Nordman et al v. Kansas City Southern Railway Co

Filing 12

MEMORANDUM RULING denying 9 Motion to Remand. Signed by Magistrate Judge Mark L Hornsby on 4/9/2009. (crt,McDonnell, D)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA S H R E V E P O R T DIVISION

J O H N NORDMAN, ET AL V ER SU S K A N S A S CITY SOUTHERN R A IL W A Y CO.

C IV IL ACTION NO. 08-cv-2025 J U D G E HICKS M A G I S T R A T E JUDGE HORNSBY

M E M O R A N D U M RULING I n t r o d u c tio n J o h n Nordman ("Plaintiff") filed this personal injury action in state court against K a n sa s City Southern Railway Company ("KCS"). KCS removed the case more than 30 d a ys after it was served with the original petition. Plaintiff has filed a Motion to Remand (D o c . 9) on the grounds that the removal was untimely. KCS responds that the allegations in the original petition were not sufficient to trigger the removal period. For the reasons that f o llo w , the motion to remand will be denied. R elev a n t Facts P lain tiff alleges in his state court petition that he was injured while on the job with his e m p lo ye r, Holland Company, as a driver of a hy-rail vehicle. Plaintiff was operating his v e h ic le on KCS tracks to check for defects, alignment, or other issues with the track. He was tra v e lin g with his supervisor, and his hy-rail vehicle was followed by another vehicle o p e ra te d by a KCS Roadmaster. Petition, ¶¶ 1-3.

P l a i n tif f alleges that he was instructed to stop and exit his vehicle to calibrate in s tru m e n ts . The vehicle was on a steep grade, so Plaintiff climbed down with his hands on g ra b irons on the vehicle. When his feet reached the large mainline ballast, the ballast slid a n d gave way. Plaintiff was left hanging from the grab irons, and he alleges that he suffered " se v e re and debilitating personal injuries." ¶¶ 4-5. P la in tif f 's only description of his alleged injuries (in his petition) are that he " d e v e lo p e d disabling traumatic injuries to, inter alia, his upper extremities, neck, and upper a n d lower back, requiring surgical intervention." ¶ 8. Plaintiff, in accordance with La. CCP a rt. 893, did not pray for a particular amount of damages. He did categorize his damages as in c l u d in g physical pain and suffering, mental anguish, loss of enjoyment of life, loss of past a n d future wages, diminished earning capacity, and medical expenses. ¶ 10. P la in tif f represents that KCS was served with his petition on August 8, 2008, and KCS d o es not dispute that date. Soon afterward, on August 26, 2008, a representative of Travelers In s u ra n c e wrote counsel for Plaintiff, stated that Travelers provided liability insurance for K C S , and requested basic information about Plaintiff and his claim, including his specific in ju rie s. Plaintiff's counsel responded by letter. He did not indicate an amount or value of th e claim, and he described the injuries by stating only that Plaintiff "suffered, inter alia, n e c k and shoulder injuries for which he has undergone surgery." See Doc. 9, Exhibits 1 and 2.

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A m e ric a n Casualty Company filed a Petition of Intervention in the state court on D e c em b e r 5, 2008. American Casualty alleged that it had paid more than $23,000 to Plaintiff in worker compensation benefits and had paid more than $73,000 in medical expenses. A m e r ic a n Casualty sought reimbursement from any proceeds of Plaintiff's tort claim against KCS. K C S filed its notice of removal on December 31, 2008, less than 30 days after the p e titio n for intervention was filed. KCS alleged in its notice that the intervention pleading w a s the first notice it received that the amount at issue permitted the case to be removed to f e d era l court. Plaintiff, within 30 days thereafter, filed a timely motion to remand on the g ro u n d s that the removal was untimely. Analysis A notice of removal "shall be filed within thirty days after the receipt by the d e f en d a n t, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ... ." 28 U.S.C. § 1446(b). T h is 30-day time period "starts to run from defendant's receipt of the initial pleading only w h e n that pleading affirmatively reveals on its face that the plaintiff is seeking damages in e x c es s of the minimum jurisdictional amount of the federal court." Chapman v. Powermatic, In c ., 969 F.2d 160, 163 (5th Cir. 1992). This rule was adopted to promote certainty and to d is c o u ra g e defendants from removing prematurely a case in which the initial pleading does

