Kie et al v. Williams et al

Filing 11

MEMORANDUM RULING granting 8 MOTION to Remand filed by Alvin Kie, Pecola Kie. Signed by Magistrate Judge Karen L Hayes on 7/23/15. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
ALVIN KIE, ET AL.

CIVIL ACTION NO. 3:15CV1811

VERSUS

JUDGE ROBERT G. JAMES

TORY WILLIAMS, ET AL.

MAGISTRATE JUDGE HAYES
MEMORANDUM RULING

Before the undersigned Magistrate Judge, on reference from the District Court, is a
Motion to Remand, [doc. # 8], filed by Plaintiffs Alvin Kie and Pecola Kie.1 Defendant Werner
Enterprises, Inc. opposes the Motion.2 [doc. # 10]. For reasons stated below, the Motion is
GRANTED.
Background
On May 11, 2015, Plaintiffs, husband and wife, filed suit against Tory Williams, Tommie
Morgan, and Werner Enterprises, Inc. in the Fifth Judicial District Court, Parish of Richland.
[doc. # 1-7]. According to Plaintiffs, on June 4, 2014,Tory Williams, while driving a 2012
Freightliner tractor trailer owned by Defendant Werner Enterprises, Inc., negligently changed
lanes and collided with Plaintiff Alvin Kie’s vehicle. Id.
Plaintiffs claim that, as a result of the collision, Alvin Kie sustained unspecified injuries
to his back, neck, shoulders, head, hips, legs, arms, thighs, fingers, hands, ankles, and emotions.
1

As this is not a motion excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of any
claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this
Ruling is issued under the authority thereof, and in accordance with the standing order of this
Court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R.
74.1(W).
2

Defendant Werner Enterprises, Inc. maintains, in its Notice of Removal, that Plaintiffs
have yet to properly serve two individuals, Tory Williams and Tommie Morgan, that they named
as defendants in their Petition. [doc. # 1, p. 2].

Id. They further claim that, as a result of these injuries, Alvin experiences headaches,
forgetfulness, and dizziness, he is no longer able to enjoy life, he is inconvenienced and
embarrassed, he suffers from pain, mental anguish, and emotional distress, he incurred
unspecified medical expenses, property damage, and non-economic damages, he has lost
earnings, the capacity to earn, and vacation time, and he is disabled. Id. at 2-3. Both plaintiffs
bring claims for loss of consortium and damage to community property, and both seek all the
relief to which they are entitled. Id. at 3, 5.
On June 5, 2015, Defendant removed the matter on the basis of diversity jurisdiction.
[doc. # 1]. On June 18, 2015, Plaintiffs filed the instant Motion to Remand on the basis that the
amount in controversy does not exceed $75,000. [doc. # 8]. Defendant filed its opposition on
July 10, 2015. [doc. # 10]. The matter is now before the Court.
Law and Analysis
Federal courts are courts of limited jurisdiction. Howery v. Allstate Ins. Co., 243 F.3d
912, 916 (5th Cir. 2001). A suit is presumed to lie outside this limited jurisdiction unless and
until the party invoking federal jurisdiction establishes otherwise. Id. Federal law authorizes the
removal to federal court of “any civil action brought in a State court of which the district courts
of the United States have original jurisdiction . . . .” 28 U.S.C. § 1441(a).
In this case, Defendant invokes the Court’s jurisdiction via diversity, which requires
complete diversity of citizenship between the adverse parties and an amount in controversy
greater than $75,000. 28 U.S.C. § 1332(a). Plaintiffs do not contest that the parties are diverse;
rather, as mentioned, they dispute Defendant’s assertion that the amount in controversy exceeds
the jurisdictional minimum.
2

Pursuant to the Federal Courts Jurisdiction and Venue Clarification Act of 2011, the
removal statute now specifies:
If removal of a civil action is sought on the basis of the jurisdiction conferred by
section 1332(a), the sum demanded in good faith in the initial pleading shall be
deemed to be the amount in controversy, except that-(A) the notice of removal may assert the amount in controversy if the
initial pleading seeks–
(i) nonmonetary relief; or
(ii) a money judgment, but the State practice either does not
permit demand for a specific sum or permits recovery of
damages in excess of the amount demanded . . . .
28 U.S.C. § 1446(c)(2)(A). When, as permitted above, the amount in controversy is derived
from the notice of removal, the removing defendant must demonstrate by a preponderance of the
evidence that the amount in controversy exceeds the jurisdictional minimum. Id. § (c)(2)(B); De
Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995) (removing party bears the burden of
establishing federal jurisdiction).3 Removal cannot be supported by conclusory allegations,
Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 n.7 (5th Cir. 1999), and “[a]ny ambiguities are
construed against removal because the removal statute should be strictly construed in favor of
remand.” Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
To satisfy the preponderance standard, the removing defendant may either establish that
federal jurisdiction is “facially apparent” or demonstrate through “summary judgment-type”
evidence that the amount in controversy exceeds $75,000. St. Paul Reinsurance Co. v.
3

