McFarland v. National Interstate Insurance Company et al

Filing 3

NOTICE and ORDER: Defendant National Interstate Insurance Company shall file a memorandum and supporting evidence concerning whether the amount in controversy requirement of 28 U.S.C. § 1332 is met, memorandum due by 6/16/2021. Plaintiff Heidi McFarland shall file either: (1) a Notice stating that Plaintiff does not dispute that NIIC has established the jurisdictional requirements of 28 U.S.C. § 1332, or (2) a Motion to Remand due by 6/30/2021. Signed by Magistrate Judge Erin Wilder-Doomes on 6/2/2021. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
HEIDI MCFARLAND

CIVIL ACTION NO.

VERSUS
NATIONAL INTERSTATE
INSURANCE COMPANY, ET AL.

21-314-JWD-EWD

NOTICE AND ORDER
This is a civil action involving claims for damages by Heidi McFarland (“Plaintiff”) based
upon the injuries she allegedly sustained on June 19, 2020 while travelling on Interstate 12 in
Baton Rouge, Louisiana (the “Accident”). Plaintiff’s vehicle was allegedly struck by the vehicle
driven by Defendant Antonio Reid 1 (“Reid”), who was operating his vehicle while in the course
and scope of his employment with Defendant West TN Expediting, Inc. (“West”), and was insured
by Defendant National Interstate Insurance Company (“NIIC’”) (collectively, “Defendants”). 2 On
April 27, 2021, Plaintiff filed her Petition for Damages (“Petition”) against Defendants in the
Nineteenth Judicial District Court for the Parish of East Baton Rouge. 3 Plaintiff claims that she
suffered personal injuries as a result of the Accident, caused by the negligence of Reid, for which
West is vicariously liable. 4 On May 28, 2021, NIIC removed the matter to this Court, based on
diversity jurisdiction under 28 U.S.C. § 1332. 5 However, as explained below, the Notice of
Removal is deficient in its allegations regarding the amount in controversy.
Proper information regarding the citizenship of all parties, and the amount in controversy,
is necessary to establish the Court’s diversity jurisdiction, as well as to make the determination
Per the Petition, Reid has several aliases, i.e., “Mart Antonio Tapp” and “Mart Antonio Reid.” R. Doc. 1-4, ¶ 1.
R. Doc. 1-4, ¶¶ 2-3, 8-9.
3
R. Doc. 1-4.
4
R. Doc. 1-4, ¶¶ 4-7.
5
R. Doc. 1, ¶¶ 5, 11. NIIC avers that Reid and West have not yet been served, but it is anticipated that they will be
represented by the same counsel and join in and consent to removal. R. Doc. 1, ¶¶ 2, 6.
1
2

required under 28 U.S.C. § 1441 regarding whether the case was properly removed to this Court.
The Notice of Removal properly alleges that Plaintiff is domiciled in Louisiana; Reid is domiciled
in Tennessee; NIIC is an Ohio corporation with its principal place of business in Ohio; and West
is a Tennessee corporation with its principal place of business in Tennessee; 6 therefore, complete
diversity of citizenship appears to exist.
It is not clear from the Petition or the Notice of Removal whether Plaintiff’s claims likely
exceed $75,000, exclusive of interest and costs. 7 The Petition only generally alleges that Plaintiff
suffered “personal injuries and property damage,” and seeks past, present, and future: physical and
mental pain, suffering, and anguish; physical disability and/or impairment of functions and
activities; loss of income and/or loss of earning capacity; loss of enjoyment of life; and property
damage. 8 Furthermore, Plaintiff alleges she will incur future expenses for: medical expenses,
drug/prescription medication, rehabilitation therapy, diagnostic procedures, travel, “and other
related and necessary expenses.” 9
In the Notice of Removal, NIIC relies on the above-referenced allegations of damages in
the Petition, 10 and also asserts the following:
9.
Further, based on “other papers,” namely Plaintiff’s medical records
and medical billing provided informally by Plaintiff counsel via email correspondence on May 3, 2021 to undersigned counsel (see
Exhibit “2” attached hereto), the amount in controversy appears to
exceed $75,000.00, exclusive of interest and costs. Notably, there
are additional medical records and medical billing that is referenced
in the medical records received to date, but Plaintiff counsel does
not yet have copies to provide to undersigned counsel. See medical
records and billing provided by Plaintiff counsel, collectively
R. Doc. 1, ¶ 4 (a) – (d).
See 28 U.S.C. §1332(a).
8
R. Doc. 1, ¶¶ 5-6.
9
R. Doc. 1, ¶ 7.
10
R. Doc. 1, ¶ 8.
6
7

