Carter v. Strategic Restaurant Acquisition Company, LLC, et al, No. 2:2016cv02673 - Document 27 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying 10 Motion to Remand to State Court; denying 13 Motion to Dismiss. Signed by Judge Susie Morgan. (bwn)
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Carter v. Strategic Restaurant Acquisition Company, LLC, et al Doc. 27 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CARMALITA CARTER, Plain tiff CIVIL ACTION VERSU S N O. 16 -2 6 73 STRATEGIC RESTAU RAN T ACQU ISITION CO. LLC, ET AL. D e fe n d an ts SECTION : “E”( 5 ) ORD ER AN D REAS ON S Before the Court are two m otions filed by Plaintiff Carm alita Carter (“Plaintiff”): (1) a m otion to rem and, 1 and (2) a m otion to dism iss. 2 Both m otion s are opposed. 3 For the reasons that follow, the m otions are D EN IED . BACKGROU N D This case arises from an alleged slip-and-fall incident at a Burger King restaurant located on Chef Menteur Highway in New Orleans, Louisiana. 4 According to the Plaintiff, at approxim ately 11:0 0 a.m . on Decem ber 4, 20 14, she entered the Burger King restaurant and proceeded to the wom en’s restroom . 5 Plaintiff m aintains that, upon entering the restroom , she “slipped and fell in a puddle of what appeared to be soapy water.”6 Plaintiff alleges, as a result, she “injured her left arm , shoulder, low back and neck.”7 On Novem ber 16, 20 15, Plaintiff filed suit in the Civil District Court for the Parish of Orleans, State of Louisiana, against (1) Strategic Restaurant Acquisitions Com pany, LLC (“Strategic”), the owner of the Burger King restaurant where the incident occurred, 1 R. Doc. 10 . R. Doc. 13. 3 R. Docs. 17, 19. In addition, both parties were granted leave of court to file supplem ental briefing with respect to Plaintiff’s m otion to rem and. See R. Docs. 23, 26. 4 See R. Doc. 1-5 at 3; R. Doc. 1 at 1. 5 R. Doc. 1-5 at 4. 6 R. Doc. 1-5 at 4. 7 R. Doc. 1-5 at 4. 2 1 Dockets.Justia.com and (2) J ohn Doe, the “m anager or person in charge of the Burger King and its prem ises.”8 Strategic was served with the lawsuit on J anuary 20 , 20 16. 9 On March 31, 20 16, Strategic rem oved the action to federal court on the jurisdictional basis of diversity of citizenship. Plaintiff then filed a m otion to rem and to state court on April 8 , 20 16, arguing Strategic’s rem oval was not tim ely under 28 U.S.C. § 1446. 10 Also, on April 13, 20 16, Plaintiff filed a m otion to dism iss Strategic’s petition for rem oval on the grounds that Strategic failed to properly allege its citizenship for purposes of diversity jurisdiction. 11 LAW AN D AN ALYSIS I. M OTION TO DISMISS P ETITION FOR R EMOVAL Plaintiff m oves to dism iss Strategic’s petition for rem oval, arguing Strategic failed to properly allege its citizenship for purposes of federal diversity jurisdiction. 12 Strategic filed its initial petition for rem oval on March 31, 20 16. 13 In the rem oval petition, however, Strategic failed to correctly plead its citizenship. Strategic, form ally known as Strategic Restaurants Acquisition Com pany, asserted in the petition for rem oval that is a “foreign[] lim ited liability com pany, dom iciled in the state of Delaware with its principal place of business in the state of California.”14 However, this is not the proper m anner in which to allege the citizenship of a lim ited liability com pany. 15 Instead, the citizenship of a lim ited liability com pany is determ ined by the citizenships of all of its m em bers. 16 If one of its m em bers is an LLC or a partnership, the citizenships of that entity’s m em bers or partners 8 See generally R. Doc. 1-5. R. Doc. 1-5 at 1. 