Opinion
Civil Action No. 00-1982 SECTION: "R" (3)
November 2, 2000
ORDER AND REASONS
Before the Court is a motion to remand this action to state court pursuant to 28 U.S.C. § 1446 (b). For the following reasons, the plaintiffs' motion is DENIED.
I. Background
This suit arises out of an automobile accident that occurred on June 10, 1999 in New Orleans, Louisiana. Plaintiffs filed suit in the Civil District Court for the Parish of Orleans on March 20, 2000. In that petition, plaintiffs allege that on June 10, 1999, Toshja Brown and Cecily Brown sustained injuries resulting from a collision with an automobile operated by Lamar P. Richard. In addition, Cyril Brown, husband of Toshja Brown, claimed injuries resulting from loss of consortium, services and society of his wife, Toshja Brown. On June 19, 2000, plaintiffs responded to defendants' interrogatories.
The original Petition For Damages erroneously named the defendant as Lamar P. Richard. On April 6, 2000, plaintiffs filed a Supplemental and Amended Petition with the Civil District Court for the Parish of New Orleans substituting the name Richard Paulk in place of Lamar P. Richard.
On July 5, 2000, defendants filed a petition to remove this matter to federal court asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332 (a). Defendants claim that they first became aware that the amount in controversy exceeds $75,000.00, exclusive of costs and interests, upon receipt of a doctors report recommending that Toshja Brown undergo back surgery for her alleged injuries. Defendants claim that this report was received on June 20, 2000. Plaintiffs now move to remand this matter to state court claiming that defendants fail to establish diversity of citizenship and that defendants' removal was untimely.
II. Discussion
Generally, a defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction. See 28 U.S.C. § 1441 (a). "The removing party bears the burden of establishing that federal jurisdiction exists" at the time of removal. De Aguilar v. Boeing Company, 47 F.3d 1404, 1408 (5th Cir. 1995); see also Allen v. RH Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) ("[T]he jurisdictional facts that support removal must be judged at the time of removal . . . ."). Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over the subject matter of all actions where (1) the amount in controversy exceeds $75,000.00, exclusive of interest and costs and (2) complete diversity of citizenship exists between the plaintiffs and the defendants. The Court must remand the matter, however, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." Id. § 1447(c). Plaintiffs have moved for a remand to state court for the following reasons: (1) defendants did not meet their burden of alleging complete diversity of the parties; (2) the petition for removal was not joined by all defendants; (3) removal was untimely.
A. Alleging Diversity
plaintiffs argue that the Petition for Removal is defective because defendants fail to establish the citizenship of the defendant, Zurich Insurance Company. For purposes of determining diversity of citizenship, a corporation is deemed to be a citizen of the state in which it has been incorporated and the state where it has its principal place of business. See 28 U.S.C. § 1332 (c)(1). It is often necessary for the party seeking removal to state the facts showing citizenship because these facts may not appear in the complaint. See Schroeder v. Transworld Airlines, Inc, et al., 702 F.2d 189, 191 (9th Cir. 1983).
In the petition for removal, defendants stated that jurisdiction was based upon diversity of citizenship pursuant to 28 U.S.C. § 1332. Defendants used the petition for removal to clarify that defendants, Richard Paulk and Sun State Control, Inc., "are domiciliaries of Florida. Defendants further stated in the petition for removal that Zurich Insurance Company was served through the Louisiana Secretary of State. It is well established that the citizenship of an insurer is the same as the insured for purposes of determining diversity under 28 U.S.C. § 1332 (c)(1). However, plaintiffs claim that because defendants did not allege the citizenship of Zurich Insurance Company in their petition for removal, the removal was defective. Because plaintiffs' petition for damages alleges that Zurich Insurance Company is a foreign insurance company authorized to do and doing business in the State of Louisiana, the Court finds when viewing the petition for damages and the petition for removal together, defendants have demonstrated diversity of citizenship.