2

attached hereto as Exhibit “3.” Plaintiff’s treatment records
provided to Petitioner to date indicate continued treatment starting a
few days after the accident at issue on June 19, 2020 through at least
April 2021, and are ongoing. See Exhibit 3. Based on positive
cervical MRI findings, Plaintiff’s treating physicians recommended
cervical epidural steroid injections along with other treatment. See
id. The medical billing based solely on the records received to date
from Plaintiff counsel informally is $4,501.00 and the estimated cost
for one epidural steroid injection is $6,230.00. See id. 11
NIIC also relies upon Plaintiff’s failure to include an La. C.C.P. art. 893 statement in her Petition
affirmatively renouncing the right to accept a judgment in excess of $75,000, exclusive of interest
and costs, which NIIC presumably asserts in response to the Petition’s allegation that “Plaintiff’s
damages do not currently exceed $75,000, exclusive of interest and costs.” 12
The foregoing is not sufficient to establish NIIC’s burden of establishing by a
preponderance of the evidence that Plaintiff’s claims will likely exceed $75,000, exclusive of
interest and costs. First, Plaintiff’s demands for general categories of damages in the Petition (and
echoed in the Notice of Removal) (e.g., past and future pain and suffering, mental anguish, lost
wages and medical expenses), 13 are insufficient to establish the amount in controversy. “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 the 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.” 14 NIIC acknowledges that is it not facially apparent from the Petition that
the amount in controversy is met. 15

R. Doc. 1, ¶ 9.
R. Doc. 1, ¶ 10 and see R Doc. 1-4, ¶ 10.
13
R. Doc. 1-4, ¶¶ 6-7.
14
Davis v. JK & T Wings, Inc., No. 11-501, 2012 WL 278728, at *3 (M.D. La. Jan. 6, 2012) and cases cited therein.
15
R. Doc. 1-6, p. 8.
11
12

3

While the Notice of Removal and attached medical records present additional facts with
respect to Plaintiff’s injuries and damages, they are insufficient to establish that the amount in
controversy is met. Specifically, the Notice of Removal and/or medical records reflect that
Plaintiff has been diagnosed with two bulging and two herniated discs. 16 Bulging discs, even
treated with steroid injections, have been held insufficient to establish the amount in controversy; 17
and “[t]his court recognizes that ‘[w]hether or not a herniated disc satisfies the amount in
controversy often turns on whether surgery is recommended.’” 18 There is no surgery
recommendation in the record.
Furthermore, despite NIIC’s contentions, the medical records submitted actually contradict
the position that her damages are likely to reach the jurisdictional minimum. Plaintiff reported
minimal pain of “1” and “3” on a scale of “10;” 19 has received only conservative treatment for
almost a year following the accident for which she “has had some improvement;” 20 has
experienced “significant relief” from prescribed mediation; 21 and while she is a candidate for an

