Davis v. LeBlanc et al

Filing 8

MEMORANDUM ORDER. Defendant will be allowed until 10/23/2017 to file an amended notice of removal and provide specific facts that it believes satisfy its burden with respect to the amount in controversy. The court will review the case after that date and determine whether this civil action may remain in federal court or must be remanded. Signed by Magistrate Judge Mark L Hornsby on 10/2/2017. (crt,Crick, S)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
URSULA DAVIS

CIVIL ACTION NO. 17-cv-1171

VERSUS

JUDGE JAMES

MORGAN LEBLANC, ET AL

MAGISTRATE JUDGE HORNSBY

MEMORANDUM ORDER
Ursula Davis (“Plaintiff”) filed this civil action in state court for personal injury
damages suffered in a car accident. Defendant MGA Insurance removed the case based on
an assertion of diversity jurisdiction. The court has an obligation to ensure the existence of
subject-matter jurisdiction even if a party has not objected. As explained below, additional
facts may be necessary for MGA to satisfy its burden with respect to the amount in
controversy.
A notice of removal may assert the amount in controversy if the plaintiff’s initial
pleading seeks a money judgment but state practice does not permit demand for a specific
sum. 28 U.S.C. § 1446(c)(2)(A)(ii). Removal of such an action is proper on the basis of an
amount in controversy asserted in the notice of removal “if the district court finds, by the
preponderance of the evidence, that the amount in controversy exceeds” $75,000 exclusive
of interest and costs. 28 U.S.C. §§ 1446(c)(2)(B) and 1332(a). The burden is on the
removing party to show that removal is proper, and any doubts should be resolved against
federal jurisdiction. Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3rd 535, 537 (5th Cir.
2014).

Plaintiffs’ petition, in accordance with Louisiana law, did not set forth a demand for
a specific amount of damages. Defendant asserted in its notice of removal that the amount
in controversy exceeds $75,000. Defendant may satisfy its burden on that issue 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).
Plaintiff’s petition alleges that she was driving a 2006 Pontiac G6 and stopped in
traffic on Mansfield Road when a 2012 Honda CP “struck the rear of the Petitioner’s
vehicle.” Petition, ¶ 5. Plaintiff alleged that the accident caused unspecified injuries “which
have required medical treatment.” ¶ 10. The petition contains no other information about
the nature or extent of those injuries or the type, duration, or expense of any related medical
treatment. The petition does not pray for an amount of damages, but it does list categories
of damages such as pain and suffering, loss of income, medical bills, and unspecified
disability.
The notice of removal acknowledges the burden Defendant bears with respect to the
amount in controversy, but the notice does not set forth any specific facts about the injuries
or claims at issue. Defendant does offer that “upon cursory review of plaintiff’s medical
records in the possession of [MGA] plaintiff allegedly sustained significant injuries that
could potentially be in excess of $75,000.” A bare assertion that medical records suggest
unspecified injuries that “could potentially” satisfy the amount in controversy may not be
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sufficient to meet a preponderance of the evidence standard. Removal “cannot be based
simply upon conclusory allegations.” Felton v. Greyhound Lines, Inc., 324 F.3d 771, 774
(5th Cir. 2003).
Defendant points to the categories of damages claimed by Plaintiff, but this court has
noted that virtually every personal injury petition filed in state and city courts allege similar
categories of damages. That does not make them all potential federal cases. Wilson v.
Hochheim Prairie Cas. Ins. Co., 2014 WL 508520 (W.D. La. 2014).
Defendant also points out that Plaintiff did not take advantage of the ability to plead,
pursuant to La. C.C.P. art. 893, that her amount of damages is less than the amount necessary
for federal jurisdiction. But this court has stated that the mere lack of an Article 893
allegation by a plaintiff is not enough to meet a removing defendant’s burden on the amount
in controversy. Lilly v. Big E Drilling Co., 2007 WL 2407254, *2 (W.D. La. 2007). Most
Louisiana federal courts have stated that a plaintiff’s failure to include an Article 893
allegation, alone, is insufficient to establish the amount in controversy, but the omission is
entitled to “some consideration” in the inquiry. See, e.g., Trahan v. Drury Hotels Co., LLC,
2011 WL 2470982, *4 (E.D. La. 2011); Ford v. State Farm, 2009 WL 790150, *4 (M.D. La.
2009); and Broussard v. Multi-Chem Group, LLC, 2012 WL 1492855, *2 (W.D. La. 2012).
Defendants also note that Plaintiff’s petition prays for the recovery of all general,
special, exemplary, and punitive damages that are available. Statutory penalties, punitive
damages, and other such awards can be included in the amount in controversy if there is a
basis for such an award. Wright Family Investments, LLC v. Jordan Carriers, Inc., 2012 WL
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2457664, *4 (W.D. La. 2012). Plaintiff’s petition does not cite any statutory or other
Louisiana authority for the availability of punitive damages or statutory penalties in this tort
case. Defendant offers no explanation for how such damages are potentially available and
therefore relevant in the assessment of the amount in controversy in this case.
Defendant will be allowed until October 23, 2017 to file an amended notice of
removal and provide specific facts that it believes satisfy its burden with respect to the
amount in controversy. The court will review the case after that date and determine whether
this civil action may remain in federal court or must be remanded.
THUS DONE AND SIGNED in Shreveport, Louisiana, this 2nd day of October,
2017.

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