B. Failure of All Defendants to Join Petition for Removal
Plaintiffs next argue that not all of the defendants joined in the petition for removal. Generally, a petition for removal fails unless all defendants join. See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993). Plaintiffs base this assertion on the fact that the petition for removal was filed by Richard Paulk, Sun State Control, Inc. and Zurich Insurance Company. Plaintiffs claim that Richard Paulk had not been served with the petition for damages, even though he filed an answer to the petition for damages. Based on these facts, plaintiffs argue that the petition for removal is procedurally defective because Mr. Paulk did not join in the removal petition. (See Pls.' Mem. Supp. Mot. Remand at 10).
In the petition for removal, defendants clearly state that the movers are Richard Paulk, Sun State Control, Inc., and Zurich Insurance Company. At the time that plaintiffs filed their petition for damages, some confusion concerning the naming of Mr. Paulk as a defendant arose because the police report listed Lamar P. Richard as the driver of the car, rather than Mr. Paulk. Subsequently, plaintiffs named Lamar P. Richard as a defendant in their petition for damages when the driver was actually Mr. Paulk. Realizing this mistake, on April 6, 2000, plaintiffs amended the petition for damages substituting Richard Paulk as a defendant in place of Lamar P. Richard.
Plaintiffs now attempt to use this mistake to defeat the petition for removal despite the fact that plaintiffs have previously acknowledged the error and have amended the petition for damages to correctly name Richard Paulk as a defendant. In addition, the record from the Civil District Court for the Parish of Orleans contains an affidavit of service on Lamar P. Richard. Rather than unduly delay matters and file exceptions as to identity, Mr. Paulk filed an answer because both parties agree that Mr. Paulk was the intended recipient of the petition for damages. Mr. Paulk joined in the petition for removal. Therefore, the Court concludes that all of the defendants have joined in the petition for removal.
C. Untimely Removal
Finally, plaintiffs argue that this case should be remanded because defendants failed to remove the case timely pursuant to 28 U.S.C. § 1446 (b). Plaintiffs claim that defendants were required to file the petition for removal within thirty days: (1) of service of plaintiffs' petition; (2) of receipt of the plaintiffs' jury demand; or (3) in the alternative, of obtaining knowledge that surgery was recommended for plaintiffs. Defendants argue that the petition for removal was timely because the amount in controversy was not ascertainable until receipt of plaintiffs' answers to interrogatories and medical records indicating that a doctor recommended that plaintiff Toshja Brown should have back surgery.
The timeliness of a petition for removal is governed by 28 U.S.C. § 1446 (b). Section 1446(b) provides in pertinent part that:
[t]he notice of removal of a civil action or proceeding shall be filed within thirty 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).
The Fifth Circuit interprets section 1446(b) to provide a two-step test to determine whether a defendant has timely removed. See Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir. 1992). The first paragraph of section 1446(b) applies to cases that are removable as initially filed. The second paragraph of section 1446(b) applies to cases that are not removable at the time they are originally filed, but become removable at a later time. See Johnson et al. v. Heublein Inc., 2000 WL 1272841 at *3 (5th Cir. Sept. 7, 2000) (citing New York Life Ins. Co. v. Doshotel et al., F.3d 873, 866 (5th Cir. 1998)). Therefore, if the case is not originally removable, a defendant may remove a case within thirty days upon discovery that the case is removable. See 28 U.S.C. § 1446 (b).
Plaintiffs argue that it is readily apparent from the petition for damages that the amount in controversy exceeds $75,000 and that defendants failed to remove the case within thirty days of being served with plaintiffs petition. (Pls.' Mem. Supp. Mot. Remand at 7). In Chapman v. Powermatic, Inc., the Fifth Circuit adopted the rule that the time for removal is triggered only when the initial pleading "affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court." Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992) Louisiana law prohibits a plaintiff from pleading a specific amount of monetary damages. See LA. CODE CIV. PROC. art. 893. Plaintiffs' petition alleges that Toshja Brown sustained injuries to her neck, back, body, and mind including: past and future mental anguish and physical suffering; past and future expenses for medical care; expenses for transportation to and from health care providers; past and future loss of earnings; impaired earning capacity; and property damage to her vehicle. In addition, plaintiff Cyril Brown, Toshja Brown's husband, asserts a claim for loss of consortium.
