Thomas v. ABC Insurance Company et al

Filing 84

ORDER AND REASONS: IT IS ORDERED that Plaintiff's 61 Motion to Remand is DENIED, as set forth in document. IT IS FURTHER ORDERED that Plaintiff's 63 Motion to Expedite the Motion to Remand is DISMISSED as Moot. Signed by Judge Ivan L.R. Lemelle on 5/9/2018. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMAL THOMAS

CIVIL ACTION

VERSUS

NO. 17-6097

RAIN CII CARBON, LLC., ET. AL.

SECTION “B”(3)

ORDER AND REASONS
Before this Court is Plaintiff’s, Jamal Thomas, “Motion to
Remand to State Court” and “Motion to Expedite the Motion to
Remand” (Rec. Docs. 61 and 63), seeking remand to the 23rd Judicial
District for the Parish of St. James, State of Louisiana, alleging
that this Court lacks subject matter jurisdiction. Defendant, Rain
CII Carbon, submit a Response in Opposition (Rec. Doc. 74), arguing
complete diversity and that Plaintiff’s claim is facially and
factually over the jurisdictional amount. For the reasons stated
herein,
IT IS ORDERED that Plaintiff’s Motion to Remand (Rec. Doc.
61) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Expedite the
Motion to Remand (Rec. Doc. 63) is DISMISSED as Moot.
FACTS AND PROCEDURAL HISTORY
This case stems from an accident that occurred on May 26,
2016, when Plaintiff was operating a dump truck at Defendant Rain
CII Carbon’s (“Defendant Rain”) facility in Gramercy, Louisiana.
Rec. Doc. 2-1 at 1. Plaintiff alleges that he was instructed to
drive the dump truck, in reverse, onto a ramp in order to unload

coal. Rec. Doc. 6. While attempting to back up onto the ramp, the
rear passenger wheels slid off the edge of the ramp, resulting in
the dump truck overturning. Id. Plaintiff contends that the ramp
was defectively designed and/or improperly constructed “as it did
not have railings on either side to prevent vehicles from tipping
over the edge of the surface of the ramp . . . .” Rec. Doc. 6.
Plaintiff

filed

suit

on

May

19,

2017,

in

23rd

Judicial

District Court for the Parish of St. James, naming Defendant Rain.
Rec. Doc. 2-1. Plaintiff sought damages for past, present and
future: physical pain and suffering; mental pain and suffering;
medical expenses; inconvenience; property damages; lost wages;
loss of earning capacity; disability; and all damages allowed under
Louisiana law. Rec. Doc. 2-1 at 3. On June 23, 2017, Defendants
timely filed their Notice of Removal with this Court, maintaining
that federal subject matter jurisdiction exists under 28 U.S.C. §
1332 – averring that there is diversity of citizenship and that it
is facially apparent from Plaintiff’s Petition that the amount in
controversy exceeds $75,000. Rec. Doc. 2. In discussing the amount
in controversy, Defendant Rain references Plaintiff’s allegation
that he was “severely injured.” Specifically, Defendant Rain notes
that Plaintiff seeks past and present lost wages for two years, at
a

rate

of

$13.00

from $54,080.00

-

-

$16.00

when

$66,560.00.

employed,

Defendant

which

Rain

would

also

range

points

to

the extensive list of damages sought by Plaintiff, as well as the
fact that Plaintiff requests medical expenses for his alleged
injuries

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in the amount of $34,057.00. Rec. Doc. 74 at 9-10; Rec. Doc.
74-5, Summary of Medical Expenses and medical billing records.
On March 22, 2018, Plaintiff filed a stipulation of damages.
Rec. Doc. 55. Subsequently, on March 29, Plaintiff filed the
instant motion to remand to state court. Rec. Doc. 61.

