Laugand v. Wiggins, et al

Filing 14

ORDER REMANDING CASE TO STATE COURT: IT IS HEREBY ORDERED that the above-captioned matter is REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana. Signed by Judge Nannette Jolivette Brown on 9/7/2017.(mmv) (Additional attachment(s) added on 9/7/2017: # 1 Remand Letter) (mmv).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAUGAND

CIVIL ACTION

VERSUS

NO. 17-6551

WIGGINS, et al.

SECTION: “G”(1)

ORDER
This litigation arises out of Plaintiff Neil Laugand’s (“Plaintiff”) claim for damages
allegedly sustained when an automobile driven by Defendant James Wiggins (“Defendant”) struck
Plaintiff in the arm as he attempted to cross the street.1 Plaintiff originally filed this action in the
Civil District Court for the Parish of Orleans on March 10, 2017.2 Defendant removed the case to
this Court pursuant to 28 U.S.C. §§ 1441 and 1446, asserting diversity jurisdiction pursuant to 28
U.S.C. § 1332.3 Upon review of this matter, it came to the Court’s attention that the Court may not
have subject matter jurisdiction over this matter. Even though Plaintiff has not filed a motion to
remand, “federal courts are duty-bound to examine the basis of subject matter jurisdiction sua
sponte.”4 The Court must remand the case to state court “[i]f at any time before final judgment it
appears that the district court lacks subject matter jurisdiction.”5
On July 14, 2017, the Court ordered Defendant to submit summary-judgment-type

1

Rec. Doc. 1-3 at 2.

2

Id. at 1.

3

Rec. Doc. 1 at 1, 3.

4

Union Planters Bank Nat’l Assoc. v. Salih, 369 F.3d 457, 460 (5th Cir. 2004).

5

28 U.S.C. § 1447(c).

1

evidence regarding the amount in controversy at the time of removal of this case for the purpose
of establishing subject matter jurisdiction.6 On July 21, 2017, Defendant filed a memorandum as
to the jurisdictional amount.7 For the reasons that follow, the Court finds that Defendant has not
established by a preponderance of the evidence that the amount in controversy at the time of
removal exceeded $75,000. Therefore, the Court lacks subject matter jurisdiction over the abovecaptioned matter and hereby remands it to state court.
I. Background
A.

Factual Background
In the petition for damages, Plaintiff alleges that on March 11, 2016, he was working as a

bell man for the 4 Points Sheraton Hotel located at 513 Bourbon Street, New Orleans, Louisiana.8
Plaintiff further alleges that on March 11, 2016, he moved to cross Bourbon Street carrying guests’
luggage, and seeing no approaching vehicles, entered the street.9 According to Plaintiff, he then
“suddenly saw a vehicle right upon him” and “felt an immediate pain shooting up his right arm.”10
Plaintiff avers that he was hit in the right arm by the passenger mirror of Defendant’s
vehicle and suffered “debilitating injury due to [Defendant] driving faster than the twenty-five
mile an hour speed limit on single lane streets as he travelled the wrong way on Bourbon Street.”11
Plaintiff avers that he told a police officer what happened and then immediately took a cab to the

6

Rec. Doc. 8 at 4.

7

Rec. Doc. 9.

8

Id. at 1.

9

Id. at 2.

10

Id.

11

Id.

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hospital to have his arm examined.12 According to Plaintiff, he has lost the use of his right arm due
to the injury and has only been able to work “a few weeks since this debilitating injury to his
arm.”13 Plaintiff states that his doctor has advised him to have surgery on his arm due to the intense
pain.14 Plaintiff also asserts that he has experienced “difficulties, challenges, and roadblocks in
dealing with the Louisiana United Business Association Workers Compensation,” (LUBAWC)
and that LUBAWC refused Plaintiff compensation payments that he was entitled to under the
law.15
Accordingly, Plaintiff alleges that he incurred past, present and future medical expenses;
past, present and future pain and suffering; past, present and future mental anguish; past, present
and future lost wages/earning capacity, and other pecuniary losses; loss of enjoyment of life; and
loss of consortium caused by the negligence of Defendant.16
In the amended and supplemental petition for damages, Plaintiff alleged that he did not
receive the workers compensation due to him because “LUBAWC had a doctor who placed
[Plaintiff] as able to go back to work when he could not.”17
B.

