Carey et al v. Allstate Insurance Co

Filing 25

MEMORANDUM ORDER denying 5 Motion to Remand and request for attorneys' fees. Signed by Magistrate Judge Kathleen Kay on 11/7/2013. (crt,Dauterive, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

EMILY CAREY AND
PERONIA JACKSON

:

CIVIL ACTION NO. 2:13-cv-2293

VERSUS

:

JUDGE MINALDI

ALLSTATE INURANCE
COMPANY

:

MAGISTRATE JUDGE KAY

MEMORANDUM ORDER

Before the court is the Motion to Remand filed by plaintiffs Emily Carey and Peronia
Jackson (“plaintiffs”). Doc. 5. Defendant Allstate Insurance Company (“Allstate”) removed this
action from Louisiana state court on July 7, 2013. Doc. 1. Plaintiffs argue that: (a) Allstate’s
removal is barred by the statutory one-year time limit; and (b) even if the removal is not
time-barred, Allstate has failed to show that the amount-in-controversy threshold has been met.
We conclude that Allstate’s failure to remove within one year was due to plaintiffs’
attempts to avoid federal jurisdiction and Allstate’s removal was, therefore, timely pursuant to
the exception to the one-year rule enunciated by the Fifth Circuit Court of Appeal in Tedford v.
Warner-Lambert Cp., 327 F.3d 423 (5th Cir. 2003). We also conclude that Allstate has shown
that the amount in controversy now exceeds $75,000 and, accordingly, plaintiffs’ Motion to
Remand is hereby DENIED.

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I.

FACTS & PROCEDURAL HISTORY

A. First Removal and Remand
The facts and holding of Allstate’s original removal proceeding can be found in
U.S.D.C., W.D. La., Lake Charles Div., 2:12-cv-02731, Doc. 21, and will not be fully repeated
here. Nevertheless, a brief summary is warranted.
In considering the first removal, this court found that Allstate failed to meet its burden of
proving that the amount-in-controversy requirement of 28 U.S.C. § 1332 was met.

Id.

Specifically this court concluded that plaintiffs’ only demand then present was for less than
$75,000 and that correspondence from plaintiffs’ counsel threatening to add additional claims
did not render the case removable. Id.; see also 28 U.S.C. § 1446(b)(3) (2013). Notably, the oneyear removal deadline expired while the first motion to remand was pending. Doc. 10, p. 4.
B. Post-Remand Proceedings
On March 6, 2013, one month after the first remand, plaintiffs moved the state court to
consolidate the case with their suit against alleged arsonists. Doc. 1, att. 9, pp. 14–20. That
motion was continued twice by the state court. Id. at 29, 57. That motion has not been refiled in
this court as required by the court’s removal order. Doc. 4, pp. 1-2.
On May 1, 2013, in an effort to have the suit dismissed, Allstate simultaneously filed:
(1) a Peremptory Exception of No Right of Action; and (2) a Motion for Summary Judgment.
Doc. 1, p. 2. The exception was based on the theory that only the mortgage company had the
right to recover the unpaid mortgage balance. 1 The Motion for Summary Judgment was
premised on the argument that Allstate had paid the mortgage and had not acted in bad faith. 2