R. Doc. 1-6, pp. 1-2.
See Shelton v. Hallmark Trucking Ins. Co., No. 17-1683, 2018 WL 1998341, at *4 (M.D. La. Mar. 27, 2018), report
and recommendation adopted sub nom., Shelton v. Hallmark Specialty Ins. Co., No. 17-01683, 2018 WL 1997543
(M.D. La. Apr. 27, 2018), citing Cole v. Mesilla Valley Transportation, No. 16-841, 2017 WL 1682561 (M.D. La.
March 14, 2017), holding: “a general review of quantum cases demonstrates that general damages awards for multiple
bulging discs often (if not more often than not) do not exceed $30,000-$45,000, even where the plaintiff is actually
treated with steroid injections.” 2017 WL 1682561, at *5 (citations omitted).
18
Thomas v. Louis Dreyfus Commodities, LLC, No. 15-394, 2016 WL 1317937, at *4 (M.D. La. Mar. 11, 2016),
report and recommendation adopted, No. 15-394, 2016 WL 1337655 (M.D. La. Apr. 1, 2016) (citing Robinson v.
Kmart Corp., No. 11–12, 2011 WL 2790192, at *4, n. 4 (M.D. La. Apr. 28, 2011), report and recommendation
adopted, 2011 WL 2937952 (M.D. La. July 14, 2011)). Accordingly, courts have found the lack of a recommendation
for surgery to be significant in determining whether a plaintiff seeking damages including those for a herniated disc
meets the amount in controversy requirement when balanced with other factors in the record. See, e.g., Hebert v.
Hanco Nat. Ins. Co., No. 07–362, 2009 WL 255948, at *4-5 (M.D. La. Feb. 3, 2009) (amount in controversy not
satisfied where plaintiff “suffers from a herniated disc, without any recommendation for surgery” and the plaintiff
“continues to work, continues to engage in activities of daily living, and does not seek damages for mental anguish”);
Espadron v. State Farm Mut. Auto. Ins. Co., No. 10–53, 2010 WL 3168417 (E.D. La. Aug. 9, 2010) (amount in
controversy not satisfied where plaintiff in car crash suffered a “herniated cervical disc [or] segmental cervical
instability” and a “herniated lumbar disc [or] segmental lumbosacral instability” and was a “potential surgical
candidate” and plaintiff stipulated that his damages did not exceed $50,000).
19
R. Doc. 1-6, p. 5.
20
R. Doc. 1-6, pp. 7-9.
21
R. Doc. 1-6, p. 5.
16
17

4

epidural steroid injection, she does not appear inclined to undergo the procedure, as the records
note: “she has again expressed apprehension about having an injection in her spine.” 22
Additionally, Plaintiff has only $4,501 in medical expenses for treatment over ten months
(although treatment is allegedly ongoing), 23 and at this point the only documented future medical
treatment cost is $6,230 for the ESI (if she receives it). This is simply insufficient to meet the
jurisdictional threshold. 24
NIIC has also not provided any details regarding whether Plaintiff’s injuries are permanent
or Plaintiff’s prognosis 25 and recommended future treatment, including whether Plaintiff has been
recommended for surgery. There is also no evidence of any settlement demands or discovery
responses that would have bearing on the amount in controversy, nor does the Petition demand a

R. Doc. 1-6, p. 7.
As reflected in the quoted allegation from R. Doc. 1, ¶ 9 above, NIIC references additional medical records and
billing that NIIC has not yet obtained because Plaintiff does not yet have them. As one court recently noted, “[i]f the
removing defendant does not have facts sufficient to support removal when the original petition is received, it is the
removing defendant’s responsibility to discovery those facts before effecting removal. That is precisely why the ‘other
paper’ removal rule exists, to ensure that removals will not be filed ‘before their factual basis can be proven [by the
removing defendant] by a preponderance of the evidence.’” Bonvillian v. National Liability & Fire Ins. Co., No. 161708, 2017 WL 892311, at *3 (W.D. La. Feb. 1, 2017) (quoting Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th
Cir. 2002)). The Fifth Circuit has repeatedly cautioned against protective removals and has established timing rules
that allow a defendant to engage in discovery regarding the amount in controversy before filing a notice of removal.
Chapman v. Powermatic, Inc., 969 F.2d 160, 162 (5th Cir. 1992); Mumfrey v. Powermatic, Inc., 719 F.3d 392, 400
(5th Cir. 2013); Bosky, 288 F.3d at 211. NIIC is advised that requests for jurisdictional discovery regarding the amount
in controversy are generally denied as a matter of course. See, e.g., Hopkins v. Crown Assocs., LLC, No. 18-595, 2018
WL 8496020, at *8 (M.D. La. Oct. 25, 2018), report and recommendation adopted sub nom., Hopkins v. Crown
Associated, LLC, No. 18-595, 2019 WL 1199470 (M.D. La. Mar. 14, 2019)(denying request for jurisdictional
discovery on the amount in controversy during the pendency of a motion to remand).
24
R. Doc. 1, ¶ 9 and see R. Doc. 1-6, pp. 3, 8-17.
25
The Petition’s boilerplate allegation of “physical disability” at R. Doc. 1-4, ¶ 6 is insufficient because even
allegations of permanent disability, which are not raised here, standing alone with no specification as to the affected
body part(s), do not establish that a plaintiff’s claims are likely to satisfy the amount in controversy requirement. See
Heaverlo v. Victoria’s Secret Stores, LLC, No. 07-7303, 2008 WL 425575, at *3 (E.D. La. Feb. 8, 2008) (“Although
Mrs. Heaverlo alleges permanent disability, that allegation is not sufficient for the Court to retain this case. In Palmer
v. Wal–Mart Stores, Inc., No. Civ. A. 95–1723, 1996 WL 20862, at *1 (E.D. La. Jan. 17, 1996), the court granted
plaintiff’s motion to remand even when plaintiff alleged that she sustained severe and possibly permanent injuries,
because her allegations were ‘fairly ‘vanilla’’ and did not reveal the extent of her injuries. Mrs. Heaverlo’s allegations
are similarly commonplace. Given the accident described in the petition and the lack of evidence as to plaintiffs’ likely
damages, the Court finds that defendants have not satisfied their burden of showing by a preponderance of the evidence
that more than $75,000 was in controversy at the time of removal.”).
22
23