10 R. Doc. 10 . 11 R. Doc. 13. 12 R. Doc. 13-1 at 2. Plaintiff acknowledges that Strategic, by order of the Court, filed an am ended notice of rem oval, m aintaining the am ended notice and the allegations therein are also deficient. R. Doc. 13-1 at 1. 13 R. Doc. 1. 14 R. Doc. 1 at 1. 15 See generally Greenville Im aging, LLC v . W ashington Hosp. Corp., 326 F. App’x 787 (5th Cir. 20 0 9). 16 Harvey v. Grey W olf Drilling Co., 542 F.3d 10 77, 10 8 0 – 81 (5th Cir. 20 0 8). 9 2 m ust continue to be traced until an individual and/ or a corporation is reached. 17 Strategic’s March 31, 20 16 petition for rem oval did not identify its m em bers, and the Court was thus unable to determ ine, based on the petition for rem oval, whether the parties were diverse for purposes of subject-m atter jurisdiction under 28 U.S.C. § 1332. The Court ordered Strategic to am end its petition for rem oval to properly allege its citizen ship. Strategic did so, filing an am ended notice of rem oval on April 8, 20 16. 18 In the am ended notice, Strategic alleged it is a lim ited liability com pany and a “wholly owned subsidiary of SRAC Holding I, Inc., a Delaware [c]orporation, whose principal place of business is located in California.”19 Stated differently, Strategic’s sole m em ber is SRAC Holding I, Inc., which is a citizen of Delaware and California. 20 Therefore, Strategic, too, is a citizen of California and Delaware. Plaintiff Carm alita Carter is a citizen of Louisian a, and is thus diverse from Strategic. 21 The parties are com pletely diverse, 22 and Plaintiff’s m otion to dism iss on that basis m ust be den ied. II. M OTION TO R EMAND AS U NTIMELY The parties to this action are com pletely diverse, 23 and there is no dispute that the requisite am ount in controversy, exclusive of interest and costs, exceeds $ 75,0 0 0 . 24 The 17 See Mullins v. TestAm erica, Inc., 564 F.3d 386, 397 (5th Cir. 20 0 9). R. Doc. 12. 19 R. Doc. 12 at 3. 20 See, e.g., N ationstar Mortgage LLC v. Baker, No. 4:15-cv-0 0 455, 20 15 WL 590 8534, at *2 (E.D. Tex. Sept. 18, 20 15) (“Nationstar is a lim ited liability com pany headquartered in Texas that is ‘wholly owned by two Delaware lim ited liability com panies – Nationstar Sub1 LLC and Nationstar Sub2 LLC – that are in turn wholly own ed by Nationstar Mortgage Holdin gs Inc., a Delaware corporation with its principal place of busin ess in Texas.’ Because Nationstar Mortgage Holdings Inc. is a Delaware corporation with its principal place of business in Texas, it is a citizen of Delaware an d Texas for diversity purposes. Without any evidence from Defendant to the contrary regardin g the citizenship of Plaintiff's m em bers, Plaintiff Nationstar Mortgage LLC is thus considered a citizen of Delaware and Texas for diversity purposes.”). 21 See R. Doc. 1-5 at 3; R. Doc. 1 at 3. 22 Defendant J ohn Doe is an unidentified, unserved party. His presence as a nam ed defendant is ignored for purposes of assessin g the presence of com plete diversity. See, e.g., Harvey v . Shelter Ins. Co., No. 13392, 20 13 WL 1768658 (E.D. La. Apr. 24, 20 13); W estley v. Allstate Ins. Co., No. 0 6-8 28 8, 20 0 7 WL 442221 (E.D. La. Feb. 6, 20 0 7). 23 See supra notes 20 – 22 an d accom panyin g text. 24 See generally R. Docs. 10 , 19, 23, 26. 