1
2

Allstate recently filed an analogous motion in this court under Fed. R. Civ. P. 12(b)(1). Doc. 13.
Allstate filed their federal version of this motion pursuant to Fed. R. Civ. P. 12(b)(6). Doc. 14.
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On June 17, 2013, seeking to survive Allstate’s motions, plaintiffs filed a Supplemental
and Amending Petition (“Amended Petition”). The Amended Petition added claims for: (a) the
difference between the mortgage that was paid to NationStar and the value of the home; (b) the
value of the contents coverage in the home at the time of the loss; and (c) damages for debris
removal and for other structure value under the policy. Doc. 1, att. 4, p. 1. Furthermore,
plaintiffs claim that Allstate’s failure to timely adjust the claim was arbitrary and capricious
rendering Allstate liable for statutory penalties and attorneys’ fees. Id. The Amended Petition
continues to maintain that the combined value of Plaintiffs claims is less than $75,000. Id.
C. Current Posture
On July 17, 2013, well after the one-year deadline, Allstate removed the case a second
time based on the Amended Petition. Doc. 1. Allstate argues that the one-year deadline for
removal should be tolled because Plaintiffs engaged in bad-faith forum manipulation by waiting
more than a year to amend their petition in an apparent effort to defeat removal. Id. at 3–4.
Allstate also contends that plaintiffs’ claims for full damages under the policy, statutory
penalties, and attorneys’ fees clearly make the total value of Plaintiffs claims more than $75,000,
despite plaintiffs’ assertions to the contrary. Id. at 5–7. Finally, Allstate argues that, because
plaintiffs failed to affirmatively renounce the right to collect more than $75,000, their stipulation
as to the amount in controversy does not control. Id. at 7.
In their Motion to Remand plaintiffs contend that the only reason they waited for over
one year to amend their petition was because Allstate itself did not file its dispositive motions
until after one year. Doc. 5, att. 2, p. 11. Plaintiffs claim that their amendments were only filed
in an attempt to survive summary judgment or dismissal. As such plaintiffs claim that their

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actions do not present a pattern of fraudulent forum manipulation such that this court should
equitably toll the one-year deadline. Id. at 13.
Plaintiffs further contend that the court should not toll the deadline in Allstate’s favor
because Allstate has not been diligent in pursuing removal. Id. at 15. Plaintiffs alternatively
argue that by filing dispositive motions in state court, Allstate “tested state court waters” and
therefore waived its right to remove. Id. at 16.
Additionally plaintiffs contend that it is not facially apparent from the Amended
Complaint that their claims are above $75,000. Id. at 19. Plaintiffs state that their claim should
not be equated with the limits under the policy. Id. at 21–23.
Finally, Plaintiffs seek an award of attorneys’ fees related to the instant motion,
contending that Allstate has no objectively reasonable basis for removal and that Allstate is the
party guilty of forum shopping here. Id. at 23
III. LEGAL STANDARDS
Any civil action brought in a State court of which the district courts have original
jurisdiction may be removed to the proper district court. 28 U.S.C. § 1441(a) (2013). District
courts have original jurisdiction over all civil actions where the amount in controversy exceeds
$75,000, exclusive of interest and costs, and is between citizens of different states. 28 U.S.C. §
1332(a)(1) (2013). The diversity provisions of 28 U.S.C. § 1332(a)(1) require complete diversity
among the parties. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). The removing party bears
the burden of showing that removal was procedurally proper and that federal jurisdiction exists.
See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

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A. Timeliness of Removal
1. Generally
Generally, a defendant must file a notice of removal within 30 days from the time the
defendant receives an “initial pleading setting forth the claim for relief . . . .” 28 U.S.C.
§ 1446(b)(1). This 30-day period, however, “starts to run from defendant’s receipt of the initial
pleading only when that pleading affirmatively reveals on its face that the pleading is seeking
damages in excess of the jurisdictional amount of the federal court.” Chapman v. Powermatic,
Inc., 969 F.2d 160, 163 (5th Cir. 1992).
When the initial pleadings do not provide grounds for removal, defendants may remove
the action “within 30 days after receipt . . . of an amended pleading, motion, or other paper from
which it may first be ascertained that the case is one which is or has become removable.” 28
U.S.C. § 1446(b)(3) (2013). In all cases based on diversity jurisdiction, an action may not be
removed more than one year from its commencement unless the district court finds that the
plaintiff acted in bad faith in order to prevent removal. 28 U.S.C. § 1446(c)(1) (2013).
2. The Tedford Equitable-Tolling Exception
Because the instant action commenced before January 6, 2012, the statutory exception to
the one-year removal deadline does not apply as the current version of the statute was not in
effect when suit was filed. See Pub. L. No. 112-63 §105(d). However, the Fifth Circuit has long
recognized a jurisprudential “equitable-tolling exception” to the one-year deadline and the 2011
amendments to the federal jurisdiction statutes simply codified a similar exception. Jones v.
Shaner SPE Assoc., 2012 WL 1609884 at *1–*2 (W.D. La. 2012).
In Tedford v. Warner-Lambert Cp., the Fifth Circuit held that the time limit for removal
is not jurisdictional; it is merely modal and formal . . . .” 327 F.3d 423, 426 (5th Cir. 2003)

