Sins v. State Farm Ins. Co.

JOSHUA E. SINS v. STATE FARM INSURANCE COMPANY

CIVIL ACTION NO. 19-791-JWD-SDJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

August 10, 2020

NOTICE

Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

Signed in Baton Rouge, Louisiana, on August 10, 2020.

/s/_________

SCOTT D. JOHNSON

UNITED STATES MAGISTRATE JUDGE

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Before the Court is a motion by Plaintiff Joshua E. Sins to remand this matter to the 19^th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana. (R. Doc. 8), filed December 17, 2019. Defendant State Farm Mutual Automobile Insurance Company opposes remand, filing a Memorandum in Opposition to Motion to Remand on January 6, 2020. (R. Doc. 11).

For the reasons that follow, it is recommended that Plaintiff's Motion to Remand (R. Doc. 8) be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 2, 2017, Plaintiff was involved in a motor-vehicle accident in Baton Rouge, Louisiana.¹ Plaintiff settled his claims against the driver of the other vehicle, who was at fault, prior to filing the instant litigation.² At the time of the accident, Plaintiff had an automobile insurance policy issued by Defendant, which included Underinsured/Uninsured Motorist ("UM") Coverage.³

On July 31, 2019, Plaintiff filed suit against Defendant in the 19^th Judicial District Court ("JDC").⁴ In his Petition, Plaintiff lists the injuries he allegedly suffered as a result of the accident.⁵ Plaintiff additionally demands the full policy limits of his UM Coverage, though he does not provide either the amount of that coverage or a copy of the applicable insurance policy, and asserts that his damages "are in excess of Fifty Thousand and 00/100 ($50,000.00) Dollars."⁶ Plaintiff's Petition was served on Defendant on August 6, 2019.⁷

On September 30, 2019, Defendant propounded discovery requests on Plaintiff, to which Plaintiff provided responses on October 29, 2019.⁸ In response to Defendant's first Request for Admission, which asked Plaintiff to "[a]dmit that your claim for damages is in excess of $75,000.00, exclusive of interest and costs," Plaintiff answered "Admit."⁹

Defendant then filed its Notice of Removal (R. Doc. 1) with this Court, asserting federal subject matter jurisdiction under 28 U.S.C. § 1332, on November 18, 2019.¹⁰ Per Defendant, there is complete diversity of citizenship among the parties, and the matter in controversy exceeds the jurisdictional amount of $75,000.¹¹

In response, on December 17, 2019, Plaintiff filed the instant Motion to Remand (R. Doc. 8) in which he argues that Defendant's Notice of Removal was untimely.¹² Specifically, Plaintiff argues that Defendant filed its Notice of Removal more than 30 days after receiving, through service of process, Plaintiff's Petition, from which Defendant could have ascertained that the case was removable, making it untimely under 28 U.S.C. § 1446(b).¹³ In addition, Plaintiff seeks costs and attorneys' fees associated with the removal under 28 U.S.C. § 1447(c).¹⁴

Defendant filed a Memorandum in Opposition to Motion to Remand (R. Doc. 11) on January 6, 2020, claiming that it timely filed its Notice of Removal within 30 days of receipt of Plaintiff's October 29, 2019 discovery response admitting the jurisdictional amount in controversy had been satisfied.¹⁵ Per Defendant, Plaintiff's Petition was not originally removable as it "failed to set forth specific, affirmative allegations in objective text that the amount in controversy exceeded $75,000.00."¹⁶ Thus, Defendant claims it was not until it received Plaintiff's response admitting that his claim for damages exceeded $75,000.00 that it could first be ascertained that the case was removable.¹⁷ Because the Notice of Removal was filed within 30 days of receipt of that discovery response, Defendant asserts removal was timely.¹⁸

II. LAW AND ANALYSIS

A party may remove an action from state court to federal court if the action is one over which the federal court has subject matter jurisdiction. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing 28 U.S.C. § 1441(a)). The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper. Id. (citationsomitted). "Any doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction." Bartel v. Am. Export Isbrandtsen, 64 F.Supp.3d 856, 862 (M.D. La. 2014) (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)). "Removal statutes are to be construed strictly against removal and for remand, and a failure to timely file a notice of removal is a defect that requires remand to state court." Delaney v. Viking Freight, Inc., 41 F.Supp.2d 672, 674 (E.D. Tex. 1999) (citing Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996); Royal v. State Farm Fire & Cas. Co., 685 F.2d 124, 127 (5th Cir. 1982)) (internal citations and quotations omitted).

28 U.S.C. § 1446 sets forth the general procedure for removal. See Vinson v. Sheraton Operating Corp., No. 01-1444, 2001 WL 1090793, at *1 (E.D. La. Sept. 14, 2001). Generally, a civil action must be removed within 30 days after the defendant received "a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter." 28 U.S.C. § 1446(b)(1). However, if the case is not removable based on the initial pleading, "a notice of removal may be filed within 30 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." § 1446(b)(3). The Fifth Circuit has held that "the information supporting removal in a copy of an amended pleading, motion, order or other paper must be 'unequivocally clear and certain' to start the time limit running for a notice of removal under the second paragraph of section 1446(b) [now known as 1446(b)(3)]."¹⁹ Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002). Additionally, in thecontext of § 1446(b)'s "other paper" doctrine, "a case becomes removable only when a 'voluntary act' of the plaintiff makes it ascertainable for the first time that a case is removable." Schaefer v. Kodiak Mfg., Inc., No. 11-619, 2011 WL 1656081, at *3 (E.D. La. May 2, 2011) (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996)).

With respect to the 30-day period from the defendant's receipt of the initial pleading, per § 1446(b)(1), the Fifth Circuit has provided a bright line rule that "the thirty-day removal period under the first paragraph is triggered only where 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'." Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 399 (5th Cir. 2013) (quoting Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992)) (emphasis added by Mumfrey). Additionally, the Fifth Circuit has rejected a "due diligence" standard that would require a defendant to inquire as to the amount in controversy and has instead set out a bright line rule. Chapman, 969 F.2d at 163.²⁰ If a plaintiff wants the 30-day period in § 1446(b)(1) to run from the defendant's receipt of the initial pleading, a plaintiff should place in that pleading "a specific allegation that damages are in excess of the federal jurisdictional amount." Chapman, 969 F.2d at 163.²¹ The initial pleading in this action does not contain a specific allegation that damages are inexcess of the federal jurisdictional amount. Accordingly, the 30-day period for removing the action set out in § 1446(b)(1) was not triggered by service of the initial pleading.

Despite Plaintiff's failure to include such an allegation regarding the amount of damages being sought in his initial pleading, Plaintiff offers several other arguments as to why receipt of his Petition should have triggered the 30-day removal window. First, as previously stated, Plaintiff claims that "it was apparent from the face of the Petition that the amount in controversy exceeded $75,000 at the time of service of the Petition."²² However, this is not the proper standard to be applied here. In a case in which, post-removal, there is a question as to whether the jurisdictional amount in controversy has been met, a court must determine whether the amount in controversy is "facially apparent" based on the allegations in the original pleading. Mumfrey, 719 F.3d at 400 (citing Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000); Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999)). Hence, Plaintiff here lists his extensive array of alleged injuries from the automobile accident, claiming such injuries make the jurisdictional amount apparent on the face of the complaint and citing cases in which Louisiana courts have awarded damages in excess of $75,000 for similar injuries.²³ "However, the 'facially apparent' inquiry is relevant only to 'amount...