Opinion
NO. 02-1159, SECTION "A"(1)
October 7, 2002
ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 2) filed by plaintiffs, Linda Stewart and Grant Reynolds. Defendant, pathfinder Insurance Company ("Pathfinder"), opposes the motion. The motion, set for hearing on June 5, 2002, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED.
BACKGROUND
On February 27, 2001, Plaintiffs, Grant Reynolds and Linda Stewart, were riding Reynolds' motorcycle when they collided with an automobile operated by John George Schwartz. Defendant William Alvarez had rented the car from defendant Avis Rent-A-Car. Plaintiffs filed suit in the Civil District Court for the Parish of Orleans against Alvarez, Schwartz, State Farm Mutual Automobile Insurance Company, Safeco Property Casualty Insurance Companies, and Avis.
According to the state court petition, Stewart sustained "severe head trauma, laceration, concussion, immediate and subsequent seizures, and herniated lumbar disc." Rec. Doc. 1, Exh. A. Reynolds alleged "severe mouth trauma in which numerous teeth were knocked out, several deep leg lacerations [and] cervical and lumbar injuries." Both Plaintiffs allege damages for "pain and suffering, loss of society, loss of enjoyment of life and substantial special damages." Id. Reynolds also sought penalties and attorney's fees pursuant to La. R.S. 22:658 against State Farm for its arbitrary and capricious failure to pay his property damage claim.Id.
On December 10, 2001, Schwartz was the first defendant served. The remaining defendants were served within ten days. It is undisputed that none of the defendants filed a notice of removal within thirty days of service. On March 16, 2001, Plaintiffs filed a supplemental and amending petition adding Pathfinder as a defendant, and on March 12, 2002, pathfinder was served. The amended petition did not add any new damage claims. It is undisputed that pathfinder did not remove the case within 30 days of service.
After serving Pathfinder, Plaintiffs answered the interrogatories of one of the original defendants, State Farm Mutual Automobile Insurance Company. Within 30 days of receipt of Plaintiffs' answers to those interrogatories, Pathfinder filed its Notice of Removal pursuant to the "other paper" provision of 28 U.S.C. § 1446(b). Pathfinder claimed that it could not determine the jurisdictional amount of the Plaintiffs' claims until it received a copy of the interrogatory answers. Plaintiffs timely filed the instant motion to remand.
THE PARTIES' CONTENTIONS
Plaintiffs argue that pathfinder's notice of removal was untimely because the original petition was sufficient to alert Pathfinder that the amount in controversy exceeded $75,000.00 thereby making the case removable. Plaintiffs also argue that in multiple defendant cases, the decision to remove must be unanimous but because the original defendants did not timely seek removal they are forever precluded from consenting to subsequent attempts to remove. Thus, say Plaintiffs, there can be no unanimity of removal. Plaintiffs also seek costs and attorney's fees in conjunction with the allegedly improper removal.
Diversity of citizenship has never been in dispute.
In opposition, pathfinder argues that the original petition did not demonstrate that plaintiffs' claims exceeded $75,000. Rather, it was only after Plaintiffs answered the State Farm interrogatories that Pathfinder ascertained that the claims exceeded $75,000. pathfinder also argues that the other defendants have properly joined in the removal.
DISCUSSION
The procedural requirements for removal are outlined in 28 U.S.C. § 1446. Section 1446(b) provides in pertinent part:
The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable . . .28 U.S.C. § 1446(b) (emphasis added).
In Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992), the Fifth Circuit explained that the thirty day time period in which a defendant must remove a case starts to run from the defendant's receipt of the initial pleading only when that pleading " affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court." The Chapman court rejected the notion of having a district court inquire into a defendant's subjective knowledge of the value of a claim instead opting for more certainty in determining when an initial pleading triggers removal. Id. Some courts hold that Chapman requires a specific dollar allegation to begin the 30-day removal period, e.g., Bell v. Jack in the Box, Inc., 2000 WL 140769 (N.D. Tex. Feb. 7, 2000), but other courts doubt thatChapman was meant to be read so narrowly, e.g., Carleton v. CRC Industries, Inc., 49 F. Supp.2d 961 (S.D. Tex. 1999). Those latter courts hold that where the allegations in the initial pleading are sufficient to put the defendant on notice that the case is removable, the absence a more specific jurisdictional dollar allegation will not prevent the 30-day removal period from running. See, e.g., Evett v. Consolidated Freightways Corp., 110 F. Supp.2d 510 (E.D. Tex. 2000). Adding to the confusion, the Fifth Circuit has recently held that the allegations contained in the initial complaint need not be as certain or unequivocal as what would be required in a subsequent pleading in order to trigger the 30-day removal period. See Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002). In Louisiana state courts, the initial pleading cannot contain an allegation as to a specific damage quantum. See La. Code Civ. Pro. 893(A)(1).