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(quoting Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir. 1983)). Therefore, because the
one-year time limit is not absolute, the court recognized an “equitable-tolling exception”
whereby the one-year time limit can be extended when the plaintiff attempts to circumvent
federal jurisdiction. Id. at 427. Furthermore, in determining whether to apply equitable tolling,
the Tedford court also considered important the defendant's vigilance in seeking removal. Id.
Since Tedford district courts have grappled with the question of the sufficient level of
proof of “bad faith” for equitable tolling to apply, particularly when the issue is over the
plaintiff’s failure to disclose the true amount in controversy. 3 The court must make a case-bycase determination, based upon the conduct of the parties, as to whether there was a “transparent
attempt to avoid federal jurisdiction.” Williams v. Mor-Tem Risk Mgmt. Servs. Inc., 2012 WL
1014752 at *5 (W.D. La. 2012) (internal citations omitted); see also Brower v. Staley, Inc., 306
F. App’x 36, 38 (5th Cir. 2008) (noting that the determination of whether to apply equitable
tolling is based upon the parties’ actions). In doing so, the court must balance the Tedford
exception against “the general rule that removal jurisdiction is to be strictly construed [in favor
of remand], as its application ‘deprives a state court of a case properly before it and thereby
implicates important federalism concerns.’” Foster v. Landon, 2004 WL 2496216 at *2 (E.D.
La. 2004).
B. Waiver of the Right to Remove
The Tedford court also noted that a removing defendant could waive its removal rights,
stating: “A waiver of the right to remove from state court must be clear and unequivocal; the

3

See E. FARISH PERCY, The Tedford Equitable Exception Permitting Removal of Diversity Cases After One Year: A
Welcome Development or the Opening of Pandora’s Box?, 63 BAYLOR L. REV. 146, 183–85 (2011) (explaining that
some courts require clear evidence of bad-faith forum manipulation, whereas other courts apply the exception more
liberally).
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right to removal is not lost by participating in state court short of seeking an adjudication on the
merits.” Tedford, 327 F.3d at 428.
C. Louisiana’s Rule on Pleading Damages and its Effect on Removal
Louisiana law forbids plaintiffs in state courts from pleading a specific numerical value
of damages. Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir.2000) (citing La. Code
Civ. Proc. Art. 893). Therefore, when a case originally filed in a Louisiana state court is
removed to federal court on the basis of diversity, the removing defendant must prove by a
preponderance of the evidence that the amount in controversy exceeds $75,000.00. Id. (citing
Lucket v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir.1999)). A defendant may meet this
burden by either: (1) showing that it is facially apparent that the amount in controversy exceeds
$75,000.00, or (2) setting forth facts in its removal petition that support a finding of the requisite
amount in controversy. Lucket, 171 F.3d at 298.
Even if a defendant meets this burden, remand is still proper if the plaintiff demonstrates
that it is legally certain that his recovery will not exceed the jurisdictional amount. De Aguilar v.
Boeing Co., 47 F.3d 1404, 1409 (5th Cir. 1995). Plaintiffs can meet this burden by filing a
pre-removal binding stipulation or affidavit affirmatively renouncing their right to accept a
judgment in excess of $75,000.00. Id. at 1412 (citing In re Shell Oil Co., 970 F.2d 355, 356 (7th
Cir.1992) (per curiam ).
Post-removal affidavits or stipulations do not deprive the district court of jurisdiction and
they are not to be considered in support of remand unless, at the time of removal, the amount in
controversy is ambiguous. Gebbia, 233 F.3d at 883. This rule against considering post-removal
affidavits is based on the fact that the amount in controversy is determined on the basis of the
record as it exists at the time of removal. Associacion Nacional de Pescadores v. Dow Quimica
de Colombia S.A., 988 F.2d 559, 565 (5th Cir.1993).
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In considering Louisiana’s rule on pleading the amount of damages, courts have
recognized “the potential for abusive manipulation by plaintiffs, who may plead for damages
below the jurisdictional amount in state court with the knowledge that the claim is actually worth
more, but also with the knowledge that they may be able to evade federal jurisdiction by virtue of
the pleading.” De Aguilar, 47 F.3d at 1410. Thus, a plaintiff’s stipulation that the damages
sought are less than $75,000 does not end the inquiry. Hampton v. Smart Prof’l Photocopy
Corp., 2003 WL 13323 at *2 (E.D. La. 2003).
IV. DISCUSSION
The following questions are before the court: (A) whether Allstate’s removal was timely
under the Tedford exception; (B) whether Allstate waived its right to remove by proceeding in
state court; and (C) whether Allstate has shown that the amount in controversy exceeds $75,000.
For the reasons that follow, the undersigned concludes that the Tedford exception applies
in this case, that Allstate did not waive its right to remove, and that Allstate has shown that the
amount in controversy is present.
A. Allstate’s Removal Was Timely under the Tedford Exception
There is no dispute that Allstate removed this case well after the one-year deadline.
Therefore Allstate may only survive the one-year deadline if the Tedford exception applies. The
undersigned, in reviewing plaintiffs’ actions in this matter, concludes that plaintiffs clearly
attempted to avoid federal jurisdiction, and thus application of the Tedford exception is
warranted.
1. Plaintiffs Delayed Amendment in Order to Defeat Removal
After Allstate paid NationStar the outstanding mortgage balance on April 30, 2012,
plaintiffs began to “explore” additional claims. Doc. 10, att. 9. Plaintiffs did not amend their

