Hill, et al v. Alford, Jr., et al

Filing 9

ORDER REMANDING CASE TO STATE COURT. Signed by Judge Nannette Jolivette Brown on 2/9/2018.(mmm) (Additional attachment(s) added on 2/9/2018: # 1 Remand Letter) (mmm).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JERMAINE HILL, et al.

CIVIL ACTION

VERSUS

CASE NO. 17-15737

JOE ALFORD, JR., et al.

SECTION: “G”(4)
ORDER

Defendants Joe Alford, 3-Ts Trucking, LLC, and Hallmark Specialty Insurance Company
(collectively, “Defendants”) removed this action from the Civil District Court for the Parish of
Orleans, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332.1 On December 22, 2017,
finding that the notice of removal lacked sufficient information to support subject matter
jurisdiction, the Court ordered Defendants to submit summary-judgment-type evidence regarding
the amount in controversy at the time of removal of this case.2 On January 9, 2018, in response to
the Court’s order, Defendants filed a “Memorandum in Support of Diversity Jurisdiction.”3 Having
considered the notice of removal, the “Memorandum in Support of Diversity Jurisdiction,” and the
applicable law, the Court finds that Defendants have not established that this Court has subject
matter jurisdiction over this matter. Accordingly, this case is hereby remanded to the Civil District
Court for the Parish of Orleans.
I. Background
On October 30, 2017, Plaintiffs Jermaine Hill and Freddie Cosey filed a petition for

1

Rec. Doc. 1.

2

Rec. Doc. 4.

3

Rec. Doc. 5.

1

damages in the Civil District Court for the Parish of Orleans, Louisiana.4 On December 8, 2017,
Defendants jointly filed a notice of removal in this Court.5
In the Memorandum in Support of Diversity Jurisdiction, Defendants first argue that it is
facially apparent from the petition for damages that Plaintiff Freddie Cosey’s (“Plaintiff”) claims
exceed $75,000, based on the nature of Plaintiff’s personal injuries and corresponding medical
expenses, as well as other damages, including the following: lost wages, loss of wage earning
capacity, pain and suffering, residual disabilities, mental anguish, emotional upset and distress,
and property damage.6 Defendants additionally assert that, “[P]laintiff’s counsel has represented
that [P]laintiff requires an ‘ACF’ (anterior cervical fusion surgery) per the recommendation of his
treating providers.”7
Moreover, Defendants compare Plaintiff’s claims to those asserted in Gebbia v. Wal-Mart
Stores, Inc., where the plaintiff alleged injuries to the plaintiff’s wrist, left knee and patella, and
upper and lower back.8 Defendants aver that in Gebbia, the Fifth Circuit affirmed the district
court’s denial of a motion to remand on the basis that it was facially apparent from the petition that
the jurisdictional minimum had been met, and that here too, it is facially apparent.9
Furthermore, Defendants assert, Plaintiff’s medical treatment is ongoing, and at the time

4

Rec. Doc. 1-4. Defendants subsequently settled with Plaintiff Jermaine Hill, and they do not address
Jermaine Hill’s injuries in their memorandum in support of diversity jurisdiction. See Rec. Doc. 5.
5

Rec. Doc. 1.

6

Rec. Doc. 5 at 5.

7

Id.

8

233 F.3d 880 (5 Cir. 2000).

9

Id. at 2–3.

2

of removal, Plaintiff had incurred at least $10,703.14 in past medical expenses.10 Defendants also
provide a summary of Plaintiff’s medical treatment since November 1, 2016, including diagnosis
of a disc herniation, prescription of pain medication, an MRI scan, injections, and recommendation
that plaintiff undergo an anterior cervical discectomy with cervical disk arthroplasty.11
Defendants cite three district court cases—in the Eastern, Middle, and Western Districts of
Louisiana—where, Defendants assert, the injuries were similar to those incurred by Plaintiff in
this case, and in each of those cases, Defendants assert, the court found that the jurisdictional
requirement had been met.12 Defendants cite three additional state court cases “involving similar
injuries,” where the courts awarded general damages in excess of $75,000.13
Finally, Defendants cite Fernandez v. Allstate Ins. Co., a district court case in the Eastern
District of Louisiana, to support the argument that “plaintiff’s refusal to stipulate that his damages
do not exceed the jurisdictional minimum is one factor to be considered in determining whether
the jurisdictional minimum is met.”14
II. Applicable Law
A defendant may generally remove a civil action filed in state court if the federal court has

10

Id. at 3.

11

Id. at 6–7.