LAW AND ANALYSIS
A. Removal
“A party may remove an action from state court to federal
court if the action is one over which the federal court possesses
subject matter jurisdiction.” Manguno v. Prudential Prop. & Cas.
Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing 28 U.S.C. §
1441(a)). “The removing party bears the burden of showing that
federal jurisdiction exists and that removal was proper.” Id.
(citing De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.
1995); Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.
1993) (per curiam); Willy v. Coastal Corp., 855 F.2d 1160, 1164
(5th Cir. 1988)). “To determine whether jurisdiction is present
for removal, we consider the claims in the state court petition as
they existed at the time of removal.” Id. (citing Cavallini v.
State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)).
“Any ambiguities are construed against removal because the removal
statute should be strictly construed in favor of remand.” Id.
(citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.
2000)). The Court must remand the case to state court “[i]f at any
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time before final judgment it appears that the district court lacks
subject matter jurisdiction[.]” 28 U.S.C. § 1447(c).
B. Amount in Controversy
Under Fifth Circuit precedent, the burden of a defendant
removing based on 28 U.S.C. § 1332 to show that the amount in
controversy is sufficient to support federal jurisdiction differs
depending on whether the plaintiff’s complaint alleges a specific
amount of monetary damages, as this figure will generally control.
See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.
1995). When a defendant is removing from a Louisiana state court,
where the plaintiff is not permitted to plead a specific amount of
money damages, the removing defendant is required to prove by a
preponderance of the evidence that the amount in controversy
exceeds $75,000. Id.; see also De Aguilar, 47 F.3d at 1412. The
defendant does this by either showing that it is facially apparent
that the plaintiff’s claims exceed the jurisdictional amount or by
setting forth the facts in dispute supporting a finding that the
jurisdictional amount is satisfied. Allen, 63 F.3d at 1335.
If the defendant meets its burden of showing the requisite
amount in controversy, the plaintiff can defeat removal only by
establishing with legal certainty that the claims are for less
than $75,000. De Aguilar, 47 F.3d at 1411-12. To prevent removal,
plaintiffs
conjunction

may

file

with

a

their

binding
state

stipulation
court

or

petition,

affidavit
but

it

in

must

affirmatively renounce the right to accept a judgment in excess of
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$75,000 in order to be binding. Id. at 1412; Crosby v. Lassen
Canyon Nursery, Inc., No. CV-02-2721, 2003 WL 22533617, at *3 (E.D.
La. Nov. 3, 2003). As such, it is well-established in the Fifth
Circuit that courts may always consider pre-removal stipulations.
On the other hand, the Fifth Circuit holds that post-removal
affidavits or stipulations of the plaintiff may be considered only
in limited circumstances. See Asociacion Nacional de Pescadores a
Pequena Escala O Artesanales de Colombia (ANPAC) v. Dow Quimica de
Colombia S.A., 988 F.2d 559, 566 (5th Cir. 1993), abrogated by
Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998). 1
Specifically, they may be considered to clarify the amount in
controversy as of the date of removal when it is ambiguous. Gebbia
v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). The
Fifth Circuit has held that the defendant has not met the burden
for removal when:
(1) the complaint did not specify an amount of
damages, and it was not otherwise facially
apparent that the damages sought or incurred
were
likely
above
[$75,000];
(2)
the
defendant[]
offered
only
a
conclusory
statement in their notice of removal that was
not based on direct knowledge about the
plaintiff[’s] claims; and (3) the plaintiff[]
timely contested removal with a sworn,
unrebutted affidavit indicating that the
1

It should be noted that there is a disagreement amongst the U.S. Courts of
Appeal for the various Circuits as to whether post-removal damage stipulations
should be considered at all. See Benjamin T. Clark, A Device Designed to
Manipulate Diversity Jurisdiction: Why Courts Should Refuse to Recognize PostRemoval Damage Stipulations, 58 Okla. L. Rev. 221, 231, 236 (2005) (“The U.S.
Courts of Appeal for the Third, Sixth, and Seventh Circuits have held that postremoval damage stipulations should be disregarded[,]” while “the U.S. Court of
Appeals for the Fifth Circuit and a myriad of federal district courts have held
that post-removal damage stipulations may be considered to clarify the amount
in controversy.”).
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requisite
present.

amount

in

controversy

was

not

Asociacion Nacional, 988 F.2d at 566. Consequently, “if 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, 233 F.3d at 883.