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petition to assert these claims. Plaintiffs did however continue after payment to issue deposition
notices, discovery requests, and correspondence, culminating in the September 18, 2013, letter
that prompted the first unsuccessful removal. 4 Doc. 10, att. 14. It was not until Allstate sought
to have the case dismissed that plaintiffs finally made formal demands in state court, nearly two
years after suit was filed and one year after plaintiffs first began, to bring up the possibility of
additional claims.
It is clear that plaintiffs delayed amending in order to defeat federal jurisdiction. Once
Allstate paid the mortgage it was plaintiffs’ decision whether to dismiss the state suit or pursue
additional claims through amendment. Had they amended within a year from filing suit Allstate
certainly would have removed and the removal would have been procedurally proper. Instead,
plaintiffs pursued additional claims without amendment, making it impossible for Allstate to
remove within the deadline.
We find further support of this conclusion by noting that plaintiffs delayed amendment
until they were forced to do so in order to survive summary judgment. Plaintiffs knew full well
that an amendment would likely find them in federal court again. We conclude that the failure to
amend was not an oversight on plaintiffs’ part. We find that plaintiffs wished to manipulate their
forum by keeping their claim under $75,000 for one year. Thus, the Tedford exception is
warranted, and the one-year deadline will be equitably tolled in this case.

4

The letter itself admits that Plaintiffs’ counsel “somewhat misled [Allstate] about where the case was going” and
that he “planned to amend the pleadings to reflect [claims for full damages under the policy] in the near future.”
Doc. 10, att. 14. Allstate, in an effort to remove within the one-year deadline, attempted to remove based on
Plaintiffs’ informal posturing, but because there had been no formal claims yet made, this court was forced to
remand the case. U.S.D.C., W.D. La., Lake Charles Div., 2:12-cv-02731, doc. 21, pp. 3–4.

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2. Allstate’s Refusal to Participate in Discovery was Warranted
Plaintiffs make much of Allstate’s refusal to respond to discovery and deposition
requests, claiming that “Allstate has steadfastly refused discovery on the whole issue of its policy
defense.” Doc. 11, p. 4. Apparently, plaintiffs’ argument is that, because Allstate did not agree
to depositions and did not respond to discovery, plaintiffs could not “[know] with certainty of
any additional cause of action.” Id. at 6. Plaintiffs further complain that, due to Allstate’s
conduct, they were forced to add a claim against the insurance agent who sold the policy
“without having the benefit of the agent’s testimony under oath related to same.” Id.
Plaintiffs sought this discovery after Allstate had paid that which was asked for in the
original complaint, i.e. the outstanding mortgage. No other claim was outstanding. In Louisiana
any deposition or discovery request has to be in regard to “any matter, not privileged, which is
relevant to the subject matter involved in the pending action . . . .” La. Code. Civ. Proc. art. 1422
(2013) (emphasis added). Insofar as the claim asserted had been satisfied there existed no other
issue to which the sought-after information might be relevant. 5 Allstate was under no obligation
to participate in discovery related to an unasserted claim.
It also bears noting that plaintiffs did finally amend their petition and were apparently
able to do so without the discovery they had so long demanded. Plaintiffs did not seek judicial
assistance with the state court to compel responses before amending. See generally doc. 1, att. 9
(showing that the state court record is devoid of any motions to compel). In short, it was entirely
plaintiffs’ decision whether or not to amend and when to do so. Any alleged action or inaction on the part
of Allstate is irrelevant.

