Tomlinson v. Liberty Insurance Corp et al

Filing 14

ORDER OF REMAND: Having performed a sua sponte jurisdictional review, the undersigned has determined that this Court lacks subject-matter jurisdiction over this action for the reasons fully explained below. IT IS ORDERED that this matter shall be re manded to the 16th JDC, Iberia Parish. This Order shall be STAYED for fourteen days from the date of issuance. Any appeal to the District Judge must be filed within 14 days from the date of this Order. If an appeal is taken to the District Judge, the Order shall remain stayed until the appeal is decided. Signed by Magistrate Judge Patrick J Hanna on 8/7/2012. (crt,Putch, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
WILLIAM TOMLINSON AND
BOBBYE TOMLINSON

CIVIL ACTION NO. 6:11-cv-01949

VERSUS

JUDGE MELANÇON

LIBERTY INSURANCE
CORPORATION AND
McILHENNY COMPANY

MAGISTRATE JUDGE HANNA

ORDER OF REMAND
Having performed a sua sponte jurisdictional review,1 the undersigned has
determined that this Court lacks subject-matter jurisdiction over this action for the
reasons fully explained below. Accordingly, this action will be remanded to the state
court from which it originated.

ANALYSIS
This lawsuit was originally filed in the 16th Judicial District Court, Iberia
Parish, Louisiana. The defendants, Liberty Insurance Corporation and McIlhenny
Company, then removed the action to this forum, alleging that this Court has subject1

Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1297 (5th Cir. 1985) (“United States
District Courts and Courts of Appeals have the responsibility to consider the question of subject
matter jurisdiction sua sponte if it is not raised by the parties and to dismiss any action if such
jurisdiction is lacking.)

matter jurisdiction because the parties are diverse in citizenship and the amount in
controversy exceeds the statutory jurisdictional threshold of $75,000. (Rec. Doc. 1).
Federal district courts are courts of limited jurisdiction, possessing only the
power authorized by the Constitution and by statute.2 Accordingly, federal courts
have subject-matter jurisdiction only over civil actions presenting a federal question3
and those in which the amount in controversy exceeds $75,000 exclusive of interest
and costs and the parties are citizens of different states.4 The party invoking subjectmatter jurisdiction in federal court has the burden of establishing the court’s
jurisdiction.5 Therefore, when an action is removed from state court, the removing
party bears the burden of proving that federal jurisdiction exists.6 In this case, the
defendants must bear that burden.
The defendants contend that the parties are diverse in citizenship. In their
petition, the plaintiffs stated that they are citizens of the State of Tennessee. (Rec.
Doc. 1-1 at 1). In the removal notice, the defendants stated that defendant Liberty is
2

Griffin v. Lee, 621 F.3d 380, 388 (5th Cir. 2010); Halmekangas v. State Farm Fire and
Cas. Co., 603 F.3d 290, 292 (5th Cir. 2010).
3

28 U.S.C. § 1331.

4

28 U.S.C. § 1332.

5

St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998).

6

Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002);
De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

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a Massachusetts corporation with its principal place of business in Massachusetts
(Rec. Doc. 1 at 2) and that defendant McIlhenny is a Maine corporation with its
principal place of business in Maine. Therefore, under 28 U.S.C. § 1332(c)(1),
Liberty is a citizen of Massachusetts and McIlhenny is a citizen of Maine. Based on
these representations, the undersigned found that the parties are diverse in citizenship.
(Rec. Doc. 9 at 2).
The undersigned was unable, however, to determine from the allegations set
forth in the plaintiffs’ petition whether the jurisdictional threshold was satisfied with
regard to the amount in controversy. (Rec. Doc. 9 at 2).
The amount in controversy is the sum claimed by the plaintiff in his complaint
if the claim was apparently made in good faith.7 To justify remand, “it must appear
to a legal certainty that the claim is really for less than the jurisdictional amount.”8
When the complaint does not state a specific amount of damages, the defendant must
establish by a preponderance of the evidence that the amount in controversy exceeds
the jurisdictional threshold.9 This burden can be satisfied either by demonstrating

7

St. Paul Reinsurance v. Greenberg, 134 F.3d at 1253; De Aguilar v. Boeing Co., 47
F.3d at 1408; Nat’l Union Fire Ins. Co. of Pittsburgh v. Russell, 972 F.2d 628, 630 (5th Cir. 1992).
8

St. Paul Reinsurance v. Greenberg, 134 F.3d at 1253, quoting St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).
9

Simon v. Wal–Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); Allen v. R & H Oil &
Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

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that the amount in controversy is facially apparent from the plaintiff’s pleadings or
by setting forth the facts in controversy, with summary-judgment-type evidence, that
support a finding of the requisite amount.10 “The preponderance burden forces the
defendant to do more than point to a state law that might allow the plaintiff to recover
more than what is pled. The defendant must produce evidence that establishes that
the actual amount in controversy exceeds [the jurisdictional amount].”11 Thus, the
district court must first examine the complaint to determine whether it is facially
apparent that the plaintiff’s claims exceed the jurisdictional threshold; if it is not
facially apparent, the court may then rely on summary-judgment-type evidence to
ascertain the amount in controversy.12 Any doubts as to the propriety of removal
should be construed strictly in favor of remand.13

10

Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999); Allen v. R & H Oil
& Gas Co., 63 F.3d at 1335.
11

De Aguilar v. Boeing, 47 F.3d at 1412 (emphasis in original).

