Opinion
Civil Action 22-106-JWD-EWD
04-18-2022
BRANDON IRVIN v. AAA MEMBER SELECT INSURANCE COMPANY, ET AL.
NOTICE AND ORDER
ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE
This is a civil action involving claims for damages by Brandon Irvin (“Plaintiff”) based on the injuries he allegedly sustained on March 26, 2021 while travelling in Baton Rouge, Louisiana (the “Accident”). Plaintiff's vehicle was allegedly struck by the vehicle driven by Defendant Teri Scharpen (“Scharpen”), and insured by Defendant AAA MemberSelect Insurance Company (“AAA”). On January 7, 2022, Plaintiff filed his Petition for Damages (“Petition”) against Defendants in the Nineteenth Judicial District Court for the Parish of East Baton Rouge. On February 11, 2022, AAA removed the matter to this Court, based on diversity jurisdiction under 28 U.S.C. § 1332. However, as explained below, the Notice of Removal is deficient in its allegations regarding citizenship and the amount in controversy.
R. Doc. 1-1, ¶¶ 1-3, 8 and prayer for damages.
R. Doc. 1-1. Plaintiff designated AAA's name as “AAA Member Select Insurance Company, ” however, the Notice of Removal designates AAA's name as “AAA MemberSelect Insurance Company.” The Court adopts the latter.
R. Doc. 1, ¶¶ II, VI (sic, VII). Scharpen consented to removal. R. Doc. 1-6 and R. Doc. 1, ¶ IX (sic, ¶ X).
Proper information regarding the citizenship of all parties, and the amount in controversy, is necessary to establish the Court's diversity jurisdiction, as well as to make the determination required under 28 U.S.C. § 1441 regarding whether the case was properly removed to this Court. The Notice of Removal properly alleges that AAA is a Michigan corporation with its principal place of business in Michigan. With respect to Plaintiff, the Notice of Removal alleges that Plaintiff pleaded that he is a “citizen” of Louisiana in his Petition. That is incorrect. The Petition only alleges Plaintiff's Louisiana residency. Similarly, the Notice of Removal incorrectly alleges that, since the Petition pleaded that Scharpen resides in Minnesota, “consequently.. ..Sclnirpen is a citizen of the State of Minnesota.” “For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient.” Furthermore, “[f]or adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there.” Thus, to properly allege the citizenship of an individual, a party must identify the individual's domicile. Accordingly, AAA must identify the domicile of Plaintiff and Scharpen.
R. Doc. 1, ¶ II(1) and R. Doc. 1-1, introductory paragraph.
R. Doc. 1, ¶ II(3) and R. Doc. 1-1, ¶ 1(2).
Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (citations omitted).
White v. I.N.S., 75 F.3d 213, 215 (5th Cir. 1996), citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).
It is also not clear from the Petition or the Notice of Removal whether Plaintiff's claims likely exceed $75,000, exclusive of interest and costs. The Petition only generally alleges that Plaintiff “has sustained personal injuries and property damage, ” for which he seeks past, present, and future damages for: physical and mental pain, suffering, and anguish; physical disability and/or impairment of functions and activities; loss of income and/or loss of earning capacity; loss of enjoyment of life; and property damage, as well as damages for medical expenses, drug/prescription medication, rehabilitation therapy, diagnostic procedures, travel and other related and necessary expenses.
See 28 U.S.C. §1332(a).
R. Doc. 1-1, ¶¶ 5-7.
In the Notice of Removal, AAA relies on the above-referenced allegations of damages in the Petition, and also assert the following:
R. Doc. 1, ¶ I.
III.
Additionally, removal is proper because the amount in controversy exceeds $75,000, exclusive of interest and costs, as required for the existence of federal diversity jurisdiction by 28 U.S.C. § 1332(a).
Specifically, Plaintiff made a settlement demand exceeding $75,000 shortly prior to filing the instant lawsuit. More specifically, Plaintiff's demand detailed medical expenses exceeding $18,000.00, with ongoing treatment for bulging lumbar discs, including bilateral facet injections. The demand asserted an award of general damages could range from $50,000 to amounts exceeding $75,000 for the injuries allegedly sustained as a result of the motor vehicle accident at issue, all of which is in addition to the claimed property damage and wage loss.AAA also relies on Plaintiff's refusal to execute a proffered stipulation that his damages will not exceed $75,000, and the lack of an La. C.C.P. art. 893 statement in his Petition, affirmatively renouncing the right to accept a judgment in excess of $75,000, exclusive of interest and costs.