5

Plaintiffs’ cite In re Vioxx Product Liability Litigation, 2005 WL 3542885 (E.D. La. 2005), for the proposition that
equitable tolling should not apply when a Plaintiff actively pursues depositions “in hopes of recovery, not in the
hopes of evading federal jurisdiction.” However, the instant case is distinguishable from In re Vioxx, because in that
case the plaintiffs were attempting to recover for a claim that had already been made. In the instant case, there was
no claim upon which the potential deponents could shed any light.
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3. Allstate Has Been Vigilant in Seeking Removal
The second aspect of applying the Tedford exception is that the defendant must vigilantly
seek removal. Tedford, 327 F.3d at 428.
In Tedford, the court noted that “[e]ach time it became apparent that the right to remove
existed, [defendant] sought to exercise that right.” Id. The same is true in the instant case.
Allstate has twice sought to remove shortly after removal became apparent. Accordingly, the
vigilance standard of Tedford is satisfied.
B. Allstate Did not Waive its Right to Remove
Plaintiffs contend that Allstate waived its right to remove by filing dispositive motions in
state court. Doc. 5, att. 2, pp. 16–17. In support of this argument plaintiffs cite Brown v. Demco,
Inc., 792 F.2d 478, 481 (5th Cir. 1986) for the proposition that “even a defendant who [removes]
timely may have waived its right to removal by proceeding to defend the action in state court or
otherwise invoking the processes of that court.”
Allstate responds that, under the circumstances, their filing of dispositive motions does
not evidence a “clear and unequivocal” intent to proceed in state court such that we should deem
that Allstate waived its right to remove. Doc. 10, p. 10; see also Tedford, 327 F.3d at 428. We
agree. A waiver may only occur when a case is initially removable yet a defendant proceeds in
state court instead. Stefanias v. Certain Underwriters at Lloyd’s London, 2007 WL 148408 at *3
(E.D. La. 2007). Here, the case was not removable until plaintiffs amended their petition after
Allstate filed its motions.

Once plaintiffs amended, Allstate promptly removed the case.

Allstate’s actions do not evidence a clear and unequivocal intent to seek state adjudication on the
merits. To the contrary, Allstate has twice removed this case as soon as federal jurisdiction was
arguably available.

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Furthermore, Brown does not stand for the proposition that any litigation in state court
constitutes a waiver and the facts of Brown are limited. Stefanias, 2007 WL 14808 at *3. In
Brown, the plaintiff sued multiple diverse defendants, but none of them sought removal to
federal court. Brown, 792 F.2d at 480. Five years after the original suit was filed plaintiff added
additional diverse defendants and the later-added defendants promptly sought removal. Id. The
district court denied the plaintiff’s motion to remand but the Fifth Circuit reversed. Id. The
higher court reasoned that the original diverse defendants’ failure to seek removal and lengthy
litigation in state court waived the right to remove. Id. Here, unlike the original defendants in
Brown, Allstate has sought removal whenever possible.
Accordingly, we conclude that Allstate did not waive its right to removal.
C. Allstate has Carried Its Burden of Showing the Requisite Amount in Controversy
Having decided that Allstate’s removal was procedurally proper, we must still determine
whether Allstate has shown that federal jurisdiction exists. See De Aguilar, 47 F.3d at 1408 As
the parties are indisputably diverse, it is incumbent on Allstate to show that the amount in
controversy is over $75,000. Allstate may meet this burden by showing by a preponderance of
the evidence: (1) that it is facially apparent from the Amended Petition that the amount in
controversy is likely to exceed $75,000; or (2) setting forth facts in its removal petition that
support such a finding. See Gebbia, 233 F.3d at 882.
It is the value of the claim actually made, not necessarily the value of the policy, which is
determinative. See Durio v. Horace Mann Ins. Co., 74 So.3d 1159, 1173 (La. 2011). The value
of the claim is determined at the time of removal. Caterpillar, Inc. v. Lewis, 519 U.S. 61, 73
(1996).

