Kerr v. State Farm Fire and Casualty Company
RULING denying 3 Motion to Remand. Signed by Judge Frank J. Polozola on 5/31/2011. (JDL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
This matter is before the court on a motion to remand filed by
John Kerr (hereafter Kerr) and opposed by State Farm Fire &
Casualty Company (hereinafter State Farm).1
For the reasons which
follow, the Court finds that Kerr’s motion to remand this suit back
to state court is denied.2
Kerr, the plaintiff, seeks damages from an alleged incident
destruction, he claims he lost his 2010 Alpha 2011 SCX Bass Boat
with a Mercury 250 Pro XS Engine along with numerous Kisler rods,
reels, and tackle.
Plaintiff initially filed this suit against
State Farm in the 21st Judicial District Court for the Parish of
Livingston claiming damages for the above property loss plus lost
Rec. Doc. Nos. 3, 6.
The Court has considered all of the contentions of the
partes whether specifically discussed herein or not.
wages, mental anguish, loss of use, and loss of sponsorships along
with other unspecified damages.
In plaintiff’s proof of loss for
his insurance claim, the plaintiff signed a statement swearing that
the value of his lost boat and its contents was $50,000.
no mention of the value of his other claims.
Plaintiff accuses State Farm of negligence in assisting with
his claim by refusing to abide by their contract and failing to:
pay within a reasonable time following a satisfactory proof of
loss; to affirm or deny coverage within a reasonable time; and to
pay for damages.
Defendant timely removed this suit to United
States District Court for the Middle District of Louisiana on the
basis of diversity jurisdiction.
Plaintiff now seeks to remand
this case to the Louisiana State Court alleging that this suit does
not meet the $75,000 amount in controversy required under 28 U.S.C.
opposition to this motion asserting plaintiff’s claim does exceed
the requisite jurisdictional amount under § 1332.
Law and Analysis
Ambiguous Amount in Controversy
The removing party - in this case State Farm - bears the
burden of proving by a preponderance of the evidence that federal
However, when plaintiffs do not offer a set
See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335,
rehearing denied, 70 F.3d 26 (5th Cir. 1995)
amount in their state court petition because a plaintiff in
Louisiana State Courts is generally prohibited from stating the
amount of damages he seeks in his suit, the Fifth Circuit Court of
Appeals has created a method for the removing party to establish
that the amount in controversy requirement of § 1332(a) has been
According to the Fifth Circuit, removal is proper if it is
facially apparent that the amount in controversy is over the
statutory requirement, or in the absence of facial clarity, the
removing party may support federal jurisdiction by setting forth
facts that support a finding of the required amount.5
It is clear that these jurisdictional facts must be judged at
the time of the removal.6
Upon a finding of subject matter
jurisdiction, attempts by the non-moving party to show that the
amount in controversy is below the jurisdictional requirement via
affidavit, stipulation, or amendment to the pleadings do not
generally deprive the court of jurisdiction.7
Additionally, if at
the time of removal it is facially apparent that the amount in
controversy exceeds $75,000, then the court need not consider any
See La. Code Civ. P. 893(A)(1); Allen, 63 F.3d at 1335.
Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th
See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.
283, 292, 58 S.Ct. 586, 82 L.Ed. 845 (1938).
However, if the amount in controversy is
not facially apparent from the state court petition, then postremoval affidavits may be considered by the Court in determining
whether removal was proper.9
If the moving party can produce a preponderance of the
evidence to show that the amount in controversy requirement is met,
the non-moving party must prove to a legal certainty that the
amount in controversy does not exceed $75,000.10
As a means of
providing this proof, a non-moving party “must file a binding
stipulation or affidavit with the complaint” in order to defeat
removal because once removed all later filings are irrelevant.11
Additionally, while the Louisiana Code of Civil Procedure
generally prohibits a plaintiff from including the amount of
damages in the complaint, it creates an exception for situations
when the amount in controversy is “necessary to establish . . . the
lack of jurisdiction of the federal court.”12
When an ambiguous
See Asociacion National de Pescadores a Pequena Escalal O
Artesanales de Columbia (ANPAC) v. Dow Quimica de Columbia S.A.,
988 F.2d 559, 565 (5th Cir. 1993).
See St. Paul Mercury, at 289; Grant v. Chevron Phillips
Chemical Co., 309 F.3d 864, 869 (5th Cir. 2002); De Aguilar v.
Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
De Aguilar, 47 F.3d at 1412 (quoting In Re Shell Oil Co.,
970 F.2d 355, 356 (7th Cir. 1992)).
La. Code Civ. P. 893(A)(1).
amount could create federal jurisdiction, the state court petition
must include a general allegation that it does not meet the federal
Chambers,14 the court reasoned that the plaintiff had, “in effect,
conceded” that the amount in controversy was greater than $75,000
by not alleging that a lesser amount in the original state court
With this tacit concession, the court assumed that the
damages sought by the plaintiff exceeded $75,000.16
Here, the plaintiff either violated state law or effectually
conceded that the amount in controversy was met by not including an
allegation in his state court petition that the claim did not
exceed $75,000. Even without this concession, the Court finds the
removal was proper because the complaint on its face exceeds the
amount in controversy.
According to the plaintiff’s own insurance
claim, the loss of his property alone cost $50,000.
including lost wages, mental anguish, loss of use, and loss of
sponsorships, the amount awarded would more than likely be in
excess of the additional mount required to satisfy the amount in
controversy requirement of § 1332.
2006 WL 1895479 (W.D. La. Jan. 23, 2006).
See id. at *2 n. 3.
Also, even if this amount in controversy were not facially
apparent and the defendant had only shown that by a preponderance
of the evidence the amount in controversy exceeded $75,000, the
plaintiff failed to file the necessary affidavits or stipulations
with the complaint as required by De Aguilar.
these same stipulations or affidavits would have prevented the
plaintiff from conceding this issue under the Louisiana Civil Code.
The plaintiff’s affidavits and stipulations to this effect filed
after removal to federal court are irrelevant.
By choosing not to
limit his damages sought via affidavit, stipulation, or allegation
in his state court petition, the plaintiff opened himself up to the
possibility of removal to federal court.
plaintiff’s claim is in excess of $75,000, and the parties are
diverse, the Court has proper subject matter jurisdiction under 28
U.S.C. § 1332.
IT IS ORDERED that Kerr’s motion to remand17 be and it is
Baton Rouge, Louisiana, May 31, 2011.
FRANK J. POLOZOLA
MIDDLE DISTRICT OF LOUISIANA
Rec. Doc. No. 3.
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