R. Doc. 1, ¶ III, citing R. Doc. 1-2.
R. Doc. 1, ¶¶ IV-V, citing R. Doc. 1-3 (Cover letter enclosing stipulation, which is not in the record).
The information provided is not sufficient to establish AAA's burden of establishing by a preponderance of the evidence that Plaintiff's claims will likely exceed $75,000, exclusive of interest and costs. First, Plaintiff's nonspecific allegations of “personal injuries, ” and demands for general categories of damages in the Petition (echoed in the Notice of Removal) (e.g., past and future pain and suffering, mental anguish, lost wages and medical expenses), are insufficient to establish the amount in controversy. “Courts have routinely held that pleading general categories of damages, such as ‘pain and suffering, disability, lost wages, loss of earning capacity, medical expenses, etc.,' without any indication of the amount of the damages sought, does not provide sufficient information for the removing defendant to meet his burden of proving that the amount in controversy is satisfied under the ‘facially apparent' test.”
R. Doc. 1-1, ¶¶ 3, 5-7.
The Petition's boilerplate allegation of “physical disability” at R. Doc. 1-1, ¶ 6(b) is insufficient because even allegations of permanent disability, which are not raised here, standing alone with no specification as to the affected body part(s), do not establish that a plaintiff's claims are likely to satisfy the amount in controversy requirement. See Heaverlo v. Victoria's Secret Stores, LLC, No. 07-7303, 2008 WL 425575, at *3 (E.D. La. Feb. 8, 2008) (“Although Mrs. Heaverlo alleges permanent disability, that allegation is not sufficient for the Court to retain this case. In Palmer v. Wal-Mart Stores, Inc., No. Civ. A. 95-1723, 1996 WL 20862, at *1 (E.D. La. Jan. 17, 1996), the court granted plaintiff's motion to remand even when plaintiff alleged that she sustained severe and possibly permanent injuries, because her allegations were ‘fairly ‘vanilla'' and did not reveal the extent of her injuries. Mrs. Heaverlo's allegations are similarly commonplace. Given the accident described in the petition and the lack of evidence as to plaintiffs' likely damages, the Court finds that defendants have not satisfied their burden of showing by a preponderance of the evidence that more than $75,000 was in controversy at the time of removal.”).
Davis v. JK & T Wings, Inc., No. 11-501, 2012 WL 278728, at *3 (M.D. La. Jan. 6, 2012) and cited cases.
While the Notice of Removal presents additional facts with respect to Plaintiff's injuries and damages, they are likewise insufficient to establish that the amount in controversy is met. Specifically, the Notice of Removal reflects that AAA received Plaintiff's settlement demand (the “Demand”), along with medical records that are not in the record, which discloses that Plaintiff has been diagnosed with three bulging discs and has been recommended for an injection.Bulging discs, even treated with steroid injections, have been held insufficient to establish the amount in controversy; and “[t]his court recognizes that ‘[w]hether or not a herniated disc satisfies the amount in controversy often turns on whether surgery is recommended.'” There is no surgery recommendation in the record.
R. Doc. 1, ¶ III and R. Doc. 1-2. The November 5, 2021 settlement demand states only that an injection was recommended, and categorizes the injection expense as “Future Special Damages.” R. Doc. 1-2, pp. 1, 3. It is unclear if Plaintiff has since undergone the injection.
See Shelton v. Hallmark Trucking Ins. Co., No. 17-1683, 2018 WL 1998341, at *4 (M.D. La. Mar. 27, 2018), report and recommendation adopted sub nom., Shelton v. Hallmark Specialty Ins. Co., No. 17-01683, 2018 WL 1997543 (M.D. La. Apr. 27, 2018): “[A] general review of quantum cases demonstrates that general damages awards for multiple bulging discs often (if not more often than not) do not exceed $30,000-$45,000, even where the plaintiff is actually treated with steroid injections, ” citing Cole v. Mesilla Valley Transportation, No. 16-841, 2017 WL 1682561, *5 (M.D. La. March 14, 2017) (citations omitted).
Thomas v. Louis Dreyfus Commodities, LLC, No. 15-394, 2016 WL 1317937, at *4 (M.D. La. Mar. 11, 2016), report and recommendation adopted, No. 15-394, 2016 WL 1337655 (M.D. La. Apr. 1, 2016), citing Robinson v. Kmart Corp., No. 11-12, 2011 WL 2790192, at *4, n. 4 (M.D. La. Apr. 28, 2011), report and recommendation adopted, 2011 WL 2937952 (M.D. La. July 14, 2011)). Accordingly, courts have found the lack of a recommendation for surgery to be significant in determining whether a plaintiff seeking damages including those for a herniated disc meets the amount in controversy requirement when balanced with other factors in the record. See, e.g., Hebert v. Hanco Nat. Ins. Co., No. 07-362, 2009 WL 255948, at *4-5 (M.D. La. Feb. 3, 2009) (amount in controversy not satisfied where plaintiff “suffers from a herniated disc, without any recommendation for surgery” and the plaintiff “continues to work, continues to engage in activities of daily living, and does not seek damages for mental anguish”); Espadron v. State Farm Mut. Auto. Ins. Co., No. 10-53, 2010 WL 3168417 (E.D. La. Aug. 9, 2010) (amount in controversy not satisfied where plaintiff in car crash suffered a “herniated cervical disc [or] segmental cervical instability” and a “herniated lumbar disc [or] segmental lumbosacral instability” and was a “potential surgical candidate” and plaintiff stipulated that his damages did not exceed $50,000).
