Quatrevingt v. The Phoenix Insurance Company et al

Filing 2

NOTICE and ORDER: As to #1 Notice of Removal filed by Cable Man, Inc., Christopher S. Wilson. Defendants Christopher S. Wilson and Cable Man, Inc. shall file a motion to substitute their Notice of Removal with a proposed comprehensive amended Notice of Removal by 6/11/2021. Defendants shall file a memorandum and supporting evidence concerning whether the amount in controversy requirement of 28 U.S.C. 1332 is met by 6/18/2021. Plaintiff Timothy J. Quatrevingt shall file either: (1) a Notice stating that Plaintiff does not dispute that Defendants have established the jurisdictional requirements of 28 U.S.C. 1332, or (2) a Motion to Remand by 7/2/2021. Signed by Magistrate Judge Erin Wilder-Doomes on 06/04/2021. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
TIMOTHY J. QUATREVINGT
VERSUS
THE PHOENIX INSURANCE
COMPANY, ET AL.

CIVIL ACTION NO.
21-328-BAJ-EWD

NOTICE AND ORDER
This is a civil action involving claims for damages by Timothy J. Quatrevingt (“Plaintiff”)
based upon the injuries he allegedly sustained on May 20, 2020 in a motor vehicle accident that
occurred in Ascension Parish, Louisiana (the “Accident”). 1 Plaintiff alleges the Accident was
caused when the vehicle he was driving was hit by the vehicle driven by Defendant Christopher S.
Wilson (“Wilson”) while in the course and scope of his employment with Defendant Cable Man,
Inc. (“Cable Man”) (collectively, “Defendants”). 2 On May 4, 2021, Plaintiff filed his Petition for
Damages (“Petition”) in the Twenty-Third Judicial District Court for the Parish of Ascension
against Wilson, Cable Man, and The Phoenix Insurance Company (“Phoenix”), the alleged liability
insurer of the vehicle driven by Wilson and owned by Cable Man. 3 Plaintiff contends that he
suffered personal injuries and property damage as a result of the Accident, caused by the
negligence of Defendants. 4 On June 3, 2021, the matter was removed by Cable Man and Wilson
to this Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332. 5 However, as explained
below, the Notice of Removal is deficient in its allegations regarding the citizenship of the parties
and the amount in controversy.

R. Doc. 1-2, ¶ 3.
R. Doc. 1-2, ¶¶ 4-5, 8.
3
R. Doc. 1-2, ¶¶ 4, 6.
4
R. Doc. 1-2, ¶¶ 5, 7.
5
R. Doc. 1, ¶ 2.
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2

Proper information regarding about 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 required under 28 U.S.C. § 1441 regarding whether the case was properly removed
to this Court. The Notice of Removal sufficiently alleges that Plaintiff is a domiciliary of
Louisiana; Cable Man is a Mississippi corporation with its principal place of business in
Mississippi; and Wilson is a domiciliary of Mississippi; therefore, these parties appear diverse. 6
However, the citizenship of Phoenix is alleged to be “a Connecticut domiciled insurance company
and is 100% owned by The Travelers Indemnity Company (also a Connecticut domiciled insurance
company),” which is insufficient. 7 For purposes of diversity, “[a] corporation is a citizen of its
place of incorporation and its principal place of business.” 8 Therefore, Phoenix’s place of
incorporation and its principal place of business must be properly pled. If Phoenix both maintains
its principal place of business, and is incorporated, in Connecticut, the Notice of Removal should
expressly state that.
It is also not clear from the Petition or the Notice of Removal whether Plaintiff’s claims
likely exceed $75,000, exclusive of interest and costs. 9 The Petition alleges Plaintiff suffered
“resulting injuries and damages” and itemizes the latter as follows:
7.
Plaintiff, Timothy J. Quatrevingt, itemizes his damages as follows:
a)
b)
c)
d)
e)

Physical pain and suffering; past, present, and future;
Mental pain, anguish and suffering; past, present and future;
Medical expenses; past, present and future;
Loss of enjoyment of life; past present and future;
Permanent disability; past, present, and future;

R. Doc. 1, ¶¶ 2(a)-(c).
R. Doc. 1, ¶ 2(d).
8
28 U.S.C. § 1332(c). See also Getty Oil, Div. of Texaco v. Ins. Co. of North America, (In diversity cases involving
corporations, “allegations of citizenship must set forth the state of incorporation as well as the principal place of
business of each corporation.”).
9
See 28 U.S.C. §1332(a).
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f) Property damage; and
g) All other damages to which Plaintiff may be entitled under any
applicable law. 10
Defendants merely rely on these allegations in the Notice of Removal, and further assert that
discussions with “Defendant’s representatives/adjuster” allegedly indicate that “Plaintiff is
currently treating with a spine surgeon and in pain management. He has a prior lumbar fusion, has
recently undergone a CT myelogram and is seeking injections in his neck and hip.” 11
The foregoing does not provide enough information to determine if Plaintiff’s claims will
likely exceed $75,000, exclusive of interest and costs. First, Plaintiff’s general allegations in the
Petition of “injuries” and demands for general categories of damages (e.g., physical pain and
suffering, mental anguish, loss of enjoyment of life, and permanent disability, etc.) are insufficient
to establish the amount in controversy. 12 “[C]ourts 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.” 13
While Defendants allege that some representative of “Defendant” (presumably, Phoenix)
has indicated that Plaintiff is treating with a spine surgeon, is in pain management, has undergone

R. Doc. 1-2, ¶¶ 5, 7.
R. Doc. 1, ¶ 7.
12
Allegations of permanent disability, 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.”).
13
Davis v. JK & T Wings, Inc., No. 11-501, 2012 WL 278728, at *3 (M.D. La. Jan. 6, 2012) and cases cited therein.
10
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fusion and myelogram procedures, and is “seeking injections,” Defendants do not provide any
independent evidence corroborating these assertions or offer any details regarding Plaintiff’s
underlying injuries or the alleged treatment provided, including whether Plaintiff has actually had
injections; other information regarding treatment provided; whether Plaintiff’s injuries are in fact
permanent; the cost of Plaintiff’s treatment with the surgeon as well as the myelogram (and any
other medical expenses incurred); and Plaintiff’s prognosis and recommended future treatment,
including whether Plaintiff has been recommended for surgery related to this Accident. 14
Defendants have not offered any specific information regarding Plaintiff’s property damage. There
is also no evidence of medical records or billing, settlement demands, discovery responses or
relevant documents produced in discovery relevant to the amount in controversy.
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 parties are
completely diverse and whether the amount in controversy requirement has been met. 15
Accordingly,
IT IS ORDERED that, on or before June 11, 2021, Defendants Christopher S. Wilson
and Cable Man, Inc. shall file a motion to substitute their Notice of Removal with a proposed
comprehensive amended Notice of Removal (i.e., that includes all of their numbered allegations,
as revised, supplemented, and/or amended), which adequately alleges the citizenship of all parties
to establish that the Court has diversity jurisdiction over the case, and which will become the
operative Notice of Removal in this matter without reference to any other document in the record.

As written, it would appear that Plaintiff’s lumbar fusion preexisted the Accident.
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.”).

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IT IS FURTHER ORDERED that, on or before June 18, 2021, Defendants shall file a
memorandum and supporting evidence concerning whether the amount in controversy requirement
of 28 U.S.C. § 1332 is met.
IT IS FURTHER ORDERED that, on or before July 2, 2021, Plaintiff Timothy J.
Quatrevingt shall file either: (1) a Notice stating that Plaintiff does not dispute that Defendants
have 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 4, 2021.

S

ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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