Francis et al v. Progressive Casualty Insurance Co et al

Filing 15

ORDER: IT IS ORDERED that the defendants' 11 Motion to Withdraw 1 Notice of Removal is GRANTED; IT IS ORDERED that the plaintiffs' 5 Motion to Remand is GRANTED, and this matter will be remanded to the 16th Judicial District Court, Iberia Parish, Louisiana. IT IS FURTHER ORDERED that the 6 Motion to Dismiss and 10 Motion to Withdraw 6 MOTION to Dismiss Progressive County Mutual Insurance Company and Kenyetta Mixon are denied as moot. Signed by Magistrate Judge Patrick J Hanna on 4/21/2016. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
NICOLE FRANCIS

CIVIL ACTION NO. 6:16-CV-00457

VERSUS

JUDGE DOHERTY

PROGRESSIVE CASUALTY
INSURANCE COMPANY and
KENYETE J. MIXON

MAGISTRATE JUDGE HANNA

ORDER
Currently pending is the motion, filed on behalf of defendants Progressive
County Mutual Insurance Company (erroneously referred to in the plaintiffs’ petitions
as “Progressive Casualty Insurance Company”) and Kenyatta J. Mixon (erroneously
referred to in the plaintiffs’ petitions as “Kenyete J. Mixon”), which seeks to
withdraw the defendants’ notice of removal (Rec. Doc. 11). Also pending are the
plaintiffs’ motion to remand (Rec. Doc. 5), the defendants’ motion to dismiss (Rec.
Doc. 6), and the defendants’ motion to withdraw the motion to dismiss (Rec. Doc.
10).
In support of the motion to withdraw the notice of removal (Rec. Doc. 11), the
defendants state that they have no opposition to the plaintiffs’ pending motion to
remand (Rec. Doc. 5). This Court further finds that the remand motion is meritorious.
The defendants removed this lawsuit from the 16th Judicial District Court, Iberia
Parish, Louisiana, alleging that the court has subject-matter jurisdiction under 28

U.S.C. § 1332 because the parties are diverse in citizenship and the amount in
controversy exceeds $75,000.00. The party invoking subject-matter jurisdiction in
federal court has the burden of establishing the court’s jurisdiction.1 In this case, the
removing defendants must bear that burden.
When, as in this case, the plaintiff does not seek recovery of a determinate
amount in its complaint, the parties invoking the Court’s jurisdiction have the burden
of proving, by a preponderance of the evidence, that the amount in controversy
exceeds $75,000.2 To satisfy that burden, the 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.3 In
this case, the removing defendants have not established that the amount in
controversy exceeds the jurisdictional threshold.
There are two plaintiffs in this case. It is alleged that plaintiff Donald R.
Lopez, Jr. was driving a vehicle and that plaintiff Nicole Francis was his passenger
when they were involved in a motor vehicle accident with a vehicle being driven by
defendant Kenyatta J. Mixon. In support of their motion to remand, the plaintiffs

1

St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253-54 (5th Cir. 1998).

2

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

3

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

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submitted evidence showing that Mr. Lopez treated with a chiropractor for a few
months after the accident and incurred medical expenses of approximately $3,000.
The plaintiffs argued that the amount-in-controversy requirement as to him is not
satisfied. The plaintiffs did not address whether the amount in controversy is
satisfied with regard to Ms. Francis.
The United States Supreme Court has held that only one plaintiff's claims must
satisfy the amount in controversy requirement in order to confer original jurisdiction
over the claims of all plaintiffs in the case, stating that “where the other elements of
jurisdiction are present and at least one named plaintiff in the action satisfies the
amount-in-controversy requirement, [ 28 U.S.C.] § 1367 does authorize supplemental
jurisdiction over the claims of other plaintiffs . . . even if those claims are for less than
the jurisdictional amount. . . .”4 For this rule to apply, the plaintiffs’ claims must –
as in this case – arise out of the same Article III case or controversy. Several district
courts in the Fifth Circuit have adopted this rule.5 In this case, however, evidence has
been presented showing that Mr. Lopez’s claim does not exceed the statutory
4

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 549 (2005),

5

See, e.g., HBM Interests, LLC v. Chesapeake Louisiana, LP, No. 12-CV-1048, 2012
WL 3548145, at *1-2 (W.D. La. Aug. 16, 2012); Benjamin v. Multi-Chem Grp., L.L.C., No.
6:11-CV-01819, 2012 WL 3548060, at *2 (W.D. La. July 16, 2012), report and recommendation
adopted, No. 6:11-CV-01819, 2012 WL 3549835 (W.D. La. Aug. 16, 2012); Ackers v. Int'l Paper
Co., No. CIV.A. 11-0216, 2011 WL 2559844, at *2 (W.D. La. June 28, 2011); Stout v. Smithfield
BioEnergy, LLC, No. 3:10-CV-1185-M, 2010 WL 5487843, at *2 (N.D. Tex. Dec. 30, 2010).

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threshold but no evidence has been presented with regard to the value of Ms.
Francis’s claim. The plaintiffs’ petitions contain only vague allegations concerning
her purportedly “[s]erious, painful and permanent bodily injuries, great physical pain
and mental anguish, severe and substantial emotional distress, [and] loss of capacity
for the enjoyment of life.” (Rec. Doc. 6-1 at 10). There is no information concerning
the precise nature or extent of her injuries, the type of medical treatment she has
received thus far or is likely to require in the future, the cost of any such treatment,
the amount of time she has lost from work, if any, or the monetary value of any other
alleged damages. Therefore, it is not facially apparent that the amount in controversy
exceeds the jurisdictional threshold nor have the removing defendants satisfied their
burden of proving that the amount in controversy exceeds $75,000.
For these reasons, and on the record as it now exists, even if the defendants had
not moved to withdraw their removal notice, this Court would have found that the
removing defendants have not established that the amount-in-controversy requirement
is satisfied. Lacking evidence of a sufficient amount in controversy, this Court need
not consider whether the parties are diverse in citizenship.
Accordingly,
IT IS ORDERED that the defendants’ motion to withdraw their removal notice
(Rec. Doc. 11) is GRANTED;
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IT IS ORDERED that the plaintiffs’ motion to remand (Rec. Doc. 5) is
GRANTED, and this matter will be remanded to the 16th Judicial District Court,
Iberia Parish, Louisiana.
IT IS FURTHER ORDERED that the remaining motions (Rec. Docs. 6 and 10)
are denied as moot.6
IT IS FURTHER ORDERED that the oral argument on the motion to remand
(Rec. Doc. 5), which was previously scheduled for May 24, 2016 is CANCELED.
Signed at Lafayette, Louisiana, on April 21, 2016.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

6

Absent subject matter jurisdiction, a federal district court can take no action
whatsoever. “Without jurisdiction the court cannot proceed at all in any cause.” Marathon Oil Co.
v. Ruhrgas, 145 F.3d 211, 217 (5th Cir. 1998), quoting Ex parte McCardle, 7 Wall. 506, 514, 19
L.Ed. 264 (1868). See, also, e.g., Williams v. Liberty Mutual Ins. Co., No. 04–30768, 2005 WL
776170, at *3 (5th Cir. Apr. 7, 2005); Heaton v. Monogram Credit Card Bank of Georgia, 231 F.3d
994,1000 (5th Cir. 2000); Bacani v. Dep't of Veterans Affairs, 216 F.3d 1080, 1080 (5th Cir. 2000)
(holding that because the district court lacked subject matter jurisdiction, it did not err in denying
other pending motions as moot).

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