AAA has not included any of Plaintiff's medical records, but the Demand states that Plaintiff has only $5,607 in past medical expenses for treatment over approximately six and a half months, which the Demand implies had been conservative up to that point because it refers to past chiropractic treatment, and the recommended “preliminary course of treatment” is an injection. Further, while the Demand states that treatment is ongoing, there is only $12,682 in projected estimated future medical treatment costs. The Demand also seeks “policy limits, ” but there is no indication as to what the policy limits are. Further, although the Demand states that: “[I]t is abundantly clear that Mr. Irvin's injuries will exhaust the limits of any $15k, $25k, $50k, $100k policy;” in response to AAA's request for a stipulation that Plaintiff's damages will not exceed $75,000, Plaintiff's counsel responds: “It's just too soon for us to make a determination about value.” Thus, the information regarding the amount in controversy in the Demand is not entirely consistent with counsel's response to a request for stipulation. Defendants have also not provided any details regarding whether Plaintiff's injuries are permanent, including whether Plaintiff has been recommended for surgery, as previously noted. There is also no evidence of discovery responses that would have bearing on the amount in controversy, including Plaintiff's alleged lost wages and/or property damage, nor does the Petition demand a jury trial.
R. Doc. 1-2, p. 1 (reflecting dates of treatment from March 28, 2021 to October 12, 2021).
R. Doc. 1-2, p. 3.
R. Doc. 1-2, p. 1.
R. Doc. 1-2, p. 3.
R. Doc. 1-2, p. 3. To the extent AAA relies on the Demand's references to state court cases awarding/affirming various damage awards, see Silva v. Hartford Ins. Co. of the Midwest, No. 15-5844, 2016 WL 4501288, at *5 (E.D. La. Aug. 29, 2016): “Overall, Defendant's argument that the amount in controversy is satisfied by citing two Louisiana state court cases with highly individualized facts different from the facts at issue here is unconvincing. Because the fact finder has discretion in determining an appropriate amount of damages based upon the facts of each individual case, monetary awards in previous cases are not sufficient to meet Defendant's burden of establishing that the amount of controversy here is greater than $75,000. The Defendant must point to facts in this case that establish that the actual amount in controversy exceeded $75,000. Moreover, the damages awards cited by Defendant are based on the entire record after trial, whereas subject matter jurisdiction determinations must only be based on the jurisdictional facts that exist at the time of removal. This point is especially salient when the Plaintiff's particular alleged injury cannot be broadly generalized and compared across different plaintiffs with ‘similar' injuries, and when such an injury can result in widely ranging damages awards that do not always satisfy the amount in controversy requirement.”
R. Doc. 1-4.
While a jury trial demand by Plaintiff would not be dispositive of the amount in controversy, it would be another piece of information to consider. See, e.g., Batiste v. Stryker Corp., No. 19-574, 2020 WL 2245845, at *4 (M.D. La. April 22, 2020), report and recommendation adopted, No. 19-574, 2020 WL 2296892 (M.D. La. May 7, 2020) (“While this Court has repeatedly held that a demand for jury trial and a lack of Article 893 allegation are insufficient alone to establish amount in controversy, they are factors to be considered.”)(citation omitted).
Similarly, the failure of a plaintiff to enter into a binding stipulation, and the lack of an Article 893 statement in the Petition, are insufficient to establish that the requisite amount in controversy is met. AAA has not yet met its burden of establishing that the amount in controversy is satisfied. Although Plaintiff has not filed a Motion to Remand, the Court sua sponte raises the issue of whether it may exercise diversity jurisdiction in this matter, specifically whether the parties are completely diverse and whether the amount in controversy requirement has been met.
