Brooks v. Cox Communications of Louisiana, LLC et al
Filing
35
ORDER AND REASONS DENYING 15 Motion to Remand, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 12/10/2018. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHERYLYN BROOKS
CIVIL ACTION
VERSUS
NO. 18-376
COX COMMUNICATIONS, LLC ET AL.
SECTION "B"(5)
ORDER AND REASONS
Plaintiff filed a motion to remand for lack of subject matter
jurisdiction, alleging lack of diversity jurisdiction. Rec. Doc.
15. Cox Communications Louisiana, LLC timely filed a response in
opposition. Rec. Doc. 17. Plaintiffs then sought, and were granted,
leave to file a reply. Rec. Doc. 29. For the reasons discussed
below,
IT IS ORDERED that the motion to remand is DENIED.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff
Communications
filed
of
a
complaint
Louisiana,
LLC,
against
Cox
defendants
Communications,
Cox
Inc.,
National General Insurance Company, and John Doe in Louisiana state
court after a vehicle accident. Rec. Doc. 1-2. Plaintiff alleges
that
a
Cox
Communications
of
Louisiana,
LLC
and/or
Cox
Communications, Inc truck rear-ended her vehicle causing damages
and injuries, and driver, John Doe, fled the scene of the accident.
Id. at 1. Plaintiff is domiciled in Louisiana and alleges that
John Doe, who driving the vehicle, is also domiciled in Louisiana
and was on a mission for Cox Communications of Louisiana, LLC
1
and/or Cox Communications, Inc. Id. at 3. Defendants filed a notice
of removal to federal court and an answer denying plaintiff’s
claims. Rec. Docs. 1, 3. Defendants removed on the basis of
diversity jurisdiction, asserting that they are all domiciled in
foreign states and that the domicile of John Doe is not relevant.
Rec. Doc. 1 at 1. Defendants further assert that the amount in
controversy exceeds $75,000. Id at 2. Defendants assert in a
separate motion that they were not John Doe’s employer and that he
was not acting in the course and scope of any employment for them
during the accident. Id. at 2.
Plaintiff filed the instant motion to remand the matter back
to state court, claiming incomplete diversity between the parties
on the basis of John Doe’s citizenship, and asserting that the
amount in controversy is below $75,000 as stated in her recently
submitted stipulation. Rec. Doc. 15. Defendant filed a response in
opposition disputing the amount in controversy and asserting that
diversity of citizenship exists between the parties because the
citizenship of John Doe should not be considered. Rec. Doc. 17.
Plaintiff argues that there is not complete diversity between
parties because John Doe, the driver, is alleged in her complaint
to be domiciled in Louisiana. Rec. Doc. 15. Plaintiff argues that
the fictitious defendant is identifiable because she specifically
describes the individual as an African-American male driving a Cox
Cable vehicle and wearing a Cox shirt. Rec. Doc. 15-1 at 5.
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Plaintiff
asserts
that
she
had
time
to
interact
with
the
identifiable John Doe, and therefore the court should consider his
citizenship in determining diversity. Id. Furthermore, plaintiff
asserts that the burden rests on defendants to prove that the
driver was a citizen of another state, if that is the case. Id. at
7. As noted earlier, plaintiff provided a stipulation that her
claim does not exceed $50,000. See Rec. Doc. 15-7 at 1.
Defendants assert that diversity jurisdiction existed at the
time of removal and continues to exist. Rec. Doc. 17. Defendants
assert in their notice of removal that they are domiciled in
foreign states, and argue in their response that the fictitious
defendant John Doe does not defeat diversity jurisdiction. Rec.
Docs.
1,
17.
Defendants
obligated
to
disregard
whether
diversity
state
that
fictitious
exists.
Rec.
the
Court
defendants
Doc.
17
at
is
statutorily
in
determining
3.
Furthermore,
defendants argue that there is no evidence that John Doe was a Cox
employee or that he was domiciled in Louisiana. Id at 3-4.