PLAINTIFF’S CLAIM EXCEEDS JURISDICTIONAL AMOUNT
Despite counsel for Plaintiff now maintaining that Plaintiff
will not accept an award exceeding $75,000 so as to justify remand,
such action is inconsistent with existing precedent. First, though
the complaint did not specify an amount of damages, this Court
finds that it is facially apparent that the damages sought or
incurred were above $75,000 at the time Plaintiff filed his state
court

petition.

In

drawing

this

conclusion,

the

factual

similarities in Gebbia are persuasive.
In Gebbia, the plaintiff slipped and fell in the produce
section in a Wal-Mart store and thereafter filed suit in Louisiana
state court, seeking damages for, among other things, medical
expenses,

physical

and

mental

suffering,

loss

of

wages,

and

permanent disability. Id. at 881. The defendant removed the case
to federal court and plaintiff then moved to remand, filing an
affidavit in conjunction with the motion that stated her damages
were less than $75,000. Id. at 881-82. The district court denied
the motion, finding that the “[p]laintiff’s [complaint] at the
6

time of removal alleged injuries that exceeded $75,000.” Id. at
882. The plaintiff then moved for reconsideration based on medical
evidence, simultaneously filing a stipulation that stated that her
claims did not exceed $75,000. Id. The district court denied the
motion and the Fifth Circuit affirmed, holding that – in light of
the numerous damages sought by the plaintiff – it was facially
apparent from the petition that the amount in controversy exceeded
$75,000,

such

that

post-removal

affidavits,

stipulations,

and

amendments seeking to reduce the amount could not deprive the
district court of jurisdiction. Id. at 882-84.
In his petition, Plaintiff likewise seeks damages for, among
other things, medical expenses, physical and mental pain and
suffering, loss of wages and earning capacity, and permanent
disability. Rec. Doc. 2-1. Though the petition does not provide
many specifics in regard to what these amounts might be, Plaintiff
states that he was “severely injured” as a result of the dump truck
overturning with him inside. Rec. Docs. 2-1 and 6. Thus, this Court
holds that it is facially apparent in Plaintiff’s petition that
the damages sought or incurred were likely above $75,000.
Additionally, it is not the case that Defendants only offered
a

conclusory

statement

in

their

notice

of

removal.

Rather,

Defendants mentioned the numerous damages sought, the severity and
nature of Plaintiff’s allegedly disabling injuries, and his claim
for two years of lost wages.

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It is insufficient that “Plaintiff certifies that the amount
in dispute is $75,000.” (Rec. Doc. 55). Such a conclusory statement
“does not clarify an initially ambiguous amount in controversy and
thus is insufficient to deprive the Court of jurisdiction once it
has been properly established.” Levith v. State Farm Fire & Cas.
Co., No. CV-06-2785, 2006 WL 2947906, at *3 (E.D. La. Oct. 11,
2006) (citing Gebbia, 233 F.3d at 883; Asociacion Nacional, 988
F.2d at 565). Though this Court notes that Levith references
renunciation of the right to enforce a judgment as a possibility
for divesting the district court of jurisdiction, renunciation
alone will not suffice as “[e]vents occurring subsequent to the
institution of suit [and after removal] which reduce the amount
recoverable below the statutory limit do not oust jurisdiction.”
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90
(1938). Therefore, Plaintiff’s counsel’s renunciation, standing
alone, is insufficient to divest federal jurisdiction.
As discussed above, it appears that this Court properly
maintains federal subject matter jurisdiction over this action.

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Accordingly,
IT IS ORDERED that Plaintiff’s Motion to Remand is hereby
DENIED.

New Orleans, Louisiana, this 9th day of May, 2018.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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