18 3 sole dispute with respect to the m otion to rem and is whether Strategic’s rem oval of this action was tim ely . The tim ing of rem oval is governed by 28 U.S.C. § 1446, which sets forth, in effect, a two-part test for analyzing whether the rem oval of an action is tim ely. First, the court m ust determ ine whether the action was rem ovable as initially filed. Section 1446(b)(1) states: The notice of rem oval 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, or within 30 days after the service of sum m ons 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. If the action was not rem ovable as initially filed, the court then m ust evaluate whether the case becam e rem ovable at a later tim e and, if so, when. Section 1446(b)(3) provides that: [I]f the case stated by the initial pleading is not rem ovable, a notice of rem oval m ay be filed within 30 days after receipt by the defen dant, through service or otherwise, of a copy of an am ended pleading, m otion, order or other paper from which it m ay first be ascertained that the case is one which is or has becom e rem ovable. a. Section 1446(b)(1) – Rem ovable as Initially Filed First, the Court m ust determ ine whether the case was rem ovable as initially filed. In m aking this determ ination, the Court looks to the initial pleading, the state court petition. 25 To be rem ovable as initially filed, the state court petition m ust “affirm atively reveal[] on its face that the plaintiff is seeking dam ages in excess of the m inim um jurisdictional am ount of the federal court.”26 Even in Louisiana, where pleading a specific 25 See, e.g., Quest v. Church Mut. Ins. Co., No. 13-4872, 20 13 WL 60 44380 , at *1 (E.D. La. Nov. 13, 20 13); Seaux v. W al-Mart Stores, Inc., No. 6:0 6CV0 90 9, 20 0 6 WL 2460 843, at *1– 2 (W.D. La. Aug. 22, 20 0 6). 26 See, e.g., Chapm an v. Pow erm atic, Inc., 969 F.2d 160 , 161– 62 (5th Cir. 1992); see also Mum frey v . CVS Pharm acy , Inc., 719 F.3d 392, 40 0 (5th Cir. 20 13) (“Notably, there seem s to be n o Fifth Circuit case since Chapm an that calls into question its bright line rule for tim eliness disputes. Thus, the rule rem ains that the thirty-day clock is not triggered unless the in itial pleading ‘affirm atively reveals on its face’ that the plaintiffs sought dam ages exceeding the jurisdictional am ount.”); Clark v. Dolgencorp, LLC, No. 13-2336, 20 14 WL 458220 , at *3 (W.D. La. Feb. 4, 20 14). 4 am ount of dam ages is prohibited by law, 27 the state court petition m ust affirm atively state that the am ount in controversy exceeds the federal jurisdictional am ount, otherwise the 30 -day rem oval window does not begin to run upon service of the initial pleading. 28 In fact, Louisiana Code of Civil Procedure article 8 93(A) states, in part: No specific m onetary am ount of dam ages shall be included in the allegations or prayer for relief of any original, am ended, or incidental dem and. . . . except that if a specific am ount of dam ages is necessary to establish . . . the lack of jurisdiction of federal courts due to insufficiency of dam ages, . . . a general allegation that the claim exceeds or is less than the requisite am ount is required. 29 The state court petition in this action conform s to article 893(A) in that it does not include an allegation of the specific am ount of dam ages sought, but the petition does not conform to the extent it does not include an allegation that the am ount of dam ages exceeds or is less than the federal jurisdictional am ount. 30 Instead, the petition includes only general dam ages allegations without expressing that the am ount of Plaintiff’s dam ages exceeds $ 75,0 0 0 . For exam ple, the petition alleges Plaintiff “slipped and fell,” 27 LA. CODE . CIV. P ROC. art. 893. See, e.g., Green v. Geico Gen. Ins. Co., No. 15-3968, 20 15 WL 5971760 , at *4 (E.D. La. Oct. 14, 