12

Luckett v. Delta Airlines, 171 F.3d at 298; Allen v. R & H Oil & Gas Co., 63 F.3d at

13

Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

1335.

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In Louisiana, plaintiffs are not permitted to plead a specific dollar amount of
damages.14 Therefore, the original petition filed in this lawsuit does not request
recovery of a specific amount. In such a case, the removing defendants must either
(1) demonstrate that it is facially apparent that the claims are likely above $75,000 or
(2) set forth the specific facts in controversy that support a finding of the
jurisdictional amount.15
Although the plaintiffs alleged in their petition that the amount in controversy
exceeds $50,000 (the amount necessary for them to request trial by jury in the original
state-court proceeding), neither the petition nor the removal notice explained the
nature or extent of Mr. Tomlinson’s injuries, the type of medical care he received, the
amount of medical costs Mr. Tomlinson incurred before filing suit, or the amount of
medical costs he is likely to incur in the future. The undersigned therefore concluded
that the jurisdictional amount was not “facially apparent” from the complaint because
the facts alleged were insufficient for the undersigned to determine whether the
amount in controversy exceeds the jurisdictional requirement. (Rec. Doc. 9 at 3).

14

Louisiana Code of Civil Procedure Article 893(A)(1). See, also, In re 1994 Exxon
Chemical Fire, 558 F.3d 378, 388 (5th Cir. 2009).
15

St. Paul Reinsurance, 134 F.3d at 1253.

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The undersigned ordered the defendants to submit a memorandum setting forth
specific facts that support a finding that the amount in controversy exceeds the
jurisdictional minimum and to support those facts with summary-judgment-type
evidence. (Rec. Doc. 9 at 3). The defendants complied with that order. (Rec. Doc.
10). The plaintiffs were allowed an opportunity to respond to the defendants’
submission, but they did not do so within the time allotted. The undersigned now
finds that the defendants have not satisfied their burden of proof with regard to the
amount in controversy.
The defendants’ memorandum (Rec. Doc. 9) establishes that Mr. Tomlinson
sustained a broken nose in the incident sued upon, and that he has incurred related
medical expenses of approximately $9,000. The defendants argued that when those
special damages are added to the value of Mr. Tomlinson’s claim for general damages
and to the value of Mrs. Tomlinson’s claim for loss of consortium, the amount in
controversy exceeds the jurisdictional minimum.
The undersigned disagrees and finds that the defendants have not sustained
their burden of proving by a preponderance of the evidence that the amount in
controversy in this lawsuit exceeds $75,000.
First, the value of Mrs. Tomlinson’s loss of consortium claim is irrelevant.
Plaintiffs ordinarily may not aggregate their damage claims in order to satisfy the
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requisite jurisdictional minimum. Instead, “[t]he general rule is that each plaintiff
who invokes diversity of citizenship jurisdiction must allege damages that meet the
dollar requirement of § 1332.”16 Therefore, Mrs. Tomlinson's loss of consortium
claim cannot be combined with Mr. Tomlinson’s claim in an effort to establish the
amount in controversy.
Second, the cases the defendants cited as supporting particular awards for
general damages are factually different from this one, presenting much more serious
damages than those documented in the defendants’ submission. The undersigned
finds that the defendants have merely speculated regarding the damages they might
recover Mr. Tomlinson’s general damages, without proving the amount of a likely
recovery.
Consequently, the undersigned also finds that this Court lacks jurisdiction over
this action. Accordingly,
IT IS ORDERED that this matter shall be remanded to the 16th Judicial
District Court for the Parish of Iberia, State of Louisiana, because this Court lacks
subject-matter jurisdiction.
This Order shall be STAYED for fourteen days from the date of issuance. Any
appeal to the District Judge must be filed within fourteen days from the date of this
16

Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1330 (5th Cir. 1995).

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Order. If an appeal is taken to the District Judge, the Order shall remain stayed until
the appeal is decided. If no timely appeal is filed, the clerk shall remand the action
forthwith.
Signed at Lafayette, Louisiana, on this 7th day of August 2012.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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