Procedural Background
On March 10, 2017, Plaintiff filed a petition for damages in the Civil District Court for the

Parish of Orleans.18 On or about June 9, 2017 (the precise date is unclear from the face of the state

12

Id.

13

Id. at 2–3.

14

Id. at 3.

15

Id.

16

Id. at 3–4.

17

Rec. Doc. 1-4 at 1.

18

Rec. Doc. 1-3.

3

court petition), Plaintiff filed a first amended and supplemental petition for damages.19 On July 7,
2017, Defendant removed the case to this Court pursuant to 28 U.S.C. §§ 1441 and 1446, asserting
diversity jurisdiction pursuant to 28 U.S.C. § 1332.20 On July 14, 2017, the Court ordered
Defendant to submit summary-judgment-type evidence regarding the amount in controversy at the
time of removal of this case for the purpose of establishing subject matter jurisdiction.21 On July
21, 2017, Defendant filed a memorandum as to the jurisdictional amount.22
II. Parties’ Arguments
A.

Defendants’ Notice of Removal
In the Notice of Removal, Defendant asserts that the amount in controversy requirement is

met.23 Defendant contends that, while Plaintiff “does not itemize damages” in the petition for
damages or amended petition, “based upon the numerous specific injury allegations” made by
Plaintiff, “it is clear that the amount in controversy . . . exceeds the sum of $75,000 . . .”24
B.

Defendant’s Memorandum Regarding the Amount in Controversy
In the memorandum regarding amount in controversy, Defendant argues that it is “‘facially

apparent’ at the time of removal that the claims of [Plaintiff] exceed $75,000.25 Defendant points
to the allegations made by Plaintiff in the Petition for Damages to support his argument.26

19

Rec. Doc. 1-4.

20

Rec. Doc. 1 at 1, 3.

21

Rec. Doc. 8 at 4.

22

Rec. Doc. 9.

23

Rec. Doc. 1 at 3–4.

24

Id.

25

Rec. Doc. 9 at 3–4.

26

Id. at 3.

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Specifically, Defendant highlights that “plaintiff specifically alleged a recommendation for
shoulder surgery.”27 Defendant also highlights that “plaintiff specifically alleged that, as a result
of the accident sued upon, he has been unable to return to his regular employment for over a
year.”28
In further support of his argument that the amount in controversy exceeds $75,000,
Defendant cites Luckett v. Delta Airlines, Inc., a Fifth Circuit case, finding that “based solely upon
the allegations by the plaintiff in her Petition for Damages, at the time of the removal of the matter,
‘it is facially apparent that the claims are likely above $75,000.’”29 Defendant concludes that
“[l]ike the allegations in the Petition for Damages in Luckett, based solely upon the claims and
allegations of [Plaintiff] in the instant matter, it is ‘facially apparent’ that the claims of [Plaintiff]
are above $75,000.”30 Furthermore, Defendant contends that if the allegations are proven by a
preponderance of the evidence at trial, it is an undisputed fact that under Louisiana law those
claims would have a value in excess of $75,000.31
III. Law and Analysis
A.

Legal Standard
A defendant may remove a state civil court action to federal court if the federal court has

original jurisdiction over the action.32 A federal court has subject matter jurisdiction over an action

27

Id.

28

Id.

29
Id. (citing Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999) (internal citation and quotation
marks are omitted)).
30

Id.

31

Id. at 3–4.

32

28 U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002).

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“where the matter for controversy exceeds the sum or value of $75,000” and the action “is between
citizens of different states.”33 “When removal is based on diversity of citizenship, the diversity
must exist at the time of the removal.”34 The removing party bears the burden of demonstrating
that federal jurisdiction exists.35 In assessing whether removal was appropriate, the Court is guided
by the principle, grounded in notions of comity and the recognition that federal courts are courts
of limited jurisdiction, that “removal statute[s] should be strictly construed in favor of remand.”36
Remand is appropriate if the Court lacks subject matter jurisdiction, and “doubts regarding whether
removal jurisdiction is proper should be resolved against federal jurisdiction.”37
Pursuant to Fifth Circuit precedent, a removing defendant’s burden of showing 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.38 When the plaintiff
alleges a figure in excess of the required amount in controversy, “that amount controls if made in
good faith.”39 If the plaintiff pleads less than the jurisdictional amount, this figure will also
generally control, barring removal.40

33

28 U.S.C. § 1332(a)(1).

34

Texas Beef Grp. v. Winfrey, 201 F.3d 680, 686 (5th Cir. 2000) (citing 14B Charles Alan Wright, Arthur R.
Miller, & Edward H. Cooper, Federal Prac. and Proc. § 3723 (1998 ed.)).
35

See Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

36

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

37
Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d
1160, 1164 (5th Cir. 1988)).
38

See Allen, 63 F.3d at 1335.