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The question therefore turns on the value of the claim as stated in the Amended Petition.
Plaintiffs claim that Allstate is liable for the following damages: (a) the difference between the
mortgage that was paid to NationStar and the value of the home; (b) the value of the contents
coverage in the home at the time of the loss; and (c) damages for debris removal and for otherstructure value under the policy. Doc. 1, att. 4, p. 1. Plaintiffs further seek statutory penalties
and attorneys’ fees on the grounds that Allstate’s failure to timely pay their claims was arbitrary
and capricious. Id. Finally, although plaintiffs have pled that their damages are still less than
$75,000, that stipulation is not binding or determinative. 6
We conclude that Allstate has met its burden of showing by a preponderance of the
evidence that Plaintiffs’ claim will likely exceed $75,000. Although Allstate may not merely
rely on the policy limits for arguing the amount in controversy, Doxey v. Scottsdale Ins. Co.,
2013 WL 1501021 (W.D. La. 04/11/13), plaintiffs are alleging a total loss of the home. In
essence, then, plaintiffs are stating that their damages are the same as or approach the policy
limits. See Bright Star Baptist Church v. State Farm Fire and Cas. Ins. Co., 2011 WL 2014864
at *2 (W.D. La. 2011).
Regarding the home itself, the policy provides dwelling limits of $103,000. The full
amount of that policy limit must be considered despite Allstate’s previous mortgage payment.
Plaintiffs’ amended petition does not reduce the mortgage-payment claim found in paragraphs 7
and 8 of the original petition. See doc. 1, att. 5, p. 1. The claims in the amended petition must be
considered as part of the original petition on the date of its filing. La. Code Civ. Proc. art. 1153.

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A stipulation as to the amount of damages is binding and may preclude removal only when plaintiff affirmatively
waives the right to recover over that amount. See, e.g., Bayou Mosquito & Pest Mgmt.., LLC v. Bellsouth
Telecommunications, LLC, 2013 WL 634253 (W.D. La. 02/19/13); Griffin v. Ga. Gulf Lake Charles, LLC, 562 F.
Supp. 2d 775 (W.D. La. 2008).
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Accordingly, the petition as amended states a claim for the full value of the policy including the
amount owed on the mortgage.
That Allstate apparently paid the mortgage balance after plaintiffs filed suit does not
affect the amount-in-controversy determination. The determination is based on the plaintiff’s
complaint at the time the notice of removal is filed. Pullman Co. v. Jenkins, 305 U.S. 534, 537
(1939). Here, when Allstate filed their notice, plaintiff’s complaint consisted of a claim for the
unpaid mortgage balance and the claims added by the amended petition. Plaintiff’s $103,000
claim for the value of the home is itself sufficient to meet the jurisdictional requirement.
Furthermore, even if we were to subtract the amount of the mortgage payment, the
requisite amount-in-controversy would still be present. Subtracting $56,003.96 from the dwelling
limit of $103,000, we would be left with an amount in controversy of $46,996.04. That base
amount would rise to an indeterminate level by adding plaintiffs’ other claims for out-of-pocket
mortgage expenses, contents coverage, debris-removal expenses, and other-structure value. The
claims for statutory penalties and attorneys’ fees could then double the amount of damages.
Therefore, it is clear that plaintiffs’ claims would still exceed $75,000.00 if the mortgage
payment were subtracted.
Accordingly, the amount-in-controversy requirement is met, and the exercise of diversity
subject matter jurisdiction is proper.
V. CONCLUSION
Considering the foregoing, it is ordered that plaintiffs’ Motion to Remand is hereby
DENIED.
Plaintiffs’ claim for attorneys’ fees and costs associated with the preparation of their
Motion is likewise DENIED.

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THUS DONE AND SIGNED in Chambers this 7th day of November, 2013.

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