See Rodney v. Waffle House, Inc., No. 18-481, 2018 WL 6829041, at *8 (M.D. La. Oct. 22, 2018), report and recommendation adopted, No. 18-481, 2018 WL 10809995 (M.D. La. Dec. 18, 2018) (“As an initial matter, there is no indication that Defendant ever requested that Plaintiff execute a stipulation regarding the amount in controversy prior to removal. Even assuming, arguendo, that Plaintiff actually refused to stipulate that the amount in controversy was less than $75,000 prior to removal, this Court has explained that a plaintiff is under no legal obligation to sign such a stipulation, and that the failure to stipulate is but one factor that the court may consider when analyzing whether the amount in controversy is present.”) (citations omitted). See also Lowe v. State Farm Fire & Cas. Co., No. 077454, 2008 WL 906311, at * 2 (E.D. La. April 2, 2008) (“State Farm emphasizes both in the notice of removal and in its opposition that Plaintiffs did not file a pre-removal binding stipulation regarding the amount in controversy. However, Plaintiffs' failure to do so does not relieve the removing party of its burden to establish that the jurisdictional minimum is satisfied.”). See also Ford v. State Farm Mut. Auto. Ins. Co., No. 08-403-JVP-CN, 2009 WL 790150, at *4 (M.D. La. Mar. 25, 2009) (noting: “...all three U.S. District Courts in the State of Louisiana have recognized that the failure to include an Article 893 stipulation alone is insufficient to establish that the jurisdictional minimum is in controversy. See Weber v. Stevenson, 2007 WL 4441261 (M.D. La. 2007)(While the failure to include an allegation in the state court petition that one's damages are less than the federal jurisdictional minimum in accordance with La. C.C.P. art. 893 is entitled to ‘some consideration, it is not, in and of itself, determinative of the amount in controversy. A finding that the failure to include the ‘893' allegation resulted in the satisfaction of the jurisdictional minimum would be tantamount to finding that subject matter jurisdiction may obtain from a procedural omission, which is unsupportable).”). Here, it is not clear whether the refusal to stipulate is because Plaintiff's damages are likely be exceed $75,000, or because Plaintiff's counsel does not know the value of the case (though the email attached to the Notice of Removal suggests the latter). R. Doc. 1-4.
As one court recently noted, “[i]f the removing defendant does not have facts sufficient to support removal when the original petition is received, it is the removing defendant's responsibility to discovery those facts before effecting removal. That is precisely why the ‘other paper' removal rule exists, to ensure that removals will not be filed ‘before their factual basis can be proven [by the removing defendant] by a preponderance of the evidence.'” Bonvillian v. National Liability & Fire Ins. Co., No. 16-1708, 2017 WL 892311, at *3 (W.D. La. Feb. 1, 2017) (quoting Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002)). The Fifth Circuit has repeatedly cautioned against protective removals and has established timing rules that allow a defendant to engage in discovery regarding the amount in controversy before filing a notice of removal. Chapman v. Powermatic, Inc., 969 F.2d 160, 162 (5th Cir. 1992); Mumfrey v. Powermatic, Inc., 719 F.3d 392, 400 (5th Cir. 2013); Bosky, 288 F.3d at 211. AAA is advised that requests for jurisdictional discovery regarding the amount in controversy are generally denied as a matter of course. See, e.g., Hopkins v. Crown Assocs., LLC, No. 18-595, 2018 WL 8496020, at *8 (M.D. La. Oct. 25, 2018), report and recommendation adopted sub nom., Hopkins v. Crown Associated, LLC, No. 18-595, 2019 WL 1199470 (M.D. La. Mar. 14, 2019).
See McDonal v. Abbott Laboratories, 408 F.3d 177, 182, n. 5 (5th Cir. 2005) (“[A]ny federal court may raise subject matter jurisdiction sua sponte.”).
Accordingly, IT IS ORDERED that, by no later than February 25, 2022, Defendant AAA MemberSelect Insurance Company shall file a motion for leave to file an amended Notice of Removal which attaches a comprehensive amended Notice of Removal (i.e., includes all of AAA's numbered allegations, as revised, supplemented, and/or amended) that adequately alleges the citizenship of all parties.
IT IS FURTHER ORDERED that, by no later than March 4, 2022, Defendant AAA MemberSelect Insurance Company shall file a memorandum and supporting evidence concerning whether the amount in controversy requirement of 28 U.S.C. § 1332 is met.
28 U.S.C. § 1447(c) provides, in pertinent part: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”
IT IS FURTHER ORDERED that, by no later than March 18, 2022, Plaintiff Brandon Irvin shall file either: (1) a Notice stating that Plaintiff does not dispute that AAA has established the jurisdictional requirements of 28 U.S.C. § 1332, or (2) a Motion to Remand.
The case will be allowed to proceed if jurisdiction is adequately established.
Signed in Baton Rouge, Louisiana, February 17, 2022.