Hoffman v. Oyeket et al

Filing 29

ORDER granting 9 Motion to Remand to State Court. Signed by Judge Martin L.C. Feldman on 7/12/2017. (Attachments: # 1 Remand Letter) (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KATHLEEN HOFFMAN

CIVIL ACTION

V.

NO. 17-4058

FABRISSE GREGOIRE OYEKET,
ET AL.

SECTION “F”

ORDER AND REASONS
Before the Court is the plaintiff’s motion to remand. For the
reasons that follow, the motion is GRANTED.
Background
This

personal

injury

case

arises

out

of

an

automobile

accident.
On December 29, 2015, Kathleen Hoffman was driving home to
St. Bernard Parish from work in the Central Business District in
New Orleans. At the split of the Pontchartrain Expressway and I10 East, Fabrisse Oyeket attempted to change lanes in his 18
wheeler

semi-truck.

As

he

was

attempting

to

merge

Hoffman’s lane, he struck her vehicle from behind.

1

into

Ms.

Alleging that she was injured as a result of defendants’
negligence, on December 29, 2016, Ms. Hoffman sued Fabrisse Oyeket,
Oyeket Transport, Cypress Insurance Co., and XYZ Corp. in state
court. The defendants removed the suit to this Court on April 26,
2017, invoking this Court’s diversity jurisdiction. The parties
are diverse. The plaintiff is domiciled in Louisiana. Fabrisse
Oyeket and Oyeket Transport are domiciled in Alabama, and Cypress
Insurance Company is domiciled in California. Ms. Hoffman now seeks
to remand her lawsuit back to state court on the ground that
removal was untimely, or, alternatively, because the amount in
controversy requirement for diversity jurisdiction has not been
established.
I. Standard for Removal
A.
The removing defendants carry the burden of showing the
propriety of this Court's removal jurisdiction.

See Manguno v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002); see also Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815
(5th Cir. 1993).

Remand is proper if at any time the Court lacks

subject matter jurisdiction.

28 U.S.C. § 1447(c).

Given the

significant federalism concerns implicated by removal, the removal
statute is strictly construed “and any doubt about the propriety
of removal must be resolved in favor of remand.”
2

Gutierrez v.

Flores, 543 F.3d 248, 251 (5th Cir. 2008)(citation omitted); Gasch
v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir.
2007)(citations omitted).
For a defendant to invoke the Court's removal jurisdiction
based on diversity, "the diverse defendant must demonstrate that
all of the prerequisites of diversity jurisdiction contained in 28
U.S.C. § 1332 are satisfied," including that the citizenship of
every plaintiff is diverse from the citizenship of every defendant,
and the amount in controversy exceeds $75,000.

See 28 U.S.C.

§ 1332; Smallwood v. Ill. Cent. R.R. Co., Inc., 385 F.3d 568, 572
(5th Cir. 2004)(en banc).
B.
A defendant must file a notice of removal within 30 days of
service of the petition.

28 U.S.C. § 1446(b).

“[I]f the case

stated by the initial pleading is not removable,” the defendant
may remove the case within 30 days of receiving 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 had become
removable.”

28 U.S.C. § 1446(b)(3).

Section 1446(b) calls for the application of a two-step test
for determining whether a defendant timely removed a case. See
Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir. 1992).
First, the Court must determine whether the case could be removed
3

based on the initial pleading under § 1446(b)(1). The 30 day time
period in which a defendant must remove a case “starts to run from
defendant's receipt of the initial pleading only when that pleading
affirmatively reveals on its face that the plaintiff is seeking
damages in excess of the minimum jurisdictional amount of the
federal court.” Id. at 163. Application of this bright line rule,
the Fifth Circuit instructs, requires a plaintiff who wishes to
trigger the 30 day time limit at the defendant’s receipt of the
initial pleading to specifically allege in that initial pleading
that damages are in excess of $75,000. Id. Notably, a defendant’s
subjective

knowledge

about

the

amount

in

controversy

is

not

relevant for purposes of starting the 30 day clock. Id. Pre-suit
settlement demands and medical bills do not cause the 30 day clock
to run if the later receipt of a pleading does not itself reveal
on its face that the case is removable. Id. at 162-63; see also
Schielder v. Kmart Corp., No. 00-2757, 2000 WL 1511182, at *1 (E.D.
La. Oct. 10, 2000) (“The thirty-day window only opens upon the
receipt of a pleading or other paper after the Defendant has been
properly served with a complaint”)(emphasis in original).
Second,

if

the

initial

pleading

does

not

“affirmatively

reveal on its face” that the amount in controversy exceeds $75,000,
the defendant may remove the case within 30 days of receiving “a
copy of an amended pleading, motion, order or other paper from
4

which it may first be ascertained that the case is one which is or
has become removable.”

28 U.S.C. § 1446(b)(3). “The information

supporting removal in a copy of an amended pleading, motion, order
or other paper must be ‘unequivocally clear and certain’ to start
the time limit running for a notice of removal under the second
paragraph of section 1446(b).” Bosky v. Kroger Texas, LP, 288 F.3d
208, 211 (5th Cir. 2002). This “other paper” must be received after
the initial pleading in order to start the 30 day clock. Chapman,
969 F.2d at 164. If a case is not originally removable due to
generic damages allegations in a state court pleading, responses
to discovery are considered “other paper.” See 28 U.S.C. § 1446
(c)(3). Post-complaint correspondence between attorneys can also
constitute “other paper.” Addo v. Globe Life and Accident Ins.
Co., 230 F.3d 759, 761-62 (5th Cir. 2000).

II.
Ms. Hoffman first contends that remand is warranted because
the defendants failed to remove the lawsuit within 30 days of
service of her state court petition. To determine whether the
defendants timely removed this lawsuit, the Court first considers
whether the plaintiff specifically alleged in her state court
petition

that

her

damages

exceeded

$75,000.