When resolving a motion to remand, it is axiomatic that courts look at jurisdictional
facts as they existed when the case was removed. Asociacion Nacional de Pescadores v. Dow
Quimica, 988 F.2d 559, 565 (5th Cir. 1993), abrogated on other grounds by Marathon Oil Co. v.
A.G. Ruhrgas, 145 F.3d 211 (5th Cir. 1998) (“ANPAC”).
3

Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). Courts may consider evidence submitted after
removal as long as the amount in controversy at the time of removal was ambiguous and the
evidence relates to the amount in controversy at the time of removal. Gebbia v. Wal-Mart Stores,
Inc., 233 F.3d 880, 883 (5th Cir. 2000); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th
Cir. 1995). If the defendant establishes by a preponderance of the evidence that the amount in
controversy is greater than the jurisdictional amount, remand is proper only if the plaintiffs then
“demonstrate to a legal certainty that they can not recover more than the jurisdictional amount.”
In re 1994 Exxon Chem. Fire, 558 F.3d 378, 388 (5th Cir. 2009).
Here, Defendant fails to demonstrate by a preponderance of the evidence that the amount
in controversy exceeded $75,000 at the time of removal. First, it is not facially apparent that
Plaintiffs’ claims exceed the jurisdictional minimum. Consistent with Louisiana law prohibiting
plaintiffs from pleading specific amounts of monetary damages,4 Plaintiffs’ Petition does not set
forth damages with any specificity. [doc. # 1-2]. Instead, Plaintiffs vaguely present a host of
imprecise injuries and categorical damage claims. Id. The Court is unable to determine, from
these indeterminate allegations, the nature, extent, or duration of Plaintiffs’ alleged injuries. The
allegations are, in other words, of little use to the Court in ascertaining the amount in
controversy.5 See, e.g., Simon, 193 F.3d at 850-51 (holding that the jurisdictional amount of
damages was not apparent on the face of a petition that alleged non-specific damages and

4

See LA. CODE CIV. PROC. art. 893.

5

Defendant attempts to analogize the instant case to other cases where courts awarded
damages in excess of $75,000.00. [doc. # 10, p. 5]. The Court, however, is unable to compare
the cited cases to the one at bar in light of Plaintiffs’ failure to particularize their injury
allegations.
4

unidentified medical expenses); Saxon v. Thomas, 2007 WL 1115239 at *2 (W.D. La. April 12,
2007) (holding that the jurisdictional prerequisite was not facially apparent because the “petition
ha[d] no description whatsoever of the claimed ‘injuries,’ ‘disability’ or medical expenses . . . .”).
Therefore, considering only the Petition, the amount in controversy at the time of removal
is ambiguous.6 Consequently, the Court is permitted to review summary judgment-type evidence
submitted after removal that relates to the amount in controversy at the time of removal. In this
regard, Defendant only presents defense counsel’s email to Plaintiffs’ counsel and Plaintiffs’
counsel’s response thereto. [doc. #s 10-3; 10-5]. This unsworn correspondence, however, does
not qualify as summary judgment-type evidence. See FED. R. CIV. P. 56(c)(4); Grimes v. Tex.
Dep’t of Mental Health and Mental Retardation, 102 F.3d 137, 139 (5th Cir. 1996) (“Needless to
say, unsubstantiated assertions are not competent summary judgment evidence.”); Nissho-Iwai
Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (“It is a settled rule in this circuit that an
unsworn affidavit is incompetent to raise a fact issue precluding summary judgment.”).7
Accordingly, Defendant fails to provide evidence sufficient to meet its burden. Of course, should
discovery later show that the amount in controversy in fact exceeds $75,000, defendants would
be able to remove the case to this court at that time.

6

The Court emphasizes that any ambiguities are construed against removal. Manguno,
276 F.3d at 723; Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000) (“[D]oubts
regarding whether removal jurisdiction is proper should be resolved against federal
jurisdiction.”).
7

Even if the proffered correspondence qualified as summary judgment-type evidence, it
does not establish by a preponderance of the evidence that the amount in controversy exceeds
$75,000.00. While Plaintiffs’ counsel did write that Plaintiff Alvin Kie was treated at the
emergency room, that he visited his primary care physician, that he underwent chiropractic
treatment, and that he received “one or two imaging studies,” counsel nevertheless concluded,
“Mr. Kie’s medical bills do not appear to be close to $20,000.00 thus far.” [doc. # 10-5, p. 1].
5

Conclusion
For the foregoing reasons, Plaintiffs’ Motion to Remand, [doc. # 8], is GRANTED. By
separate judgment, the case shall be REMANDED to the Fifth Judicial District Court for the
Parish of Richland, State of Louisiana.
In Chambers, Monroe, Louisiana, this 23rd day of July, 2015.

__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE

6