20 15) (“Plaintiff did not allege specifically that the am oun t in controversy exceeded the m in im um am ount required to invoke a federal court’s diversity jursidcition. Louisiana law prohibited Plaintiff from allegin g a specific am ount of m onetary dam ages, but Plaintiff could have stated that the federal am ount in controversy requirem ent was satisfied. Because Plaintiff failed to do so, the thirty-day rem oval clock did not begin runnin g when GEICO was served with the petition.”); Scott v. Office Depot, Inc., No. 14-791-J J B-RLB, 20 15 WL 2137458 , at *4 n.1 (M.D. La. May 7, 20 15) (citations om itted) (“Pursuant to Chapm an , if a plaintiff wants the 30 -day period to run from the defendant’s receipt of the initial pleading, a plaintiff should place in that pleadin g ‘a specific allegation that dam ages are in excess of the federal jurisdictional am ount.’ Such a statem ent would provide notice to defendants that the rem oval clock had been triggered, but would not run afoul of state laws, such as Louisiana, that prohibit pleadin g unliquidated dam age am ounts.”); Pay ne v. Forest River, Inc., No. 13-679-J J B-RLB, 20 14 WL 1120 251, at *3 (M.D. La. Mar. 20 , 20 14) (citing Chapm an, 969 F.2d at 163) (“Plaintiffs alleged unspecified am ounts of categorical dam ages, consistent with Louisiana’s state court practice. Plaintiffs are therefore incorrect, as a m atter of law, that the 30 -day tim e period for rem oval began to run when Defendant received service.”); Carson v. Allstate Indem . Co., No. 0 960 -C, 20 0 9 WL 1146996, at *2 (M.D. La. Apr. 23, 20 0 9) (“Carson did not (and could not, under Louisiana law) allege a specific m onetary am ount of dam ages in the petition and m erely alleged that his dam ages exceeded $ 50 ,0 0 0 . Thus, based solely upon the am biguous description of Carson’s dam ages in the petition, Allstate did not have a reasonable basis for rem oving the action to this Court within thirty (30 ) days of bein g served with the petition .”). 29 LA. CODE . CIV. P ROC. art. 8 93. 30 See id.; see also generally R. Doc. 1-5. 28 5 injuring her “left arm , shoulder, low back and neck.”31 It also states that Plaintiff seeks dam ages for (1) past, present, and future pain and suffering, (2) past, present, and future m ental anguish and m ental pain and suffering, (3) past, present, and future lost incom e, lost wages, and loss of earning potential, (4) past, present, and future m edical expenses, and (5) future disability. 32 General allegations such as these, without an explicit allegation that the am ount of dam ages exceeds the federal jurisdictional am ount, are not sufficient to com m ence the running of the 30 -day rem oval window based on the initial pleading under Section 1446(b)(1). This action was not rem ovable as initially filed. b. Section 1446(b)(3) – Rem ovable at a Later Tim e Because the case was n ot initially rem ovable based on the state court petition, the Court m ust determ ine when the 30 -day rem oval window began to run. Section 1446(b)(3) provides the analytical fram ework. Under 28 U.S.C. § 1446(b)(3), the 30 -day window begins to run “after receipt by the defendant, through service or otherwise, of a copy of an am ended pleading, m otion, order or other paper from which it m ay first be ascertained that the case is one which is or has becom e rem ovable.” To trigger the com m en cem ent of the 30 -day rem oval window under this section, the “inform ation supporting rem oval contained in the other paper m ust be unequivocally clear and certain.”33 The Fifth Circuit has stated: This clearer threshold prom otes judicial econom y. It should reduce “protective” rem ovals by defendants faced with an equivocal record. It should also discourage rem ovals before their factual basis can be proven by a preponderance of the evidence through a sim ple an d short statem ent of 31 R. Doc. 1-5 at 4. R. Doc. 1-5 at 5. 