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n o t affirmatively reveal the requisite amount in controversy, lest the defendant risk waiving its right to remove the case. Id. Plaintiff's petition did not directly allege that he sought more than $75,000 in d a m a g e s, and the nonspecific description of his alleged injuries and treatment did not rise to th e level that the petition affirmatively revealed on its face that such an amount was at c o n tro v e r sy. Plaintiff did allege that he suffered "disabling" and "severe and debilitating p e rso n a l injuries," but this court has recognized that such strong adjectives are found in v irtu a lly every personal injury petition filed in state and city courts, even when only mild soft tis s u e injuries are at stake. See Lilly v. Big E Drilling Co., 2007 WL 2407254, *3 (W.D. La. 2 0 0 7 ) (adjectives such as severe, serious, or disabling - without supporting facts - do little t o establish the amount in controversy); Sutton v. Makita USA, Inc., 2007 WL 2008525 (W .D . La. 2007) (same). A term like disabling may suggest to some a serious case, but the c o u rt knows from experience that it is not a good indicator of the underlying injury or d a m a g e s . The term is used by some attorneys routinely in their petitions, no matter the kind o r extent of damages their client suffered. And a disability (in a case where there really is one a t issue) may be partial (20% loss of use of left thumb) or temporary. The bare term itself, w ith o u t particular facts to describe the alleged nature and duration of the disability, does not trig g e r the removal period. Finally, a list of categories of damages (lost wages, medical e x p e n se s, pain and suffering, etc.), without any facts to indicate the possible amounts at is s u e , is of little weight in determining the amount in controversy. See Sutton, supra. Almost

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e v e r y personal injury petition filed in this state will include a similar boilerplate list of d am ag e categories. Even when these characteristics (use of terms disability and severe in ju rie s; list of categories of damages) are found together in a petition, they do not make it f a cia lly apparent that more than $75,000 is in controversy. If that were the case, it would be th e extraordinarily rare Louisiana petition, no matter the underlying injuries, that would not trig g e r the removal period. P lain tiff did provide some actual facts about his alleged injuries. He alleged injury to h is upper extremities, neck, and upper and lower back, but he did not allege the form or n a tu re of such injuries. He merely described them as disabling and traumatic, which leaves m u c h to speculation. He also alleged that the injuries required "surgical intervention," but h e did not give any hint as to the nature or expense of that surgery. The court often faces the related issue of whether a removing defendant has satisfied its burden of showing by a preponderance of the evidence that more than $75,000 is at issue. In doing so, the court grants considerable weight to allegations that the plaintiff required su rg e ry, especially if the underlying injuries or the surgery itself are described with adequate d e ta il to discern the serious nature and expense of the surgery. For example, some plaintiffs a lle g e that they required surgery to fuse disks, repair broken bones, replace joints, or the like. B u t the court is also aware that many forms of "surgery" are performed in an office, under lo c a l anesthesia, at little expense, and with only a small amount of pain and inconvenience. It is impossible to determine from the face of this petition what kind of surgery is alleged to

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h a v e been performed, so the value of that surgery in connection with the amount in c o n tro v e rs y is quite speculative. P la in t if f ' s petition reveals, at best, a case that is arguably removable. But it is only w h e n the petition affirmatively reveals on its face that the case is removable that the 30-day p e rio d is triggered. A similar situation was presented in Duren v. Stonebarger, 2008 WL 5 4 4 6 8 2 (M.D. La. 2008) (petition alleged neck pain, back pain, left hand laceration, an u n s p e c if ie d surgery, numerous contusions, pelvic pain, headaches, chest pain, left arm pain, a n d wrongful death of unborn fetus). The court held that the removal period was not trig g e re d by the petition. This court has historically demanded that removing defendants promptly satisfy their b u rd e n of establishing by a preponderance of the evidence the requisite amount in c o n tro v e rs y. Otherwise, the case is swiftly remanded. The court has also long discouraged p re m a tu re or protective removals of cases in which the amount in controversy is in doubt b e c a u s e of vague pleadings about "serious" but unspecified injuries and the like. Those p ro te c tiv e removals waste a great deal of time for the parties and the court. To hold that the re m o v a l period was triggered in this case by the original petition would be contrary to that p o lic y, encourage wasteful protective removals, and be inconsistent with the rules and policy s e t forth in Chapman and related Fifth Circuit decisions. If the case stated by the initial petition is not removable, a notice of removal may be f ile d within 30 days after receipt by the defendant of a copy of an amended pleading or other

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p a p e r from which it may first be ascertained that the case is or has become removable. S e c tio n 1446(b). That paper does not trigger the removal period unless it makes it

" u n e q u iv o c a lly clear and certain" that more than $75,000 is in controversy. Bosky v. Kroger T e x a s, LP, 288 F.3d 208 (5th Cir. 2002). The letter from counsel to the insurance

re p re se n ta tiv e contained even less factual information about the injuries and damages than f o u n d in the petition, so it did not trigger the removal. KCS was, therefore, justified in not re m o v in g the case until the petition of intervention revealed that more than $73,000 in m e d ic a l expenses had been incurred related to the claimed injuries. That pleading was the f irs t paper to indicate the amount in controversy with adequate clarity to trigger the removal p e ri o d . For the reasons set forth above, Plaintiff's Motion to Remand (Doc. 9) is denied. T h e court need not address KCS's argument that the allegation of Plaintiff's mere residency ra th e r than his state of domicile or citizenship was not sufficient to reveal on the face of the p e titio n that the case was removable. The court will set a scheduling conference in due c o u rs e . T H U S DONE AND SIGNED in Shreveport, Louisiana, this 9th day of April, 2009.

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