12

Id. at 3–4 (citing McDonald v. Target Corporation of Minnesota, Civ. A. No. 11–598, 2011 WL 2160495
(E.D. La. Jun. 1, 2011); Robinson v. K-Mart Corp., No. 11–12–RET–DLD, 2011 WL 2790192 (M.D. La. Apr. 28,
2011); and Gradney v. Dixie Partners IV, L.P., No. 2:14 CV-01069, 2014 WL 3891367 (W.D. La. Aug. 8, 2014)).
13
Id. at 4–5 (citing Jackson v. CSX Transp., Inc., No. 97–CA–0109. (La. App. 4 Cir. 12/23/97); 712 So.2d
514; Wood v. Subsea Intern., Inc., No. 99-CA-1320 (La. App. 4 Cir. 3/29/00); 766 So.2d 563; and Davis v. Kreutzer,
No. 93-CA-1498 (La. App. 4 Cir. 2/25/94); 633 So.2d 796).
14

Id. at 2 (citing 2008 WL 314405 (E.D. La. 2008)).

3

original jurisdiction over the action.15 The removing party bears the burden of demonstrating that
federal jurisdiction exists.16 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.”17
The Supreme Court has stated, “The rule governing dismissal for want of jurisdiction in
cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by
the plaintiff controls if the claim is apparently made in good faith.”18 Thus, if a plaintiff claims
that he is seeking a sum less than $75,000, the burden is on the defendant to show that the plaintiff’s
claim was not made in good faith for the purpose of establishing that jurisdiction is proper in
federal court.19
Likewise, under Fifth Circuit law, when the plaintiff alleges a damage figure in excess of
the required amount in controversy, “that amount controls if made in good faith.”20 If the plaintiff
pleads damages less than the jurisdictional amount, this figure will also generally control, barring
removal.21 “Thus, in the typical diversity case, the plaintiff remains the master of his complaint.”22
When the plaintiff has alleged an indeterminate amount of damages, the Fifth Circuit

15

See 28 U.S.C. § 1441(a).

16

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

17

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

18

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938).

19

Id.

20

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

21

Id.

22

Id.

4

requires the removing defendant to prove by a preponderance of the evidence that the amount in
controversy exceeds $75,000.23 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.”24 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 $75,000.25 Finally, the
jurisdictional facts that support removal “must be judged at the time of the removal, and any postpetition affidavits are allowable only if relevant to that period of time.”26
III. Analysis
Defendants argue that (1) it is facially apparent from the petition for damages that
Plaintiff’s claims exceed $75,000; (2) the nature of Plaintiff’s injuries and medical costs, as well
as damages awarded in comparable cases, establish that Plaintiff’s claims exceed $75,000; and (3)
Plaintiff’s failure to stipulate that his claims are not less than $75,000 establishes that the
jurisdictional requirement is met.
Defendants first argue that as in Gebbia, it is facially apparent from the petition in this case
that the jurisdictional minimum is met. However, in the December 22 Order, the Court explained
why, here, it was not facially apparent from the petition for damages that the requisite amount is
23

Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000); see also Simon, 193 F.3d at 850; Allen,
63 F.3d at 1335.
24

Simon, 193 F.3d at 850 (quoting Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999)); see also
Allen, 63 F.3d at 1335.
25

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

26

Allen, F.3d at 1335.

5

met.27 Moreover, Gebbia is distinguishable from the facts of this case.28 In Gebbia, the plaintiff
filed a motion to remand after pre-trial discovery claiming that “due to continuous medical
treatment of her injuries, Plaintiff was unable to confirm the amount of damages claimed.”29 On
appeal, the Fifth Circuit stated that “once the district court’s jurisdiction is established, subsequent
events that reduce the amount in controversy to less than $75,000 generally do not divest the court
of diversity jurisdiction.”30 The Fifth Circuit found that it was facially apparent from the plaintiff’s
original petition that the claimed damages exceeded $75,000.31 The Fifth Circuit noted that the
plaintiff alleged that she sustained injuries to her right wrist, left knee, left patella, upper back, and
lower back.32
Gebbia is not a quantum study regarding the amount of damages awarded for particular
injuries; it merely stands for the proposition that the amount in controversy was facially apparent
in that case and subsequent events that reduced the amount in controversy did not divest the court
of jurisdiction. Furthermore, in this case, Plaintiff Freddie Cosey alleges only that he suffered a
cervical disc herniation, and this Court has already determined that it is not facially apparent that
the amount in controversy exceeds $75,000. Accordingly, because it is not facially apparent that
the amount in controversy is met, Defendants must set forth facts in controversy that establish that
Plaintiff’s claims exceed $75,000.

27

Rec. Doc. 4 at 3.

28

Gebbia, 233 F.3d 880.

29

Id. at 882.

30

Id. at 883 (internal citations omitted).

31

Id.

32

Id.