LAW AND ANALYSIS
District Courts have original jurisdiction, called diversity
jurisdiction,
over
all
civil
actions
where
the
matter
in
controversy exceeds $75,000 and is between citizens of different
states. 28 U.S.C. §1332(a). If a civil action over which the
district courts of the United States have original jurisdiction is
brought in a State Court, it “may be removed by the defendant or
3
defendants, to the district court of the United States for the
district and division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). However, “in determining whether a
civil action is removable on the basis of [diversity jurisdiction],
the citizenship of defendants sued under fictitious names shall be
disregarded.” Id at (b). “If at any time before final judgment it
appears that the district court lacks subject matter jurisdiction,
the case shall be remanded.” 28 U.S.C. § 1447(c).
The main issues raised by the parties in the instant motion
to remand are 1) whether the fictitious defendant John Doe defeats
diversity, and 2) whether the amount in controversy is greater
than $75,000. The notice for removal identifies the domicile of
Cox
Communications
Louisiana,
Cox
Communications,
Inc.,
and
National General Insurance Company as located outside of Louisiana
(Rec. Doc. 1 at 1) and plaintiff does not present any arguments
opposing this in her motion, so it is not necessary to analyze the
domicile of the other defendants.
A. Fictitious defendant John Doe does not defeat diversity
The text of the removal statute, 28 U.S.C. §1441(a), clearly
states that “the citizenship of defendants sued under fictitious
names shall be disregarded.” Plaintiff asserts that cases from
this district have identified an exception to the language of
§1441(a), where a fictitiously-named defendant can be considered
by a court if the allegations provide a “definite clue” about the
4
defendant’s identity. Rec. Doc. 15-1 at 5-6.
Plaintiff cites
Tompkins v. Lowe’s Home Center, Inc., a 1994 case from this
district, as support for her assertion. Rec. Doc. 15-1 at 5 (citing
Tompkins v. Lowe's Home Ctr., Inc., 847 F. Supp. 462, 464 (E.D.
La. 1994)). However, a recent case from this district rejected
Tompkins’ holding, noting that Tompkins relied on a case that
predated the addition of the language to §1441 instructing courts
to disregard fictitious names. See, Dupont v. Costco Wholesale
Corp., No. 17-4469, 2017 WL 3309599, at *2 (E.D. La. Aug. 3, 2017).
While
a
few
older
cases
in
this
district
have
applied
this
exception, more recent cases have rejected this interpretation and
continued to disregard the identity of fictitious defendants in
evaluating diversity. See Breaux v. Goodyear Tire & Rubber Co.,
No. 15-0837, 2015 WL 4635566, at *2 (E.D. La. Aug. 3, 2015)
(holding that the language of §1441 is clear and explicit and
acknowledging “the more recent cases in this circuit that have
indicated that the language of §1441 does not allow for the
definite clue jurisdictional exception. . .”); Alonzo v. Shoney's,
Inc., No.00-3109, 2001 WL 15641, at *3 (E.D. La. Jan. 5, 2001)
(noting that the Fifth Circuit has never addressed the “definite
clue” argument but finding it unpersuasive “that the unambiguous
language
‘shall
be
disregarded’
allows
for
the
proposed
exception.”). The Fifth Circuit has held that §1441(a) does not
apply when a fictitious defendant is identified, and a named party
5
is substituted for the John Doe defendant. See Doleac ex rel.
Doleac v. Michalson, 264 F.3d 470, 477 (5th Cir. 2001). However,
this is not the case before the Court today as plaintiff is not
seeking to substitute John Doe with a named party.
Therefore,
this Court is not persuaded that the clear language of §1441 allows
for
an
exception
permitting
the
consideration
of
fictitious
defendants. Fictitious defendant John Does cannot defeat diversity
jurisdiction in this case.
B. Amount in Controversy
When a case is removed from a state court that prohibits
plaintiffs from petitioning for a specific monetary amount, as
Louisiana does, the Fifth Circuit has held that “the removing
defendant must prove by a preponderance of the evidence that the
amount in controversy is adequate.” Felton v. Greyhound Lines,
Inc., 324 F.3d 771, 773 (5th Cir. 2003). This requirement is met
if: “(1) it is apparent from the face of the petition that the
claims are likely to exceed $75,000, or, alternatively, (2) the
defendant sets forth ‘summary judgment type evidence’ of facts in
controversy that support a finding of the requisite amount.”