Courts have found that these types of allegations are "fairly vanilla" and do not reveal the extent of the plaintiff's injuries. See Seaman v. Tetra Applied Technologies, Inc., 2000 WL 222851, at *2 (E.D. La. Feb 18, 2000); Parker V. Millar Elevator Service Co., 2000 64289, at *3 (E.D. La. Jan. 26, 2000). Furthermore, in their opposition to the motion for remand, defendants attach a petition for damages from a lawsuit filed by plaintiffs' counsel in an unrelated case in which the claim alleges injuries and uses boilerplate language nearly identical to the language used in the petition for this case. ( See Defs.' Mem. Opp'n Mot. Remand Ex. A). That case was filed in the First Parish Court for the Parish of Jefferson, Louisiana, a court with a jurisdictional cap of $20,000. ( See id.) Thus, plaintiffs' counsel has used the same language to allege damages that are significantly lower than $75,000. Accordingly, the Court finds that given the description in the petition, it is not facially apparent that plaintiffs' claims were more likely than not to exceed $75,000. Therefore, the defendants could not file a petition for removal until it was apparent that plaintiffs' injuries exceeded the jurisdictional amount of $75,000.
Plaintiffs alternatively argue that, pursuant to paragraph two of section 1446(b), the time to file the petition for removal was triggered by plaintiffs' demand for a jury trial. On March 21, 2000, plaintiffs filed a jury demand in the Louisiana State Court. A trial by jury in Louisiana state court requires that the claim be for at least $50,000. See LA. CODE CIV. PROC. Art. 1732(1). Thus, plaintiffs assert that because the jury demand demonstrates that plaintiffs' damages exceed $50,000, the defendants should have known that plaintiffs' damages also exceeded $75,000.
While the jury demand for state court can be a factor in determining whether the amount in controversy requirement for federal jurisdiction is satisfied, this factor alone is not controlling to satisfy the jurisdictional requirement. See Parker, 2000 WL 64289, at *2; Gaitor v. Peninsular Occidental Steamship Company, 287 F.2d 252 (5th Cir. 1961). In Peninsular, the Fifth Circuit declined to construe a complaint filed in Florida state court demanding damages "in excess of $5,000.00" as also exceeding the sum of $10,000, the amount then necessary for federal jurisdiction for diversity cases. See id. at 254. The Court likewise finds that asserting a jury demand, which requires a claim for at least $50,000, does not automatically mean the claim is for at least $75,000. Therefore, the Court finds that the Jury Demand on March 21, 2000 and the boilerplate language in the plaintiffs' petition are not sufficient to ascertain that plaintiffs' claims exceed $75,000. Plaintiffs' petition for damages therefore did not trigger the thirty-day period for removal under 28 U.S.C. § 1446 (b).
Plaintiffs also argue in the alternative that defendants should have removed the case within thirty days after defense counsel sent a letter dated March 16, 2000 to plaintiffs' counsel stating "you indicated your client was to be seen for surgery by Dr. Vogel" and asking for a written report from Dr. Vogel or any other physician recommending surgery. ( See Pls.' Mem. Supp. Mot. Remand Ex. 1.) In this March 16 letter, defendants acknowledged that counsel for the plaintiffs had previously stated that Toshja Brown "was to be seen for surgery." While the parties dispute what the letter means, as well as the accuracy of the information defendants received from plaintiffs' counsel, the Court finds that the letter does not satisfy "other paper" requirement of Section 1446(b). This follows because the letter was not received by defendants by service or otherwise, but is a document sent by defendants to. plaintiffs. Defendants' counsel states that his letter was based on information he received, from plaintiffs' counsel orally. Section 1446(b) contemplates the receipt by defendant of a writing by service or otherwise indicating the jurisdictional amount is exceeded. See 14C CHARLES ALAN WRIGHT, ARTHUR R. MILLER EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3732 (3d ed. 1998). Therefore, the March 16 letter does not satisfy Section 1446(b).
On June 20, 2000, defendants received interrogatories and medical records that indicated that Toshja Brown was recommended for back surgery. Defendants received this evidence on June 20, 2000 and filed their petition for removal on July 5, 2000, within the thirty days. The Court finds that defendants' removal was timely, and plaintiff's motion for remand must be denied.
III. Conclusion
For the foregoing reasons, plaintiffs' motion to remand this case to the Civil District Court for the Parish of Orleans, State of Louisiana is DENIED.