Hatcher et al v. State Farm Mutual Automobile Insurance Company et al

Filing 5

ORDER: IT IS ORDERED that the Plaintiffs' 3 Motion to Remand is GRANTED; provided Plaintiffs execute binding, irrevocable stipulations under oath renouncing any rights to seek or accept any judgment in excess of $75,000. Plaintiffs shall file the stipulations by no later than December 22, 2017. Signed by Judge Ivan L.R. Lemelle on 12/12/2017. (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DENISEYU HATCHER, ET. AL.

CIVIL ACTION

VERSUS

NO. 17-10853

STATE FARM MUTUAL
AUTOMOBILE INSURANCE CO., ET. AL.

SECTION “B”(5)

ORDER AND REASONS
Before

the

Court

is

Plaintiffs,

Deniseyu

Hatcher

and

Stacy

Hatcher’s (collectively “Plaintiffs”), Motion to Remand to State Court
(Rec.

Doc.

3),

and

Defendants,

Daniel

Okabayashi

and

State

Farm

Automobile Insurance Company’s (collectively “Defendants”), Response
in Opposition (Rec. Doc. 4). Accordingly,
IT IS ORDERED that the Plaintiffs’ Motion to Remand (Rec. Doc. 3)
is

GRANTED;

provided

Plaintiffs

execute

binding,

irrevocable

stipulations under oath renouncing any rights to seek or accept any
judgment in excess of $75,000. Plaintiffs shall file the stipulations
by no later than December 22, 2017. While Plaintiffs’ pre-removal
selection of a judicial forum where jurisdictional limits are below
the federal diversity jurisdictional amount of $75,000, Defendants
correctly note that without the latter stipulations Plaintiffs could
seek transfer of their city court action to the state district court
in order to be in a state forum with higher jurisdictional limits.

FACTS AND PROCEDURAL HISTORY
This case emanates from an automobile collision on September 30,
2016, while the parties were traversing highway I-10 East near the
1

Claiborne Avenue exit. Rec. Doc. 4-1. Plaintiffs allege that Defendant
Daniel Okabayashi (“Defendant Okabayashi”) changed lanes suddenly and
improperly, striking Plaintiffs’ vehicle. Id. Plaintiffs each allege
personal

injuries

to

their

neck

and

back.

Rec.

Doc.

3-1.

While

Plaintiffs do not allege a specific dollar amount (See Rec. Doc. 4 at
5; Rec. Doc. 4-1) the First City Court petition seeks the following
damages:
A.
B.
C.
D.
E.
F.
G.
H.

Past and future physical pain and suffering;
Past and future mental anguish;
Medical expenses, past and future;
Lost wages and loss of earning capacity;
Property damage and/or property damage deductible;
Loss of use of vehicle;
Rental car expenses; and
Any and all other damages which will be proved at the
trial; thereof.

Rec. Doc. 1-2.
Plaintiffs filed their petition in state court on August 21, 2017;
and on October 19, 2017, Defendant Okabayashi removed to federal court.
Rec. Doc. 3-1. Plaintiffs’ instant motion seeks remand of this case
back to the First City Court for the Parish of Orleans.

LAW AND ANALYSIS

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
2

exists and that removal was proper.” Id. (citing De Aguilar v. Boeing
Co.,

47

F.3d

1404,

1408

(5th

Cir.

1995).

“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.” Cavallini
v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995).
Ambiguities are to be construed against removal because the removal
statute should be strictly construed in favor of remand. 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 time before final judgment it
appears that the district court lacks subject matter jurisdiction.” 28
U.S.C. § 1447(c).

