Gibson v. 21st Century Centennial Insurance Company

Filing 9

ORDER granting 6 Motion to Remand. FURTHER ORDERED that this case is REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana. Signed by Judge Jay C. Zainey on 8/10/2018. (Attachments: # 1 Remand Letter) (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DEBRA GIBSON

CIVIL ACTION

VERSUS

NO. 18-5949

21st CENTURY CENTENNIAL
INSURANCE COMPANY

SECTION A(4)

ORDER AND REASONS
Before the Court is a Motion to Remand to State Court (Rec. Doc. 6) filed by Plaintiff
Debra Gibson (“Gibson”).

Defendant 21st Century Centennial Insurance Company (“21st

Century”) opposes the motion. (Rec. Doc. 7). The motion, set for submission on August 8, 2018,
is before the Court on the briefs without oral argument. Having considered the motion and
memoranda of counsel, the record, and the applicable law, the Court finds that Plaintiff’s Motion
to Remand to State Court (Rec. Doc. 6) is GRANTED for the reasons set forth below.
Plaintiff initiated this suit in state court seeking damages for her personal injuries allegedly
sustained in an automobile accident. Plaintiff alleges that on or about April 7, 2016, she was
involved in an accident with an uninsured motorist while traveling on Earhart Boulevard in New
Orleans, Louisiana. Thereafter, on March 29, 2018, Plaintiff filed a Petition for Damages against
her uninsured motorist carrier, Defendant 21st Century in Civil District Court for the Parish of
Orleans, Louisiana. On June 15, 2018, Defendant removed the action to this Court alleging
subject-matter jurisdiction under 28 U.S.C. § 1332—diversity jurisdiction. Plaintiff now moves
for this Court to remand this matter back to state court contending that Defendant has not met its
burden as to the jurisdictional amount in controversy.

It is well-established that the party invoking the jurisdiction of federal courts has the burden
of proving that the exercise of such jurisdiction is proper. St. Paul Reinsurance Co., Ltd. v.
Greenburg, 134 F.3d 1250, 1253 (5th Cir. 1998) (citing Gaitor v. Peninsular & Occid. S.S. Co.,
287 F.2d 252, 253–54 (5th Cir. 1961)). Any doubt regarding whether removal jurisdiction is
proper should be resolved against federal jurisdiction and in favor of remand. 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)).
In Luckett v. Delta Airlines, Inc., the Fifth Circuit summarized the analytical framework
for determining whether the amount in controversy requirement is met in cases removed from
Louisiana state courts where specific allegations as to damage quantum are not allowed. 171 F.3d
295, 298 (5th Cir. 1999). In such cases, the removing defendant, as the party invoking jurisdiction
in a federal court, bears the burden of proving, by a preponderance of the evidence, that the amount
in controversy exceeds $75,000.00. Id. (citing De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.
1993)). As the Fifth Circuit explained:
The defendant may make this showing in either of two ways: (1) by demonstrating
that it is “facially apparent” that the claims are likely above $75,000, or (2) by
setting forth the facts in controversy—preferably in the removal petition, but
sometimes by affidavit—that support a finding of the requisite amount.
Id. (citing Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)); Gebbia v. Wal-Mart
Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000).
To meet its burden, Defendant points out that “Plaintiff’s Petition for Damages does not
offer a binding stipulation that [P]laintiff will not seek to enforce any judgment that may be
awarded in excess of $75,000.00, as would be required pursuant to Davis v. State Farm, No. 06560, [2006 WL 1581272, at *1] (E.D. La. June 7, 2006).” (Rec. Doc. 1, p. 2–3, ¶ 7) (citations
omitted). Defendant additionally notes that in response to Defendant’s Requests for Admissions,
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Plaintiff denied Defendant’s request that “[P]laintiff . . . remit or waive the excess of any judgment
rendered in state court above $75,000.00, exclusive of interest and costs.” Id. at p. 3, ¶ 8.
To meet its burden, Defendant only shows that Plaintiff would not enter into a binding
stipulation to renounce her right to a judgment in excess of $75,000.00. The law requires more
than a showing that Plaintiff would not stipulate to $75,00.00 for a defendant to meet its initial
burden. Removal cannot be based simply upon conclusory allegations. Gaus v. Miles, Inc., 980
F.2d 564, 567 (9th Cir. 1992).
First, Defendant has not referred to the Plaintiff’s Petition for Damages to make a “facially
apparent” showing that the amount in controversy exceeds $75,000.00 Where a district court must
make a “facially apparent” determination, “the proper procedure is to look only at the face of the
complaint and ask whether the amount in controversy was likely to exceed [$75,000.00].” Allen
v. R & H Oil & Gas Co., 63 F.3d 1326 (1995). Defendant has failed to meet its burden under the
“facially apparent” inquiry.
According to the very case that Defendant cites, Mitchell v. Amica Mut. Ins. Co.,
defendants must do more than point to state law that might allow a plaintiff to recover more than
the jurisdictional amount; the defendant must submit evidence that the actual amount in
controversy exceeds $75,000.00. No. 14-2766, 2015 WL 1608670, at *1, *3 (E.D. La. Apr. 10,
2015) (emphasis added). The United States Supreme Court decided that defendants do not need
to attach evidence supporting the alleged amount in controversy to the notice of removal. See Dart
Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014). Interpreting that
decision, the Fifth Circuit has stated in dicta that “[t]hat has long been our approach. Dart
Cherokee also explained, however, that once the notice of removal’s asserted amount is
‘challenged,’ the parties must submit proof and the court decides by a preponderance of the

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evidence, whether the amount-in-controversy requirement has been satisfied.” Mitchell, at *3 n.
43 (citing Statin v. Deutsche Bank Nat. Trust. Co., 599 Fed.App’x. 545 (5th Cir. 2014)).
Here, the Notice of Removal’s amount in controversy allegation has been “challenged.”
Besides re-iterating that Plaintiff refused to stipulate to damages below $75,000.00, Defendant
fails to submit any proof that the amount in controversy exceeds $75,000.00. On the other hand,
Plaintiff provides a letter from her counsel to Defense counsel implying that the amount in
controversy appears to be less than $75,000.00. (Rec. Doc. 6-5) (providing a calculation of
damages and stating, inter alia, “I believe the amount in dispute does not exceed $75,000.”).
On its face, Plaintiff’s Petition for Damages does not support the jurisdiction amount.
Defendant does not allege or aver additional facts in support of federal jurisdiction. Therefore,
this Court lacks subject matter jurisdiction.

Accordingly;
IT IS ORDERED that Plaintiff’s Motion to Remand to State Court (Rec. Doc. 6) is
GRANTED;
IT IS FURTHER ORDERED that this case is REMANDED to the Civil District Court for
the Parish of Orleans, State of Louisiana.
August 10, 2018

__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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