Lauderdale et al v. Caballero et al
Filing
17
ORDER AND REASONS denying 12 Motion to Remand. Signed by Judge Martin L.C. Feldman on 12/20/2018. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHELBY LAUDERDALE, ET AL.
CIVIL ACTION
v.
NO. 17-4152
JOE CABELLERO, ET AL.
SECTION "F"
ORDER AND REASONS
Before the Court is the plaintiffs’ motion to remand.
For
the reasons that follow, the motion is DENIED.
Background
This litigation arises out of an accident in which a Volvo
sleeper box truck allegedly struck a Hyundai Sonata, injuring the
Sonata’s driver and three passengers.
On May 2, 2016, Shelby Lauderdale was driving his 2005 Hyundai
Sonata westbound on Highway 90 in the center lane with Madonna
Rogers,
Katrice
passengers.
Drawsand,
and
Derrick
Drawsand
riding
as
Jose Caballero was driving a 2016 Volvo sleeper box
truck westbound on I-10 in the lane adjacent to Lauderdale’s
Sonata.
When Mr. Caballero tried to switch lanes, the truck he
was driving struck Lauderdale’s car. As a result of the collision,
1
Lauderdale and each of his passengers alleges that they suffered
injuries: Lauderdale alleges that he suffered cervical strains and
aggravation of pre-existing herniated lumbar discs; Rogers alleges
that she suffered cervical strains and a herniated lumbar disc;
Katrice Drawsand alleges that she sustained a lumber strain and a
cervical strain; and Derrick Drawsand alleges that he suffered
cervical strains, lumbar strains, and shoulder strain.
Alleging that Mr. Caballero’s negligence in operating the
truck caused these injuries to Lauderdale and his passengers,
Lauderdale, Rogers, and the Drawsands sued Caballero, along with
his
employer,
Atlanta
Meat
Company in state court. 1
Company,
and
Westfield
Insurance
The plaintiffs allege in the state court
petition that they are entitled to recover past, present, and
future medicine, drugs, hospitalization, medical care, support
care,
lost
wages,
loss
of
wage
earning
capacity,
pain
and
suffering, residual disabilities, mental anguish, emotional upset,
and distress, and other psychological sequelae. 2
On April 28,
2017, Westfield Insurance Company removed the lawsuit to this
The plaintiffs’ claims against Caballero and Atlanta Meat Company
were dismissed without prejudice.
2
The plaintiffs specifically alleged in their petition that
“[p]etitioners contend that their damages do not exceed $50,000.”
2
1
Court, invoking the Court’s diversity jurisdiction. The plaintiffs
now move to remand.
I.
A.
Although the plaintiff challenges removal in this case, the
removing defendant carries the burden of showing the propriety of
this Court's removal jurisdiction.
See Jernigan v. Ashland Oil,
Inc., 989 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 868,
114 S. Ct. 192, 126 L.Ed.2d 150 (1993); Willy v. Coastal Corp.,
855 F.2d 1160, 1164 (5th Cir. 1988).
"Because removal raises
significant federalism concerns, the removal statute is strictly
construed."
2008).
Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.
Further, "any doubt as to the propriety of removal should
be resolved in favor of remand."
Id.
B.
A defendant may generally remove a civil action filed in state
court if the federal court has original jurisdiction over the case
-- that is, if the plaintiff could have brought the action in
federal court from the outset.
See 28 U.S.C. § 1441(a). To
exercise diversity jurisdiction, complete diversity must exist
between the plaintiffs and all of the properly joined defendants,
3
and the amount in controversy must exceed $75,000.
§ 1332(a)(1).
See 28 U.S.C.
The only dispute here is whether the amount-in-
controversy requirement is met.
To determine whether it has jurisdiction, the Court must
consider the allegations in the state court petition as they
existed at the time of removal.
See Manguno v. Prudential Prop.
& Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)(citing Cavallini
v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir.
1995)).
Louisiana law requires that a plaintiff include "no
specific amount of damages" in her prayer for relief.
La. Code
Civ. Proc. art. 893. 3
When the plaintiffs have alleged an indeterminate amount of
damages, the removing party must prove by a preponderance of the
evidence that the amount in controversy exceeds $75,000.
Simon v.
Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); see also De
Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
This
showing may be made by either (1) showing that it is facially
apparent that the plaintiff’s claims likely exceed $75,000 or (2)
setting
forth
"summary
judgment
type
evidence"
of
facts
in
But, “if a specific amount of damages is necessary to establish
. . . the lack of jurisdiction of federal courts due to
insufficiency of damages[,]” then “a general allegation that the
claim exceeds or is less than the requisite amount is required."
La. Code Civ. Proc. art. 893.
4
3
controversy that support a finding of the jurisdictional amount.
Manguno, 276 F.3d at 723; Luckett v. Delta Airlines, Inc., 171
F.3d 295, 298 (5th Cir. 1999).
"[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."
Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880,
883 (5th Cir. 2000).
If the removing defendant cannot show that
the amount in controversy is facially apparent, it may be able to
"set[] forth the facts in controversy – preferably in the removal
petition, but sometimes by affidavit – that support a finding of
the requisite amount."
is
ambiguous
as
to
Luckett, 171 F.3d at 298.
whether
the
alleged
If the petition
damages
surpass
the
jurisdictional amount in controversy, the Court may consider a
post-removal
affidavit
that
clarifies
the
original
complaint.
Asociación Nacional de Pescadores a Pequeña Escala o Artesanales
de Colombia (ANPAC) v. Dow Química de Colombia, 988 F.2d 559, 565
(5th Cir. 1993), abrogated on other grounds by Marathon Oil Co. v.