39

Id. (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).

40

Id.

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However, Louisiana law ordinarily does not allow a plaintiff to plead a specific amount of
damages.41 When, as here, the plaintiff has alleged an indeterminate amount of damages, the Fifth
Circuit requires the removing defendant to prove by a preponderance of the evidence that the
amount in controversy exceeds $75,000.42 A defendant satisfies this burden either: “(1) by
demonstrating that it is facially apparent that the claims are likely above $75,000, or (2) by setting
forth facts in controversy—preferably in the removal petition, but sometimes by affidavit—that
support a finding of the requisite amount.”43 The defendant must do more than point to a state law
that might allow the plaintiff to recover more than the jurisdictional minimum; the defendant must
submit evidence that establishes that the actual amount in controversy exceeds $75,000.44
B.

Analysis
Defendant argues that it is facially apparent from Plaintiff’s petition for damages that the

amount in controversy exceeds $75,000.45 When the plaintiff has alleged an indeterminate amount
of damages, the Fifth Circuit requires the removing defendant to prove by a preponderance of the
evidence that the amount in controversy exceeds $75,000.46 A defendant satisfies this burden
either: “(1) by demonstrating that it is facially apparent that the claims are likely above $75,000,
or (2) by setting forth facts in controversy that support a finding of the requisite amount.”47

41

See La. Code Civ. P. art. 893.

42

Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000); see also Simon, 193 F.3d at 850; see
also Allen, 63 F.3d at 1335.
43

Simon, 193 F.3d at 850 (quoting Luckett, 171 F.3d 295); see also Allen, 63 F.3d at 1335.

44

See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).

45

Rec. Doc. 9 at 3–4.

46

Gebbia, 233 F.3d at 882.

47

Simon, 193 F.3d at 850.

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In the July 14, 2017 Order, the Court found that it is not facially apparent from the
pleadings that Plaintiff’s injuries exceed $75,000.48 The petition for damages and amended petition
for damages do not provide specifics as to what medical treatment Plaintiff received prior to
removal or the medical costs associated with Plaintiffs’ injuries. The pleadings also do not provide
specifics on any other element of the damages alleged by Plaintiff that would establish that the
amount in controversy requirement is met.
Because it is not facially apparent from the pleadings that the requisite amount in
controversy is met, Defendant must “set[] forth facts in controversy that support a finding of the
requisite amount.”49 In the memorandum regarding the amount in controversy, Defendant only
sets forth the following facts: “plaintiff specifically alleged a recommendation for shoulder
surgery,”50 and “plaintiff specifically alleged that, as a result of the accident sued upon, he has
been unable to return to his regular employment for over a year.”51 Plaintiff does not allege and
Defendant has not produced any evidence regarding the potential costs of surgery, nor have any
facts been set forth as to Defendant’s loss of earnings over the course of a year. Therefore,
Defendant has not set forth any facts in controversy that support a finding that Plaintiff’s claims
exceed $75,000.
The removing party bears the burden of demonstrating that federal jurisdiction exists.52 In
light of all the evidence, Defendant has not demonstrated by a preponderance of the evidence that

48

Rec. Doc. 8 at 4.

49

Simon, 193 F.3d at 850.

50

Id.

51

Id.

52

See Allen, 63 F.3d at 1335.

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Plaintiff’s claims, if proven, would exceed the jurisdictional minimum of $75,000. Moreover, the
general damages alleged in this case are too vague for the Court to find by a preponderance of the
evidence that they would satisfy the requisite amount in controversy. Therefore, the Court lacks
subject matter jurisdiction over the instant action and will remand the case to state court.
IV. Conclusion
Based on the reasons stated above, the Court finds that Defendant has not put forth
sufficient evidence to demonstrate by a preponderance of the evidence that Plaintiff’s claims, if
proven, would be worth an amount in excess of $75,000.
Accordingly,
IT IS HEREBY ORDERED that the above-captioned matter is REMANDED to the Civil
District Court for the Parish of Orleans, State of Louisiana.

7th
NEW ORLEANS, LOUISIANA, this ____ day of September, 2017.
_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

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