33 Fortenberry v. Prine, No. 2:14-CV-56-KS-MTP, 20 14 WL 2993668 , at *2 (S.D. Miss. J uly 2, 20 14) (em phasis added) (internal quotation m arks om itted) (quoting Bosky v . Kroger Tex., LP, 288 F.3d 20 8 , 211 (5th Cir. 20 0 2)). See also Cole v. Know ledge Learning Corp., 416 F. App’x 437, 440 (5th Cir. 20 11); Darensburg v. N GM Ins. Co., No. 14-1391, 20 14 WL 40 72128 , at *2 (E.D. La. Aug. 13, 20 14); Muse v. Low e’s Hom e Centers, Inc., No. 2:11-cv-0 1481, 20 11 WL 50 25326, at *3 (E.D. La. Oct. 21, 20 11). 32 6 the facts. In short, a bright-line rule should create a fairer environm ent for plaintiffs and defendants. 34 Plaintiff identifies J anuary 13, 20 16, as the date on which the 30 -day window began to run. According to Plaintiff, not only did Defendant receive a copy of the state court petition on that date, Defendant was also forwarded certain of Plaintiff’s m edical records, which included a surgery recom m endation and an estim ated cost of the surgery. 35 Plaintiff m aintains, as of J anuary 13, Defendant was in possession of the state court petition and had knowledge of Plaintiff’s “need for expensive surgery,” and it was thus evident that the am ount in controversy exceeded $ 75,0 0 0 . 36 Plaintiff argues the surgery cost “tens of thousands of dollars,”37 but the records sent to Defendant on J anuary 13 indicated the projected cost was approxim ately $ 19,0 0 0 .0 0 . 38 Moreover, it was not clear on J anuary 13 whether the Plaintiff would definitely undergo surgery or, if she did, what the extent and nature of the surgery would be. 39 Based on the record before the Court, as of J anuary 13, the Defendant knew only (1) that Plaintiff alleged m iscellaneous injuries to her arm , shoulder, neck, and back; (2) that a surgery recom m endation had been m ade; and (3) that the estim ated cost of surgery was around $ 19,0 0 0 . From what the Court can tell, the records transm itted as of J anuary 13 did not include detailed inform ation as to the extent of Plaintiff’s injuries or her need for surgery, including whether surgery would be perform ed. 40 From this inform ation alone, the Court finds that it was not 34 Bosky , 288 F.3d at 211. R. Doc. 10 -1 at 3. 36 R. Doc. 10 -1 at 3. 37 R. Doc. 10 -1 at 3. 38 R. Doc. 10 -7 at 1. 39 See Carter v . E-Z Mart Stores, Inc., No. 0 8-0 727, 20 0 9 WL 1788541, at *3 (W.D. La. J un e 23, 20 0 9) (“[M]ere showing that surgery is a possibility at the tim e of rem oval is not sufficient evidence as to the jurisdictional am ount in controversy.”) (citin g Spiegel v. Alvi, No. 0 8-5127, 20 0 9 WL 120 90 12, at *1 (E.D. La. May 1, 20 0 9); Anderson v. Pep Boy s-Mann y , Moe, & Jack, Inc., No. 0 8-3861, 20 0 9 WL 12690 69, at *3 (E.D. La. May 6, 20 0 9)). 40 See id. 35 7 unequivocally clear and certain that the am ount-in-controversy requirem ent exceeded $ 75,0 0 0 as of J anuary 13, 20 16. 41 The 30 -day rem oval window did not begin to run on J anuary 13, 20 16. It was not until March 15, 20 16, that the Defendant learned m ore about Plaintiff’s surgery, that she had actually undergone surgery, and, significantly, Plaintiff’s refusal to stipulate to dam ages. On that date, Plaintiff transm itted additional m edical records to the Defendant, which indicated that the total cost of the surgery was $ 23,393.34. 