Ruhgras, 145 F.3d 211, 214 (5th Cir. 1998), rev'd on other grounds,
526 U.S. 574 (1999).
If the removing party satisfies its burden, the plaintiff can
only defeat removal by showing that it is "legally certain that
his recovery will not exceed the amount stated in the state
5
complaint."
De Aguilar, 47 F.3d at 1412; see St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) ("It must
appear to a legal certainty that the claim is really for less than
the
jurisdictional
amount
to
justify
dismissal.").
Absent
a
statute that restricts recovery, "[l]itigants who want to prevent
removal must file a binding stipulation or affidavit with their
complaints; once a defendant has removed the case, St. Paul makes
later filings irrelevant."
De Aguilar, 47 F.3d at 1412 (quoting
In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992)(per
curiam)).
II.
A.
Without more, the plaintiffs seek to remand this case to state
court on the ground that the plaintiffs “admit” that this Court
lacks
subject
matter
jurisdiction
because
the
“stipulate” that none of their claims exceed $75,000.
plaintiffs
Westfield
averred in its notice of removal that plaintiff Madonna Rogers
specifically alleges that she suffered a herniated lumbar disc and
Shelby Lauderdale alleges aggravation of pre-existing herniated
discs; Westfield also cited a litany of cases in which damage
awards
for
herniated
lumbar
discs
herniated discs exceed $75,000.
and
aggravation
of
prior
Westfield contends that the
plaintiffs’ allegations of these particular injuries, coupled with
6
the case law showing the amount such injuries are worth, made it
facially
apparent
Lauderdale’s
controversy
at
the
injuries
of
exceeded
requirement,
supplemental
time
and
jurisdiction
removal
the
Rogers’
jurisdictional
that
the
the
other
over
that
Court
amount
may
plaintiffs’
and
in
exercise
claims.
Westfield further contends that the Court is not deprived of
subject matter jurisdiction based solely on plaintiffs’ counsel’s
representation in the motion to remand that the jurisdictional
amount in controversy requirement is not met.
The Court agrees.
B.
Westfield contends that it is facially apparent from the
plaintiffs’
state
court
petition
that
at
least
two
of
the
plaintiffs were seeking monetary damages in excess of $75,000 at
the time the case was removed. Lauderdale alleges that he suffered
cervical strains and aggravation of pre-existing herniated lumbar
discs, and Rogers alleges that she suffered cervical strains and
a herniated lumbar disc.
present,
and
future
And all plaintiffs seek to recover past,
medicine,
drugs,
hospitalization,
medical
care, support care, lost wages, loss of wage earning capacity,
pain
and
suffering,
residual
disabilities,
mental
anguish,
emotional upset, and distress, and other psychological sequelae.
Although somewhat generic, these are serious damage allegations
7
that make it facially apparent that Rogers’ and Lauderdale’s claims
exceed $75,000. 4
Given that Westfield has satisfied its burden on removal, the
plaintiffs may defeat removal only if they prove to a legal
certainty that, as of the time of removal, the plaintiffs could
not be awarded more than $75,000.
The plaintiffs could meet this
burden by demonstrating that state law prevents recovery in excess
of $75,000, or that the plaintiffs are somehow “bound irrevocably”
to
an
amount
requirement.
under
the
jurisdictional
De Aguilar, 47 F.3d at 1412.
amount
in
controversy
The plaintiffs make no
such showing here.
In support of their contention that the amount-in-controversy
requirement is not met, the plaintiffs state in their motion to
remand that:
Plaintiffs formally stipulate and declare that none of
their claims exceed $75,000.00. Therefore, Plaintiffs
respectfully admits (sic) that this court does not have
the subject matter jurisdiction to hear the suit. Since
the Court thus lacks any jurisdiction in this matter,
this case must therefore be remanded to state court as
a matter of law.
Westfield also offers case law quantifying herniated disc
injuries and correspondence with counsel for plaintiff in which
Westfield confirms that plaintiffs’ counsel will not agree to
stipulate that Madonna Rogers’ claim does not exceed $75,000.
8
4
That plaintiffs’ counsel suggests in the motion to remand that the
plaintiffs
stipulate
that
“none
of
their
claims
exceed”
the
jurisdictional amount in controversy does not change the outcome
of
the
motion
to
remand.
Notably,
this
“stipulation”
is
not
contained in a sworn affidavit, but, rather, in the memorandum in
support of the motion to remand. It therefore fails to demonstrate
that the plaintiffs are bound irrevocably to an amount less than
the federal amount in controversy requirement. 5
In fact, the
plaintiffs’ submission, through their attorney’s representation,
contains none of the features of an acceptable sworn and binding
stipulation:
plaintiffs have failed to expressly stipulate, by
way of binding affidavit, that the amount in controversy does not
exceed $75,000; plaintiffs have failed to waive and renounce
recovery of any damages over $75,000; and plaintiffs have failed
to agree that they will not accept nor enforce a judgment in which
more than $75,000 is awarded.
See Rios v. Office Depot, Inc., No.
17-8260, 2017 WL 3977159, at *3 (E.D. La. Sept. 11, 2017)(Morgan,
J.).
The removing defendant has met its burden of proving that the
Court has subject matter jurisdiction over the plaintiffs’ claims,
Quite obviously, if, as plaintiffs infer, the case is worth less
than $75,000, they would accept some amount less in a possible
settlement.
9
5
and the plaintiffs have not shown to a legal certainty that the
amount in controversy does not exceed $75,000.
Accordingly, IT IS
ORDERED: that the motion to remand is hereby DENIED.
New Orleans, Louisiana, December 20, 2017
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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