5

jury trial. 26 Notably, Plaintiff expressly stated in her Petition that her damages “do not currently
exceed” the jurisdictional minimum.27
Similarly, the failure of a plaintiff to affirmatively renounce the right to accept a judgment
in excess of $75,000 is insufficient to establish that the requisite amount in controversy is met.28
NIIC has not yet met its burden of establishing that the amount in controversy is satisfied.
Although Plaintiff has not filed a Motion to Remand, 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. 29
Accordingly,
IT IS ORDERED that by no later than June 16, 2021 Defendant National Interstate
Insurance Company shall file a memorandum and supporting evidence concerning whether the
amount in controversy requirement of 28 U.S.C. § 1332 is met. 30

26
While a jury trial demand by Plaintiff would not be dispositive of the amount in controversy, it would be another
piece of information to consider. See, e.g., Batiste v. Stryker Corp., No. 19-574, 2020 WL 2245845, at *4 (M.D. La.
April 22, 2020), report and recommendation adopted, No. 19-574, 2020 WL 2296892 (M.D. La. May 7, 2020)
(“While this Court has repeatedly held that a demand for jury trial and a lack of Article 893 allegation are insufficient
alone to establish amount in controversy, they are factors to be considered.”)(citation omitted).
27
R. Doc. 1-4, ¶ 10.
28
See Rodney v. Waffle House, Inc., No. 18-481, 2018 WL 6829041, at *8 (M.D. La. Oct. 22, 2018), report and
recommendation adopted, No. 18-481, 2018 WL 10809995 (M.D. La. Dec. 18, 2018) (“As an initial matter, there is
no indication that Defendant ever requested that Plaintiff execute a stipulation regarding the amount in controversy
prior to removal. Even assuming, arguendo, that Plaintiff actually refused to stipulate that the amount in controversy
was less than $75,000 prior to removal, this Court has explained that a plaintiff is under no legal obligation to sign
such a stipulation, and that the failure to stipulate is but one factor that the court may consider when analyzing whether
the amount in controversy is present.”) (citations omitted). See also, Lowe v. State Farm Fire & Cas. Co., No. 077454, 2008 WL 906311, at * 2 (E.D. La. April 2, 2008) (“State Farm emphasizes both in the notice of removal and in
its opposition that Plaintiffs did not file a pre-removal binding stipulation regarding the amount in controversy.
However, Plaintiffs’ failure to do so does not relieve the removing party of its burden to establish that the jurisdictional
minimum is satisfied.”).
29
See McDonal v. Abbott Laboratories, 408 F.3d 177, 182, n. 5 (5th Cir. 2005) (“[A]ny federal court may raise subject
matter jurisdiction sua sponte.”).
30
28 U.S.C. § 1447(c) provides, in pertinent part: “If at any time before final judgment it appears that the district court
lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of
just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”

6

IT IS FURTHER ORDERED that by no later than June 30, 2021 Plaintiff Heidi
McFarland shall file either: (1) a Notice stating that Plaintiff does not dispute that NIIC has
established the jurisdictional requirements of 28 U.S.C. § 1332, or (2) a Motion to Remand.
The case will be allowed to proceed if jurisdiction is adequately established.
Signed in Baton Rouge, Louisiana, June 2, 2021.

S

ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

7