42 Also on March 15, Plaintiff refused to stipulate that her dam ages did not exceed the federal jurisdictional am ount. 43 Defendant argues that, when Plaintiff provided m edical records revealing her actual m edical expenses and, at the sam e tim e, refused to stipulate to dam ages, it only then becam e clear an d unequivocal that Plaintiff’s alleged dam ages exceed $ 75,0 0 0 . 44 The Court agrees. On March 15, 20 16, it becam e clear and unequivocal that Plaintiff’s alleged dam ages exceed $ 75,0 0 0 , in light of (1) the actual cost of Plaintiff’s surgery, which was greater than the initial cost estim ate; 45 (2) Plaintiff’s dam ages claim s for past, present, and future pain and suffering, wage loss, m edical expenses, and 41 See, e.g., Darensburg, 20 14 WL 40 72128, at *4 (“[T]he February 17, 20 14, em ail, which revealed accrued expen ses of less than $ 12,0 0 0 and suggested that those expenses would increase over tim e, did not unequivocally show that the am ount in controversy requirem ent was m et.”); Muse, 20 11 WL 50 25326, at *3 (finding surgery recom m endation and m edical expenses totalin g $ 8 ,152.44 were insufficient to trigger the 30 -day rem oval window); Stovall v. California Cas. Indem . Exch., No. 11-8 3, 20 11 WL 765822, at *3 (E.D. La. Feb. 24, 20 11) (findin g im precise estim ates of surgery costs, along with claim s for general dam ages, penalties, and attorney’s fees, insufficient to establish that the am ount-in-controversy requirem ent was satisfied). 42 R. Doc. 19-3 at 1– 3. 43 R. Doc. 19-2 at 1. 44 R. Doc. 19 at 7. 45 See, e.g., Muse, 20 11 WL 50 25326, at *1 (“On May 27, 20 11, Defendant received Dr. Wyatt’s surgical recom m endation and estim ate of surgical costs, which totaled over $ 29,0 0 0 . The projected surgical costs, com bined with Plaintiff’s request for ‘past and future wage loss, past and future m edical costs, as well as hedonic and gen eral dam ages’ was sufficient to m eet the jurisdictional m inim um .”). 8 disability; 46 and (3) Plaintiff’s refusal to stipulate that her dam ages did not exceed $ 75,0 0 0 . 47 Because the Defendant rem oved this m atter to federal court on March 31, 20 16, within 30 days of March 15, rem oval was tim ely, pursuant to 28 U.S.C. § 1446(b)(3). The m otion to rem and m ust be denied. CON CLU SION For the foregoing reasons, IT IS ORD ERED that Plaintiff’s m otion to dism iss the petition for rem oval be and hereby is D EN IED . 48 IT IS FU RTH ER ORD ERED that Plaintiff’s m otion to rem and this action to state court be and hereby is D EN IED . 49 N e w Orle a n s , Lo u is ian a, th is 13 th d ay o f May, 2 0 16 . ______________ _______ ________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 46 See supra note 44. “A refusal to stipulate to the am ount of dam ages is a factor in determ inin g the am ount in controversy.” Penn v. Hom e Depot U.S.A., Inc., No. H-13-30 83, 20 13 WL 6859119, at *3 (S.D. Tex. Dec. 30 , 20 13) (citing Johnson v. Dillard Dep’t Stores, Inc., 836 F. Supp. 390 , 394 (N.D. Tex. 1993)). See also, e.g., Lopez v. Esparaza, No. 2:14-cv-2231, 20 14 WL 50 25941, at *3 (W.D. La. Oct. 8 , 20 14) (“Plaintiff’s affirm ative act of am endin g the petition to state that his claim exceeded $ 50 ,0 0 0 together with the fact that plaintiff’s chiropractor recom m ended future treatm ent and that plaintiff refused to stipulate that his dam ages did not exceed $ 75,0 0 0 are sufficient to satisfy the unequivocally clear and certain standard.”). 48 R. Doc. 13. 49 R. Doc. 10 . 47 9
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