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
1)

facially

apparent

that

the

plaintiff’s

3

claims

exceed

the

jurisdictional amount or by 2) setting forth “facts in controversy”
supporting a finding that the amount in controversy is greater than
$75,000. Allen, 63 F.3d at 1335. Removal, however, cannot be based
simply upon conclusory allegations. Id.
In Simon, the Fifth Circuit found that it was “not facially
apparent” that the amount in controversy would exceed $75,000, where
the plaintiff alleged “with little specificity,” damages from “less
severe physical injuries” including: an injured shoulder, bruises,
abrasions, unidentified medical expenses, plus loss of consortium for
plaintiff’s husband. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851
(5th Cir. 1999).
By contrast, in Gebbia the plaintiff alleged in her original state
court petition that she sustained injuries to her right wrist, left
knee and patella, and upper and lower back. Gebbia v. Wal-Mart Stores,
Inc., 233 F.3d 880, 883 (5th Cir. 2000). The Fifth Circuit found
jurisdiction was “facially apparent” where she alleged damages for
medical expenses, physical pain and suffering, mental anguish and
suffering, loss of enjoyment of life, loss of wages and earning
capacity, and permanent disability and disfigurement. Id.
Here, taking Plaintiffs’ claims in the state court petition as
they existed at the time of removal, it is not facially apparent that
the amount in controversy is greater than $75,000 for each plaintiff.
While the petition lacks the preferred specificity of Plaintiffs’
alleged injuries, Plaintiffs have only alleged “neck and lower back”
pain.

Louisiana

law

prohibits

plaintiffs
4

from

petitioning

for

a

specific monetary amount. See La.Code Civ. P. art. 893(A)(1). As a
result, we cannot look to the state court petition in this instance.
Nevertheless, Plaintiffs elected to file in the First City Court—where
jurisdiction is limited to civil lawsuits with claims up to $25,000—
as opposed to a court with general jurisdiction. “Because the plaintiff
is deemed the master of his or her complaint, if the state court
pleading

asks

for

less

than

the

applicable

federal

amount

in

controversy, subject matter jurisdiction generally is absent even
though the underlying claim actually may be of a value exceeding the
statutory minimum.” See Allen, 63 F.3d at 1335 (5th Cir. 1995)(“Thus,
in the typical diversity case, the plaintiff remains the master of his
complaint.”); see also § 3702.1 DETERMINATION
CASES REMOVED

FROM

OF THE

AMOUNT

IN

CONTROVERSY—

STATE COURT, 14AA Fed. Prac. & Proc. Juris. § 3702.1 (4th

ed.).
Further, the only proof offered by Defendants in fulfillment of
their burden for removal are the results of Plaintiffs’ lumbar MRIs.
Rec. Doc. 4 at 2. 1 Defendants’ attempt to use the MRI’s to insinuate
the amount in controversy is over $75,000 is insufficient; especially
where Defendants object to the medical causation of said MRI’s. Rec.
Doc. 4 at 3. “In situations where the facially apparent test is not
met, the district court can then require parties to submit summaryjudgment-type evidence, relevant to the amount in controversy at the
time of removal.” Allen, 63 F.3d at 1336 (5th Cir. 1995).

1

See Exhibit #2 MRI result for Deniseyu Hatcher; Exhibit #3 MRI results
for Stacy Hatcher.

5

Defendants cannot use the MRI results as “facts in controversy”
to support their contentions that the amount in controversy is over
$75,000 for purposes removal, yet simultaneously argue that the same
MRI results are not causally related to the accident in controversy.
Pre-Removal
Notwithstanding the above, we find Defendants are correct in their
contention that Plaintiffs may “simply amend or supplement their
petition and have this matter transferred to the District Court where
damages are not capped.” Rec. Doc. 4 at 4. Louisiana law is clear that
“a plaintiff must affirmatively renounce the right to accept a judgment
in excess of $75,000 for his pre-removal state court pleadings and
stipulations to bind him.” La.Code Civ. Proc. art. 862; Levith v. State
Farm Fire & Cas. Co., No. CIV A 06-2785, 2006 WL 2947906, at *2 (E.D.
La. Oct. 11, 2006). As a result, Plaintiffs motion for remand is
GRANTED, provided each Plaintiff renounces his or her right to receive
a judgment in excess of $75,000 dollars, with a binding stipulation.
Plaintiff shall file signed stipulations no later than December 22,
2017.

New Orleans, Louisiana, this 12th day of December, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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