Lehmann v. Gray et al

Filing 13

RULING granting 3 MOTION to Remand filed by Cheryl Lehmann. Signed by Judge Frank J. Polozola on 1/22/09. (BP, )

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA CHERYL LEHMAN VERSUS NEW HAMPSHIRE INSURANCE CO. RULING This matter is before the Court on the plaintiff's motion to remand.1 The defendant filed an opposition to this motion.2

CIVIL ACTION NUMBER 08-569-FJP-SCR

However, during a telephone conference dated December 18, 2008, counsel for the defendant stated that the defendant no longer opposes the motion to remand. For reasons set forth below, the

Court finds that the motion to remand shall be granted. The issue before the Court is whether the amount in

controversy requirement of 28 U.S.C. § 1332 has been met in this case. The defendant states in its removal petition that the The

damages in this case could exceed the sum or value of $75,000.

defendant shows this is possible based on the damages described in the plaintiff's petition which include: pain and suffering, mental anguish, loss of enjoyment and of life, medical expenses, and lost wages. The plaintiff has not stipulated that the damages exceed
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Rec. Doc. No. 3. Rec. Doc. No. 5. 1

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$75,000 as required under La. Code Civ. Proc. Art. 893(A)(1).

In

a situation where the plaintiff does not specify a numerical value of the damage claim, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000.3 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."4 The defendant, New Hampshire Ins. Co, did not file an

affidavit with its notice of removal or set forth any facts in controversy. Therefore, the defendant in the instant case must

demonstrate that it is "facially apparent" that the claims are likely above $75,000. The Fifth Circuit in Luckett v. Delta Airlines held that damages likely exceeded $75,000 due to the specificity of damages alleged in the petition.5 The case of Luckett involved a tort

action brought by a plaintiff whose luggage, containing her heart medication, was lost by the defendant airline. The plaintiff

3

De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993).

Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995).
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171 F.3d 295 (5th Cir. 1999). 2

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specifically alleged 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 following her hospitalization."6 The Luckett court held that it

was facially apparent from the plaintiff's petition that damages were likely to exceed $75,000.7 In a case where the plaintiff alleged damages with little specificity, the Fifth Circuit held it was not facially apparent from the petition that damages were likely to exceed $75,000.8 The

court in Simon v. Wal-Mart Stores, Inc. stated: "The instant complaint alleged, with little specificity, damages from less severe physical injuries than in Luckett--an injured shoulder, bruises, and abrasions--and unidentified medical expenses for Simon, plus loss of consortium for Elwin."9 The instant case is closer to Simon than Luckett because the injury/damage allegations in the plaintiff's petition are generic and boilerplate. There is little to no specificity on the type of

injury plaintiff received or identifiable medical expenses incurred by the plaintiff. The mere conclusory allegation by the defendant

Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850, (quoting Luckett, 171 F.3d 295 (5th Cir. 1999)).
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Luckett, 171 F.3d at 298. Simon, 193 F.3d at 851. Id at 850. 3

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that damages exceed $75,000 is insufficient to support its petition for removal. THEREFORE, the Court finds that it is not facially apparent from the plaintiff's petition that damages are likely to exceed 75,000. Therefore; IT IS HEREBY ORDERED that the plaintiff's motion to remand is granted. Baton Rouge, Louisiana, January 22, 2009.

S FRANK J. POLOZOLA

MIDDLE DISTRICT OF LOUISIANA

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