The

plaintiff’s

pleading sought damages for “bodily injuries, loss of work, loss
5

of enjoyment of life, loss of home duties and responsibilities,
undue stress, loss of full use and functions, loss of lifestyle,
mental anguish, loss of sleep and proper rest, loss of consortium,
requiring daily medications, and damage to her vehicle.” Clearly,
Ms. Hoffman’s state court petition did not trigger the timing
provisions of § 1446(b)(1) because it did not affirmatively reveal
on its face that she sought damages greater than $75,000. Chapman,
969 F.2d at 163. Ms. Hoffman simply made generic allegations
regarding her damages.
The plaintiff’s argument that the defendants should have been
able to ascertain that the case was removable before or at the
time they received her state court petition based on the $200,000
pre-suit

settlement

demand

and

medical

records

they

had,

is

foreclosed by binding Fifth Circuit precedent. Any information
received before the suit was filed cannot be an “other paper” that
would trigger the start of the 30 day clock. Id. at 164.
Where, as here, the Court determines that the initial pleading
did not trigger the 30 day removal clock, the Court must look to
the second section of the removal statute to determine if any
“other papers” triggered the 30 day clock, and, if so, whether the
defendants

timely

removed

within

that

period.

The

defendants

submit that removal was timely under § 1446(b)(3) because the April
27, 2017 notice of removal was filed within 30 days of their April
6

20, 2017 receipt of the plaintiff’s response to their supplemental
requests for admission.
In these papers, the plaintiff admits that: her injury is
unresolved and she plans to continue further treatment, she has
already spent $29,838 on treatment, she is considering a medial
branch block, and that she is considering surgery. While these
admissions

equivocally

suggest

the

amount

in

controversy

requirement might be met, “[o]ther papers describing injuries and
other damages that seem likely to exceed the amount in controversy
requirement, but not showing unequivocally that the requirement is
met, are insufficient to trigger the removal clock.” Green v. Geico
Gen. Ins. Co., No. 15-3968, 2015 WL 5971760, at *3 (E.D. La. Oct.
14, 2015); Darensburg v. NGM Ins. Co., No. 14-1391, 2014 WL
4072128, at *2 (E.D. La. Aug. 13, 2014) (same).
Mindful

of

the

Court’s

limited

jurisdiction

and,

correspondingly, that any doubt about the propriety of removal
must be resolved in favor of remand, the Court finds that the
responses to defendants’ supplemental requests for admission do
not

make

it

“unequivocally

clear

and

certain”

that

the

jurisdictional requirement is met. Bosky, 288 F.3d at 211. Bosky
instructs that the other paper must “make certain, exact, or
precise”

or

cause

the

defendant

learn

with

certainty” that the amount in controversy is over $75,000.

Id.

7

“to

find

out

or

The responses to the supplemental requests for admissions simply
fall short of this standard.
The Court’s finding is reinforced by the case literature. For
example, another section of this Court deemed “unequivocally clear
and certain” a list of itemized damages totaling $313,556.60
received by the defendant in response to interrogatories. Oniate
v. State Farm Mut. Auto. Ins. Co., No. 15-6431, 2016 WL 232437, at
*4 (E.D. La. Jan. 20, 2016). Another example of “other paper”
meeting

the

“unequivocally

clear

and

certain”

test

was

the

defendant’s receipt of an amended petition in Texas that sought
$3,575,000 in damages. Mumfrey v. CVS Pharmacy, Inc., 719 F.3d
392, 400 (5th Cir. 2013).
Scott v. Office Depot, Inc. is also illustrative in defining
the

contours

receipt

of

herniated

of

the

medical

disks

and

applicable
records
other

standard.

showing

back

There,

plaintiff

injuries,

had

defendant’s

had

suffered

received

three

epidural steroid injections, and was seeking damages for lost
wages, was insufficient to trigger the 30 day removal clock. No.
14-791-JJB-RL, 2015 WL 2137458, at *5 (M.D. La. May 7, 2015).
However, the clock was triggered by a later settlement letter,
unequivocally quantifying the plaintiff’s alleged damages; the
letter

stated

plaintiff’s

medical

expenses

to

date

were

$21,315.49, her doctor believes she will require two to three
8

epidural steroid injections per year, which alone would cost
between $130,000 and $390,000 per year, and her general damages
were estimated to be between $75,000 and $100,000. Id.
Here the plaintiff’s responses to defendants’ supplemental
requests for admissions merely state plaintiff is “considering” a
medial block branch and is “considering” a future surgery. Even
factoring

in

the

$29,838

the

plaintiff

indicates

she

has

in

medicals, as well as additional damages for pain and suffering,
that the plaintiff is “considering” future medical treatment is
necessarily equivocal and unclear, and decidedly unhelpful in
determining whether the jurisdictional requirement has been met. 1
There has been no clear and certain “other paper” showing over
$75,000 is in controversy, such as the itemized list of damages in
Oniate or the amended petition in Mumfrey. 2

1

A contrary holding would encourage premature removals in the
future
-a
result
the
Fifth
Circuit
has
sought
to
avoid. See Bosky, 288 F.3d at 211 n. 17 (citing Chapman, 969 F.2d
at 163).
2

If plaintiff truly wishes to litigate in state court, she may
readily accomplish that by irrevocably stipulating that she will
not seek nor collect damages exceeding $75,000. And quite obviously
any settlement demand should also respect that.
9

Accordingly, the plaintiff’s motion to remand is GRANTED, and
the case is hereby remanded to Civil District Court for the Parish
of Orleans.
New Orleans, Louisiana, July 12, 2017

________________________
MARTIN L.C. FELDMAN
U.S. DISTRICT JUDGE

10