6

The only additional facts set forth by Defendants in the “Memorandum in Support of
Diversity Jurisdiction” are Plaintiff’s past medical expenses totaling at least $10,703.14, as well
as a description of Plaintiff’s medical treatment. With respect to future medical costs, Defendants
assert that Plaintiff was recommended to undergo an anterior cervical discectomy with cervical
disk arthroplasty, but do not provide the cost of this procedure. Defendants further state that
Plaintiff’s medical treatment is ongoing, but do not provide any evidence as to an assessment of
future costs.
Defendants additionally cite three district court cases that Defendants assert involved
similar injuries, holding that the jurisdictional requirement was met.33 However, those cases are
not binding on this Court, and in each case, the court relied on facts in the record, including the
plaintiff’s medical records, in determining that the plaintiff’s claims exceed $75,000.34 In this case,
Defendants do not state explicitly what additional medical costs Plaintiff is likely to incur or cite
to any specific evidence in the record that would establish potential future medical costs based on
the nature of Plaintiff’s injuries. Moreover, Defendants do not set forth facts indicating that
Plaintiff’s past or future medical costs total more than $10,703.14.
Furthermore, Defendants do not provide specifics as to any other claim for damages alleged
by Plaintiff that would establish that the amount in controversy requirement is met. Defendants

33

Rec. Doc. 5 at 3–4 (citing McDonald, 2011 WL 2160495; Robinson, 2011 WL 2790192; and Gradney,
2014 WL 3891367).
34

McDonald, 2011 WL 2160495 at *1 (citing record evidence reflecting the nature of plaintiff’s injuries in
determining that the defendant had met its burden to show that the jurisdictional minimum exists); Robinson v. KMart Corp., 2011 WL 2790192 at *4 (M.D. La. 2011) (citing record evidence revealing that the plaintiff “suffered
multiple herniated discs, that may require surgery in the future, cervical radiculopathy, cervical strain, cervical
spondylosis, shoulder strain, and injuries to her head, shoulder, arm” in determining that it was more probable than
not that the jurisdictional requirement was met; and Gradney v. Dixie Partners IV, L.P., 2014 WL 3891367 (W.D. La.
2014) (holding that “[t]he medical records support Dixie's assertion that the amount in controversy is present”).

7

cite to a string of Louisiana state court cases to demonstrate that courts have awarded general
damages in excess of $75,000 in cases where, Defendants argue, the plaintiff suffered similar
injuries.35 However, the burden is on “the removing defendant [to] prove by a preponderance of
the evidence that the amount in controversy exceeds $75,000.”36 By pointing to cases where
plaintiffs recovered general damages in excess of $75,000, Defendants have merely exemplified
the amount in damages that Plaintiff could recover; yet, Defendants wholly ignore cases involving
similar injuries where plaintiffs received general damages less than $75,000.37 Moreover,
Defendants’ comparative exercise only suggests that a range of general damages exists for cases
involving similar injuries, with a low end that is less than $75,000 and a high end that is more than
$75,000. To the extent “[t]he Fifth Circuit has explained a ‘could well’ standard sounds more like
a ‘possibility’ standard of proof, rather than a ‘more likely than not’ standard,” Defendants’
speculation of general damages that Plaintiff could recover is insufficient to establish subject
matter jurisdiction.38
Last, Defendants’ argument that Plaintiff’s failure to stipulate that his damages are less
than $75,000 establishes that their damages exceed $75,000 is unavailing. The burden on
Defendants “to produce information” that the amount in controversy exceeds $75,000 is an

35

Rec. Doc. 5 at 4–5 (citing Jackson, 712 So.2d 514; Wood, 766 So.2d 563; and Davis, 633 So.2d 796).

36

Gebbia, 233 F.3d at 882.

37

See, e.g., Nguyen v. Grafton, 2007-0046 (La. App. 4 Cir. 6/27/07), 962 So. 2d 488), 490 (holding that trial
court’s award of general damages in the amount of $35,000 to plaintiff who suffered two herniated cervical discs was
not an abuse of discretion; see also, e.g., Payne v. Fimiano, 4642 (La. Ct. App. 5/12/86); 489 So. 2d 332, 335 (holding
that $55,000 in general damages to plaintiff who suffered a herniated disc was proper); see also, e.g., Rehm v. Morgan,
04-344 (La. App. 5 Cir. 10/26/04); 885 So. 2d 687, 693 (holding that $150,000 award of general damages to plaintiff
who suffered a herniated disc was excessive and reduced the award to $50,000).
38

Lee v. Standard Fire Ins. Co., No. CV 17-1088, 2017 WL 2983234, at *4 (E.D. La. July 7, 2017) (Brown,
J.) (citing Allen, 63 F.3d at 1336).

8

“affirmative” one.39 Moreover, the Fifth Circuit has made clear that Plaintiff’s “failure to object to
removal or jurisdiction . . . does not relieve [Defendants] of [their] burden to support federal
jurisdiction at the time of removal.”40
IV. Conclusion
For the reasons stated above, Defendants have not met their burden of establishing that the
actual amount in controversy exceeds $75,000. Thus, it appears based on the facts and evidence at
the time of removal, this Court lacks subject matter jurisdiction over this action. Accordingly,
IT IS HEREBY ORDERED that the above-captioned matter is remanded to the Civil
District Court for the Parish of Orleans, Louisiana.

9th
NEW ORLEANS, LOUISIANA, this ____ day of February, 2018.

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

39
Simon, 193 F.3d at 851 (holding that defendant “had an affirmative burden to produce information . . .
sufficient to show by a preponderance of the evidence that the amount in controversy exceeded $75,000.” (internal
citation and quotation marks omitted)).
40

Id.

9