Tate et al v. Great West Casualty Co et al

Filing 14

ORDER: IT IS ORDERED that by 10/31/2016, the Removing Defendants, are to file a "joint motion for leave" to file an amended Notice of Removal in order to address the lack of supporting evidence to determine the jurisdictional amount in this case. IT IS FURTHER ORDERED that by 11/7/2016, Plaintiffs may file a motion to remand, in the event they deem such filing appropriate. Signed by Magistrate Judge Carol B Whitehurst on 10/18/2016. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
Tate, et al

Civil Action No. 6:16-cv-00644

Versus

Judge Rebecca F. Doherty

Great West Casualty Company, et al

Magistrate Judge Carol B. Whitehurst

ORDER
This matter came before the undersigned Magistrate Judge on a sua sponte
jurisdictional review. This action was originally filed in the 27th Judicial District
Court for the Parish of St. Landry, Louisiana. Plaintiffs, Gary P. and Mary Lynn Tate
asserted personal injury claims arising out of a vehicular accident that occurred on
May 2, 2015. Plaintiffs named as defendants John Westley Jones, Roadrunner
Transportation Services Inc., Great West Casualty Company and Louisiana Farm
Bureau Mutual Insurance Company.
According to Plaintiffs’ allegations, at the time of the accident defendant
Roadrunner, was the owner of the Tractor and Semi Trailer (“tractor-trailer”) which
Jones was driving in the course and scope of his employment with Roadrunner. R. 11. Plaintiff further alleged Roadrunner was insured by Great Western, wherein Great
Western agreed to indemnify Roadrunner and its employees for any and all liability
and/or damages caused by and/or arising out of the operations of any motor vehicles

owned and operated by Roadrunner. As to Farm Bureau, Plaintiff alleged that Farm
Bureau provided coverage for uninsured/underinsured motorist (“UM”) coverage and
medical payments coverage. Plaintiff alleged “the insurance coverage available is
inadequate to fully compensate [him] for his injuries.” R. 1-1, ¶ 7.
Defendants, Jones, Roadrunner and Great West removed this action on May
11, 2016 (the “Removing Defendants”), alleging that the federal court has subjectmatter jurisdiction under 28 U.S.C. § 1332, which confers jurisdiction in civil actions
when the parties are diverse in citizenship and the amount in controversy exceeds
$75,000.00. As the parties invoking subject-matter jurisdiction in federal court, the
Removing Defendants have the burden of establishing the court’s jurisdiction. St.
Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253-54 (5th Cir. 1998).
After review of the pleadings to determine whether the requirements for
diversity jurisdiction were satisfied, the Court finds that the Removing Defendants
have not established that the amount in controversy exceeds the jurisdictional
threshold. In a case like this one in which the plaintiffs do not seek recovery of a
determinate amount in their complaint, the party invoking the Court’s jurisdiction has
the burden of proving, by a preponderance of the evidence, that the amount in
controversy exceeds $75,000. St. Paul Reinsurance, 134 F.3d at 1253. To satisfy that
burden, the Removing Defendants must either (1) demonstrate that it is facially
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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. Id.
The undersigned finds that the jurisdictional amount is not “facially apparent”
from the allegations of Plaintiffs’ petition because the facts alleged are insufficient
for the undersigned to determine whether the amount in controversy exceeds the
jurisdictional requirement. Specifically, there is no indication as to the nature or
extent of Gary Tate’s injuries, the amount of medical expenses incurred to date, the
type of treatment that he has undergone already, or the treatment he might require in
the future.
While the Removing Defendants state in the Notice of Removal that Plaintiffs
have “alleged in communications with counsel for defendants that he need to undergo
spinal surgery as a result of the accident and that his damages are approximately
$3,700,000.00," they have not provided any such communications nor any
documentation in the Notice of Removal to carry their burden of proving by a
preponderance of the evidence that the amount in controversy exceeds $75,000.00.
The Removing Defendants are to provide the Court with evidence to satisfy its
burden of proving that the amount in controversy exceeds $75,000. The Removing
Defendants will be allowed until October 31, 2016 to file a “joint motion for leave”

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to file an amended notice of removal in order to address the lack of supporting
evidence to determine the jurisdictional amount.
With regard to the citizenship of the parties, Plaintiffs fail to allege their
domicile, but the Removing Defendants represent that Plaintiffs are domiciled in
Louisiana. The Removing Defendants further state in the Notice of Removal that
Jones is domiciled in Mississippi, Roadrunner is a Delaware Corporation with its
principal place of business in Wisconsin, Great West is a Nebraska Corporation with
its principal place of business in Nebraska, and Farm Bureau is a foreign insurer with
its principal place of business in Louisiana. Therefore, diversity is not complete as to
Plaintiffs and Farm Bureau.
In their removal notice, the Removing Defendants stated that Farm Bureau,
Plaintiffs’ UM carrier, would destroy diversity but should be ignored pursuant to the
improper joinder doctrine, which is outlined in Smallwood v. Illinois Central RR Co.,
385 F.3d 568 (5th Cir. 2004). Plaintiffs have not filed a motion to remand nor
challenged the improper joinder plea, but the Court is obligated to determine subject
matter jurisdiction, including whether a party is improperly joined, on its own
initiative. Gasch v. Hartford Acc & Indem. Co., 491 F.3rd 278, 281 (5th Cir. 2007).
If Plaintiffs contest the assertion that Farm Bureau was improperly joined, they
must file a motion to remand, supported by a memorandum, by November 7, 2016
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and explain why there is a reasonable basis to predict that state law would allow
Plaintiffs to recover against Farm Bureau. If Plaintiffs timely file a motion to remand,
it will be noticed for briefing so that Defendants can respond and attempt to meet
their burden on the improper joinder issue.
If Plaintiffs do not timely file a motion to remand and challenge the improper
joinder plea, the court will consider Plaintiffs to concede the point, Farm Bureau will
be dismissed.
Accordingly,
IT IS ORDERED that by Monday, October 31, 2016, the Removing
Defendants, are to file a “joint motion for leave” to file an amended Notice of
Removal in order to address the lack of supporting evidence to determine the
jurisdictional amount in this case.
IT IS FURTHER ORDERED that by Monday, November 7, 2016, Plaintiffs
may file a motion to remand, in the event they deem such filing appropriate.
Signed at Lafayette, Louisiana, this 18th day of October 2016.