Dunahoe et al v. Progressive County Mutual Insurance Co et al
Filing
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MEMORANDUM ORDER: Progressive will be allowed until February 24, 2014 to file an Amended Notice of Removal and attempt to satisfy its burden of demonstrating a basis for diversity jurisdiction. The court will review the case after the deadline and determine whether Progressive has met its burden or the case must be remanded. Compliance Deadline set for 2/24/2014. Signed by Magistrate Judge Mark L Hornsby on 2/4/14. (crt,Kennedy, T)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
ACEY B. DUNAHOE, ET AL
CIVIL ACTION NO. 14-cv-0085
VERSUS
JUDGE FOOTE
PROGRESSIVE COUNTY MUTUAL
INSURANCE CO., ET AL
MAGISTRATE JUDGE HORNSBY
MEMORANDUM ORDER
Progressive removed this case based on an assertion of diversity jurisdiction, so it
bears the burden of setting forth facts that show by a preponderance of the evidence that the
amount in controversy exceeds $75,000 with respect to at least one of the Plaintiffs. 28
U.S.C. § 1446(c)(2)(B). Progressive may make this showing by: (1) demonstrating that it
is “facially apparent” that the claims are likely above $75,000, or (2) setting forth the facts
in controversy – in the notice of removal or an affidavit – that support a finding of the
requisite amount. Luckett v. Delta Airlines, 171 F.3d 295, 298 (5th Cir. 1999); Simon v.
Wal-Mart Stores, Inc., 193 F.3d 848 (5th Cir. 1999).
The state court petition alleges that the Plaintiffs were in a Volkswagen Passat on an
off-ramp of a street in Nacogdoches when the rear of their car was hit by a Ford F250 pickup
truck that was towing a trailer. Both Plaintiffs allege they “were injured” and “required
medical treatment,” but they do not give any particular facts about the nature of their injuries
or related treatment. They do include generic allegations that they sustained serious, painful,
and permanent bodily injuries that required medical treatment. They also list categories of
damages such as past, present, and future medical expenses, pain and suffering, and
disability. This court has noted that adjectives such as serious and severe are found in
virtually every personal injury petition filed in state and city courts, even when only mild soft
tissue injuries are at stake. The same is true with respect to the standard list of categories of
damages sought.1 See Nordman v. Kansas City Southern, 2009 WL 976493 (W. D. La.
2009); Wright Family Investments, LLC v. Jordan Carriers, Inc., 2012 WL 2457664 (W. D.
La. 2012). A stubbed toe or soft tissue injury petition does not become a federal case just
because the plaintiff’s attorney includes a boilerplate list of damage categories in the petition.
On the other hand, Plaintiffs do allege that the value of their claims is sufficient for trial by
jury. Louisiana law generally does not allow a jury trial where “the amount of no individual
petitioner’s cause of action exceeds fifty thousand dollars exclusive of interest and costs.”
La. C. C.P. art. 1732.
Progressive cites the allegations in the petition and contends the amount in
controversy exceeds $75,000. It does not appear that Progressive has provided any factual
information to support that assertion, so the issue must be judged on the face of the petition.
As noted above, the court cannot tell from the petition the nature or severity of the injuries,
the extent and expense of any medical care, or other basic facts necessary to find by a
preponderance of the evidence that the amount in controversy exceeds $75,000 for any one
plaintiff.
1
Evidence of this can be seen by comparing the petition filed in this case with the
one in Mitchell et al v. National Casualty, 13 CV 3078. The petition in Mitchell includes
the same generic descriptions of severe injuries and a similar list of categories of
damages.
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Progressive will be allowed to file an amended notice of removal and attempt to set
forth sufficient facts to meet its burden of establishing that the requisite amount in
controversy existed at the time of removal with respect to at least one plaintiff. The claims
of the two plaintiffs may not be aggregated. But if one plaintiff’s claims exceed the
jurisdictional amount, the court may exercise supplemental jurisdiction over the claims by
the second plaintiff. The court will review the amended notice of removal and determine
whether to remand the case or maintain it in federal court.
Progressive will also need to make additional allegations with regard to the citizenship
of the parties if it is to meet its burden of establishing diversity jurisdiction. It describes the
individual plaintiffs and defendant Austin Tate as residents of Louisiana and Texas. A
person may be a resident of many states, but he is a domiciliary and citizen of only one at a
time. Therefore, it is domicile rather than mere residency that decides citizenship for
diversity purposes, and “[i]t is well established that an allegation of residency does not satisfy
the requirement of an allegation of citizenship.” Great Plains Trust Co. v. Morgan Stanley,
313 F.3d 305, 310 n. 2 (5th Cir. 2002), quoting Strain v. Harrelson Rubber Co., 742 F.2d
888 (5th Cir. 1984).
The two other defendants are Onyx Services, Inc. and State Farm Fire & Casualty
Company. Those defendants may not have been served yet, but their citizenship is
nonetheless critical to determining whether there is diversity of citizenship. New York Life
Ins. Co. v. Deshotel, 142 F.3d 873, 883 (5th Cir. 1998). A corporation is deemed to be a
citizen of (1) the state in which it was incorporated and (2) the state where it has its principal
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place of business. 28 U.S.C. § 1332(c)(1). To establish diversity jurisdiction, a complaint
or notice of removal must set forth “with specificity” a corporate party’s state of
incorporation and its principal place of business. “Where the plaintiff [or removing party]
fails to state the place of incorporation or the principal place of business of a corporate party,
the pleadings are inadequate to establish diversity.” Joiner v. Diamond M Drilling Co., 677
F.2d 1035, 1039 (5th Cir. 1982). The Fifth Circuit requires strict adherence to these
straightforward rules. Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).
Progressive describes Onyx as having its principal place of business in Texas, but it
does not allege Onyx’s state of incorporation. State Farm is described only as a foreign
insurer. These allegations are not sufficient to establish diversity of citizenship.
Progressive will be allowed until February 24, 2014 to file an Amended Notice of
Removal and attempt to satisfy its burden of demonstrating a basis for diversity jurisdiction.
The court will review the case after the deadline and determine whether Progressive has met
its burden or the case must be remanded.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 4th day of February,
2014.
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