The Court recognizes that article 893 does allow for a general allegation that the claim does or does not meet some jurisdictional amount. See La. Code Civ. Pro. art. 893(A)(1).
Turning now to Plaintiffs' state court petition, the Court notes that no damage quantum is alleged. However, Stewart claimed damages for "severe head trauma, laceration, concussion, immediate and subsequent seizures, and herniated lumbar disc." Reynolds claimed damages for "severe mouth trauma in which numerous teeth were knocked out, several deep leg lacerations, including cervical and lumbar injuries" as well as attorneys fees and penalties for statutory violations. Clearly the specificity and detail of the interrogatories foreclosed any doubt as to whether the case was removable but such a conclusion has no bearing on whether the initial pleading itself was sufficient to start the 30-day clock.
Examining Stewart's allegations, the Court notes that what the initial allegations lack in specificity they make up for in severity. Stewart alleged "severe head trauma, laceration, concussion, immediate and subsequent seizures, and herniated lumbar disc." Notice of Removal, Exh. A. While admittedly lacking in minute detail, Stewart nevertheless alleged significant and severe injuries of a serious nature. These personal injuries were specifically alleged and for each of those injuries various elements of damages were alleged. The Court therefore concludes that the original petition was sufficient to put Pathfinder on notice that Stewart's claim was removable because the petition "affirmatively reveals on its face" that the amount in controversy exceeds $75,000.00.
Reynolds' allegations require more of a stretch. Reynolds' most severe injury was the loss of several teeth. Id. His other significant injury was non-discript cervical and lumbar injury. Even with his claim for the damaged motorcycle and statutory penalties under the Louisiana Insurance Code the Court questions whether his claim even meets the jurisdictional minimum of this Court.
Even considering the detail contained in Reynolds' answers to interrogatories the jurisdictional minimum remains doubtful for his claim. For instance, Reynolds' special medical damages are well under $10,000.00, and he makes no lost wage claim. Nor do Reynolds' lumbar injuries appear to be nearly as severe as Stewart's. Opposition, Exh. B.
The sufficiency vel non of Reynolds' claim, however, is of no significance given that the amount in controversy for Stewart's claim clearly exceeds $75,000.00 and that her claim was removable based on the initial pleading. Because the Court has original jurisdiction (diversity) over Stewart's claim, 28 U.S.C. § 1367(b) gives the Court supplemental jurisdiction over Reynold's claim, thus making the entire matter removable. Therefore, the 30-day period for removal of both claims began to run when Pathfinder was served with the initial pleading which included Stewart's claims. Because Pathfinder waited more than 30 days to remove the case, Plaintiffs are entitled to remand.
When the district court has original jurisdiction over one plaintiff's claim, 28 U.S.C. § 1367 gives the district court supplemental jurisdiction over a co-plaintiff's claim even when the amount in controversy requirement is not met on the second plaintiff's claim. See 28 U.S.C. § 1367(a)-(b) (supplemental jurisdiction not precluded over claims by plaintiffs joined under Rule 20); Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928 (7th Cir. 1996);Fairchild v. State Farm Mut. Ins. Co., 907 F. Supp. 969 (M.D. La. 1995);Sunpoint Securities, Inc. v. Porta, 192 F.R.D. 716 (M.D. Fla. 2000); see also In re Abbott Labs., 51 F.3d 524 (5th Cir.), reh'g denied, 65 F.3d 33 (5th Cir. 1995).
Finally, Plaintiffs' request for attorney's fees and costs is denied. While the Plaintiffs' petition was sufficient to trigger the 30-day removal period, it was not so clear as to merit sanctions for Pathfinder's untimely removal.
Accordingly;
IT IS ORDERED that Plaintiffs' Motion to Remand (Rec. Doc. 2) should be and is hereby GRANTED. This matter is REMANDED to the Civil District Court for the Parish of Orleans pursuant to 28 U.S.C. § 1447(c).