractured jaw; broken teeth; severe
head injuries; severe injuries to both shoulders, both arms, and both hands; severe
neck injuries; and severe facial abrasions, lacerations and contusions,” id. at *1, but
does not allege that his “injuries required surgery” or “does not aver any period of
hospitalization,” id. at 2); also cf. Touchet v. Union Oil Co. of Cali., No. 01-2394, 2002
WL 465167, at *2 (E.D. La. Mar. 26, 2002) (Sear, J.) (“The plaintiffs alleges, without
specificity, injuries to his ‘neck, back, and other parts of his body.’ There is nothing
in the petition to suggest the level of severity of these alleged injuries.”); Vaughn, 71
F. Supp. 2d at 572 (“[Plaintiffs] simply allege ‘severe and disabling injuries which
include but are not limited to neck, upper and lower back, shoulders, head, and body
as a whole.’”).
Moreover, while “the types of damages alleged by Plaintiffs generally assist in
establishing the amount in controversy . . ., such allegations alone, unaccompanied
by pertinent factual detail, ‘simply provide [ ] the usual and customary damages set
forth by personal injury plaintiffs and do[ ] not provide the Court with any guidance
as to the actual monetary amount of damages [Plaintiffs have] or will incur.’” Maze,

8

Id.
5

2017 WL 164420, at *4 (alterations in original); see also Vaughn, 71 F. Supp. 2d at
572 (“The[ ] itemization of claims includes permanent disability, medical expenses,
and lost wages. While the plaintiffs’ list is extensive, there is no evidence as to the
nature or extent of any of the claims.”).
Here, Mosley’s “list of damages is a typical listing of damage categories that a
prudent attorney will include in his petition when medical treatment or complaints
of pain are ongoing.” Touchet, 2002 WL 465167, at *2. The list is completely lacking
in detail from which the monetary value of the alleged damages can be estimated.
For example, Mosley “does not state exactly what [physical and mental injuries] are
alleged, what wages were lost or are expected to be lost, or what medical expenses
were incurred.” Vaughn, 71 F. Supp. 2d at 572. As such, it is not “facially apparent”
from the allegations in Mosley’s petition that the jurisdictional amount is satisfied.
Bienemy, 2016 WL 6994200, at *2.
American Millennium points the Court toward a number of Louisiana state
court opinions where awards for neck, back, and shoulder injuries exceeded $75,000. 9
However, Mosley’s petition for damages simply does not contain sufficient facts to
provide a point of comparison to these cases. Two shoulder injuries to two different
people arising from two different accidents are not presumed analogous; their
similarity must be shown. Mosley’s petition does not permit such a showing.
The Court concludes that it is not “facially apparent from the allegations of the
state court petition that the amount in controversy exceed[s] the $75,000.00

9

R. Doc. No. 1, at 4-5.
6

jurisdictional threshold.” Id. Because American Millennium has not offered the
Court any “summary-judgment type evidence” for its consideration, a remand is
therefore warranted. Id.
IV.
Mosley also requests “just costs and attorney fees” pursuant to 28 U.S.C. §
1447(c). 10 Section 1447(c) provides that “[a]n order remanding the case may require
payment of just costs and any actual expenses, including attorney fees, incurred as a
result of the removal.” The Fifth Circuit has cautioned that such awards are only
appropriate after “consideration of the propriety of the removing party’s actions based
on an objective view of the legal and factual elements in each particular case.” Valdes
v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000). In other words, “absent
unusual circumstances, attorney’s fees should not be awarded [under § 1447(c)] when
the removing party has an objectively reasonable basis for removal.” Admiral Ins.
Co. v. Abshire, 574 F.3d 267, 280 (5th Cir. 2009) (quoting Martin v. Franklin Capital
Corp., 546 U.S. 132, 136 (2005)) (alteration in original).
Here, the Court concludes that American Millennium had an “objectively
reasonable basis for removal.”

Id.

Louisiana case law supported American

Millennium’s belief that at least some neck, back, and shoulder injuries reach or
surpass the jurisdictional amount.

Therefore, the Court will not conclude that

American Millennium’s basis for removal was objectively unreasonable. In addition,
American Millennium “appears to have acted in good faith and without any intention

10

See R. Doc. No. 3, at 2.
7

of unnecessarily prolonging the litigation.”

Bammoo, LLC v. Nat’l Marine

Underwriters, Inc., No. 07-5913, 2007 WL 3231547, at *2 (E.D. La. Oct. 30, 2007)
(Feldman, J.).
The Court concludes that awarding costs and fees pursuant to § 1447(c) is
inappropriate.
V.
Accordingly,
IT IS ORDERED that Mosley’s motion is GRANTED IN PART and
DENIED IN PART.
IT IS FURTHER ORDERED that Mosley’s request to remand is GRANTED,
and the above-captioned matter be and hereby is REMANDED to the 21st Judicial
District Court for the Parish of Tangipahoa, Louisiana.
IT IS FURTHER ORDERED that Mosley’s request for costs and fees
pursuant to 28 U.S.C. § 1447(c) is DENIED.

New Orleans, Louisiana, July 7, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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