West v. Red Frog Events, LLC et al

Filing 57

NOTICE AND ORDER: as to 1 Notice of Removal, filed by Red Frog Events, LLC. Red Frog Events, LLC shall file a memorandum and supporting evidence concerning subject matter jurisdiction, specifically whether the amount in controversy requirem ent of 28 U.S.C. § 1332 is met, within ten (10) days of this Notice and Order. Plaintiff shall file either: (1) a memorandum and supporting evidence concerning the courts subject matter jurisdiction, specifically, whether the amount in cont roversy requirement of 28 U.S.C. § 1332 is met; or (2) a supplemental memorandum in support of the pending Motion to Remand, limited solely to the issue of amount in controversy, within ten (10) days after the filing of Red Frog Events, LLCs memorandum. Signed by Magistrate Judge Erin Wilder-Doomes on 6/22/2018. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
VANESSA WEST
CIVIL ACTION
VERSUS
NO. 17-1640-BAJ-EWD
RED FROG EVENTS, LLC, ET AL.
NOTICE AND ORDER
Plaintiff, Vanessa West (“Plaintiff”), filed a Petition for Damages (the “Petition”) against
Red Frog Events, LLC (“Red Frog”); ABC Insurance Company; Peterson Builders Framing
Contractors, LLC; DEF Insurance Company; North South Renovations, Inc.; GHI Insurance
Company; and the Parish of West Feliciana in state court for damages allegedly arising out of
injuries Plaintiff sustained when a dome-shaped obstacle Plaintiff was climbing as part of the
“Warrior Dash” collapsed. Per her Petition, Plaintiff alleges that she “sustained serious injuries to
various parts of her body”1 and that she “suffered bodily injuries, pain and suffering, mental
anguish, loss of enjoyment of life, medical expenses and permanent disability, all of which warrant
an award in her favor for compensatory damages.”2
On November 9, 2017, Red Frog removed this suit on the basis of diversity jurisdiction
pursuant to 28 U.S.C. § 1332.3 Red Frog contends that, with the exception of the Parish of West
Feliciana, the parties are completely diverse.4 Red Frog further asserts that “it is apparent from

1

R. Doc. 1-2, p. 25, ¶ III.

2

R. Doc. 1-2, p. 27, ¶ V.

3

R. Doc. 1.

4

On December 8, 2017, Plaintiff filed a Motion to Remand based upon her assertion that the Parish of West Feliciana
is a properly joined, non-diverse defendant. R. Doc. 13. Red Frog has filed an opposition to the Motion to Remand.
R. Doc. 20. The instant Notice and Order does not address – nor does it ask the parties to further address – the issue
of whether the Parish of West Feliciana is a properly joined defendant. That issue has already been briefed by the
parties. The instant Notice and Order is limited solely to the issue of whether Red Frog can meet its burden of
establishing the requisite amount in controversy for the exercise of federal subject matter jurisdiction pursuant to 28
U.S.C. § 1332.

1

the face of Plaintiff’s Petition for Damages that the amount in controversy for the Plaintiff,
exclusive of interest and costs, exceeds this Court’s $75,000.00 jurisdictional amount.”5 In support
of that position, Red Frog asserts that Plaintiff failed to include an allegation regarding the
jurisdictional threshold pursuant to La. C.C.P. art. 893 and points to Plaintiff’s assertion that she
sustained “serious injuries” and her list of sought-after damages.6 Additionally, Red Frog states
that “[d]uring pre-suit discussions, Plaintiff reported that she sustained the following, specific
injuries as a result of the obstacle collapse: (1) a concussion, for which she is currently treating
one year later, and for which she is taking medications; (2) various soft tissue injuries to thumb,
hand, neck, and knee, for which she is still treating over one year later; and (3) lost wages from
her athletic training job because she cannot work weekends.”7 Red Frog provides citations to
various case law which it contends support a general damage award in excess of $75,000 “even
before considering medical expenses.”8 Finally, Red Frog asserts that it “inquired into whether
Plaintiff would be willing to stipulate to damages of less than $75,000.00 in order to obviate the
need to remove this matter. Plaintiff declined to enter into that stipulation.”9
In the Petition, there is no information regarding Plaintiff’s specific injuries, medical
expenses or claimed lost wages. “If the complaint is vague with regard to the types of injuries,
medical expenses incurred, and future medical problems resulting from the incident, the court must
conclude that it was not ‘facially apparent’ that the amount of damages would exceed $75,000.”10

5

R. Doc. 1, ¶ 16.

6

R. Doc. 1, ¶¶ 17 & 18.

7

R. Doc. 1, ¶ 18.

8

R. Doc. 1, ¶ 19 & n. 12.

9

R. Doc. 1, ¶ 20.

10

Broadway v. Wal-Mart Stores, Inc., Civ.A 00-1893, 2000 WL 1560167, at *2 (E.D. La. Oct. 18, 2000) (citing Simon
v. Wal-Mart Stores, Inc., 193 F.3d 848, 851 (5th Cir. 1999)). See also, Torres v. Mall of Louisiana, LLC, Civil Action
No. 17-466, 2017 WL 6884347, at * 3 (M.D. La. Dec. 5, 2017) (“While Plaintiff seeks several items of damages, there
is no indication of the amount in controversy related to her alleged damages. Thus, it is not facially apparent from the

2

Although Red Frog provides citations in its Notice of Removal to various cases purporting to set
forth damage awards, without additional information regarding Plaintiff’s injuries, there is no way
to determine whether such cases are potentially analogous11 While Plaintiff alleges a “permanent
disability,” such allegation appears to be generic and untethered to any specific injury. 12 Finally,
this court has held that a the failure to include an article 893(A) allegation,13 as well as the failure
to execute a pre-removal stipulation14 are not in and of themselves determinative of the amount in
controversy.