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002). In this case, defendants did not provide summary
judgment type evidence, so this Court considers only whether it is
facially
apparent
from
the
removal
petition
that
plaintiff’s
claims are likely to exceed $75,000. Defendants correctly note
6
that
plaintiff’s
current
condition
does
not
control
whether
jurisdiction was proper at the time of removal, and that once the
court’s jurisdiction is established, subsequent events reducing
the amount in controversy generally do not divest the court of
diversity jurisdiction. Rec. Doc. 12 at 2. Therefore, in reaching
its decision, this Court considers the injury and damages alleged
in plaintiff’s initial petition rather than her assessment of
injuries now. Defendants noted in their removal petition that
plaintiff’s original complaint alleged that her injuries included
herniations at C4-C5, C5-C6, L3-L4, and L4-L5, trapezius strain,
thoracic strain, sacroiliac strain, left shoulder strain, left
shoulder contusion, and injury to the muscles, nerves, tissues,
joints and discs of the cervical and lumbar spine. Rec. Doc. 1-2
at 2. Plaintiff’s damages further included:
“past,
present
and
future
medicine,
drugs,
hospitalization, medical care, attendant and support care,
loss wages, loss of wage earning capacity, pain and
suffering,
residual
disabilities,
mental
anguish,
emotional upset and distress, loss of enjoyment of life,
loss of personal services and other psychological
sequelae.” Id. at 3.
A brief comparison to other cases where the Fifth Circuit
applied the “facially apparent” test to determine whether the
amount
in
controversy
requirement
was
met
aids
the
present
analysis. In Luckett v. Delta Airlines, Inc., the Fifth Circuit
found that it was facially apparent from a plaintiff’s original
petition that damages exceeded $75,000 where the plaintiff alleged
7
damages for “property, travel expenses, an emergency ambulance
trip,
a
six
day
stay
in
the
hospital,
pain
and
suffering,
humiliation, and [] temporary inability to do housework after
hospitalization.” Luckett v. Delta Airlines, Inc., 171 F.3d 295,
298 (5th Cir. 1999). Similarly, in Gebbia v. Wal-Mart Stores, Inc.,
the
Fifth
Circuit
plaintiff’s
claim
held
it
exceeded
was
facially
$75,000
apparent
where
that
plaintiff
the
alleged
injuries to her “right wrist, left knee and patella, and upper and
lower back” and damages including “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.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880,
883 (5th Cir. 2000). Conversely, in Simon v. Wal-Mart, the Fifth
Circuit held that the district court should have remanded the
action because the plaintiff’s claim of suffering “bodily injuries
and
damages
shoulder,
including
soft-tissue
but
not
limited
injuries
to
throughout
a
her
severely
body,
injured
bruises,
abrasions and other injuries . . . ” was distinguishable from
Luckett. See Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851
(5th Cir. 1999). It was noted in the latter opinion that the
plaintiff’s complaint was not specific, alleged damages from less
severe physical injuries and did not allege emotional distress,
disability, impairments, or other claims that would have supported
a larger monetary basis for federal jurisdiction. Id. Comparing
8
these cases to the present case, the injuries and damage alleged
by this plaintiff fall closer to Luckett and Gebbia than Simon.
Plaintiff alleged severe physical injuries, including multiple
herniations as well as loss of wages, emotional distress, and other
damages that support a larger monetary basis. Therefore, on its
face plaintiff’s complaint supports damages exceeding $75,000.
Plaintiff provided a stipulation limiting her damages to
$50,000 exclusive of interest and costs and asserting that “it has
become clear [she] did not suffer from a herniated disc in her
spine;
rather,
she
aggravated
a
pre-existing
degenerative
condition.” Rec. Doc. 15-7 at 1. However, the Fifth Circuit cases
cited above, and severe injuries alleged here, even in aggravation
of preexisting severe medical conditions, establish the value of
plaintiff’s damages meets the diversity amount threshold.
New Orleans, Louisiana, this 10th day of December, 2018 .
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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