Petition that the amount in controversy is likely to exceed $75,000.”); Tucker v. Cincinnati Ins. Co., Civil Action 17414, 2017 WL5762436, at * 3 (M.D. La. Aug. 24, 2017) (“‘Courts have routinely held that pleading general categories
of damages, such as ‘pain and suffering, disability, lost wages, loss of earning capacity, medical expenses, etc.,’
without any indication of the amount of damages sought, does not provide sufficient information for the removing
defendant to meet his burden of proving that the amount in controversy is satisfied under the ‘facially apparent’ test.’”)
(quoting Davis v. JK & T Wings, Inc., No. 11-501, 2012 WL 278728, at * 3 (M.D. La. Jan. 6, 2012) (collecting cases)).
11

R. Doc. 1, ¶ 22.

12

See, Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000) (facially apparent that the amount in controversy
met where plaintiff alleged injuries to upper and lower back, right wrist, and left knee and patella and claimed damages
for medical expenses, physical and mental pain and suffering, loss of enjoyment of life, loss of wages and earning
capacity, permanent disability, and disfigurement); Kelly v. Dolgencorp, LLC, Civil Action No. 10-879, 2010 WL
4484359, at * 2 (W.D. La. Nov. 1, 2010) (finding plaintiff’s allegations, including the allegation of permanent
disability, general and conclusory and distinguishing cases in which plaintiff claimed permanent disability in
conjunction with specific injuries); Guidry v. Murphy Oil USA, Inc., 2013 WL 4542433, at * 5 (M.D. La. Aug. 27,
2013) (noting that an allegation of permanent disability or impairment “would significantly increase the amount in
controversy” but that it was not facially apparent that the amount in controversy was met based on plaintiff's
unspecified allegations that he suffered injuries to his left arm, left shoulder, left elbow, and neck and included a
“generic list of damages [that] can be found in many personal injury cases” [physical pain, mental pain and anguish,
medical expenses, and loss of enjoyment of life].); Touchet v. Union Oil Co. of California, 2002 WL 465167, at * 2
(E.D. La. March 26, 2002) (distinguishing Gebbia and explaining that although plaintiff alleged “permanent
disability,” plaintiff did not allege specific injuries like the plaintiff in Gebbia).
13

See, Weber v. Stevenson, Civil Action No. 07-5595, 2007 WL 4441261, at * 4 (M.D. La. Dec. 14, 2007) (“plaintiffs’
failure to follow La. C.C.P. art. 893(A)(1)’s mandate, while entitled to some consideration, in and of itself is not
determinative of the amount in controversy.”); see also, Haydel v. State Farm Mut. Auto. Ins. Co., CIVA 07-939, 2008
WL 2781472, at * 5 (M.D. La. July 10, 2008) (“This Court has held that the failure to make such an allegation is not,
in and of itself, determinative of the amount in controversy; however, such failure is entitled to ‘some consideration’
in making the jurisdictional determination.”) (citing Weber); Machinery Paver Sales, Inc. v. Bomag Americas, Inc.,
Civil Action No. 06-697, 2007 WL 2900489, at * 3 (M.D. La. Oct. 1, 2007) (“Furthermore, the plaintiff does not
include any allegation in its petition, as required by Louisiana Code of Civil Procedure article 893(A)(1), that its
damages were less than the requisite amount to assert federal jurisdiction. While likewise not determinative, the
absence of such an allegation is another factor indicative of a sufficient amount in controversy.”).
14

See, Cole v. Mesilla Valley Transportation, Civil Action No. 16-841, 2017 WL 1682561, at * 5 (M.D. La. March
14, 2017).

3

Based on the allegations set forth in the Petition, as well as the information asserted in the
Notice of Removal, the court sua sponte raises the issue of whether it may exercise diversity
jurisdiction in this matter, specifically, whether the amount in controversy requirement has been
met.
Accordingly,
IT IS ORDERED that Red Frog Events, LLC shall file a memorandum and supporting
evidence concerning subject matter jurisdiction, specifically whether the amount in controversy
requirement of 28 U.S.C. § 1332 is met, within ten (10) days of this Notice and Order.
IT IS FURTHER ORDERED that Plaintiff shall file either: (1) a memorandum and
supporting evidence concerning the court’s subject matter jurisdiction, specifically, whether the
amount in controversy requirement of 28 U.S.C. § 1332 is met; or (2) a supplemental memorandum
in support of the pending Motion to Remand,15 limited solely to the issue of amount in controversy,
within ten (10) days after the filing of Red Frog Events, LLC’s memorandum.16
The case will be allowed to proceed if jurisdiction is adequately established.
Signed in Baton Rouge, Louisiana, on June 22, 2018.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

15

R. Doc. 13.

16

Any submissions pursuant to this Order should be limited solely to the issue of whether the amount in controversy
required for federal subject matter jurisdiction pursuant to 28 U.S.C. § 1332 exists.

4