Savone et al v. James River Insurance Company, No. 2:2019cv10902 - Document 21 (E.D. La. 2019)

Court Description: ORDER AND REASONS - Plaintiffs' 11 Motion to Remand is DENIED. Defendant's 19 request for oral argument is DENIED AS MOOT. Signed by Judge Susie Morgan. (bwn)
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Savone et al v. James River Insurance Company Doc. 21 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A GLAD YS SAVON E, e t al Plain tiff CIVIL ACTION VERSU S N O. 19 -10 9 0 2 J AMES RIVER IN SU RAN CE COMPAN Y, D e fe n d an t SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court is a Motion to Rem and filed by Plaintiffs Gladys Savone and Susanne Walls. 1 Defendant J am es River Insurance Com pany opposes this m otion. 2 Defendant requests oral argum ent on Plaintiffs’ Motion to Rem and. 3 For the reasons that follow, Plaintiffs’ Motion to Rem and is D EN IED . Accordingly, Defendant’s request for oral argum ent is D EN IED AS MOOT. BACKGROU N D As set forth in Plaintiffs’ petition, on J anuary 27, 20 18, a vehicle owned and operated by Alexa Altam ura struck the rear of a vehicle owned and operated by Ralph Wilson, which in turn struck the rear of a vehicle owned and operated by Gladys Savone. 4 Susanne Walls was a passenger in Savone’s car. 5 Plaintiffs suffered injuries as a result of the vehicle accident. 6 Plaintiffs allege the accident was caused by Altam ura’s negligence, 7 but Altam ura is underinsured. 8 On Decem ber 20 , 20 18, Plaintiffs brought this action 1 R. Doc. 11. R. Doc. 18 . 3 R. Doc. 19. 4 R. Doc. 1-3 at III. 5 Id. 6 Id. at V. 7 Id. at IV. 8 Id. at VI. 2 1 Dockets.Justia.com against Defendant J am es River Insurance Com pany, which allegedly provided a policy of underinsured m otorist coverage on the vehicle owned and operated by Savone. 9 According to Plaintiffs’ petition, Plaintiffs seek to recover for: [P]ast physical pain and suffering, future physical pain and suffering, past m ental pain and suffering, future m ental pain and suffering, past, present, and future m edical expenses, rental expenses, property dam age, loss of use and/ or depreciation of vehicle, loss of past and future earnings, loss of future earning capacity, perm anent disability of the body, past and future loss of enjoym ent of life, loss of consortium, and penalties and attorneys’ fees[.] 10 Before the com m encem ent of this litigation, on Decem ber 10 , 20 18, Savone sent a settlem ent dem and to Defendant. 11 The settlem ent dem and represents Savone’s m edical expen ses totaled $ 9,868.0 0 . 12 After filing suit, Defendant propounded interrogatories to Savone to determ ine whether the am ount in controversy exceeded $ 75,0 0 0 , and Savone provided answers on April 3, 20 19. 13 Defendant’s interrogatory no. 11 requests: “Please state, in accordance with La. C.C.P. Art. 893, whether the am ount in controversy exceeds $ 75,0 0 0 .”14 Plaintiffs’ answer to no. 11 states: Plaintiff objects to this Interrogatory because it is prem ature in that the investigation and discovery in this regard are incom plete and ongoin g. Additionally, Plaintiff objects to this Interrogatory because it is vague, overly broad and unduly burdensom e. Subject to these objections and without waving sam e, Plaintiff responds as follows: Plaintiff seeks all special dam ages described in the m edicals subm itted, along with any property dam age or wages subm itted. General dam ages an d pain and suffering dam ages are not susceptible of ready m athem atical calculation and thus an am ount of general dam ages claim ed is outside the 9 Id. Id. 11 R. Doc. 11-2. 12 Id. 13 R. Doc. 11-5. 14 Id. at 9. 10 2 scope of discovery. Plaintiff reserves the right to supplem ent and/ or am en d this answer should additional inform ation becom e available. 15 Defendant’s interrogatory no. 10 requests: “[p]lease give an item ized list of all expenses incurred as a result of the accident which is the subject of this lawsuit, including, but not lim ited to, m edical expenses.”16 Plaintiffs’ answer to No. 10 states, in relevant part: “[t]o date, Plaintiffs’ special dam ages include, but are not lim ited to . . . Total $ 12,565.62.”17 On April 4, 20 19, Savone sent Defendant a second settlem ent dem and for $ 20 0 ,0 0 0 . 18 The settlem ent dem and referen ces Savone’s past m edical expenses totaling $ 11,595.62 and her future m edical expenses totaling $ 375.0 0 . 19 On May 13, 20 19, Plaintiffs sent Defendant m edical records reflecting Savone had received a surgical recom m en dation. 20 On May 20 , 20 19 and May 21, 20 19, Plaintiffs sent Defendant estim ates of Savone’s surgical costs, which exceed $ 130 ,0 0 0 . 21 Defendant rem oved this m atter to the U.S. District Court for the Eastern District of Louisiana on J une 5, 20 19. 22 Plaintiffs argue Defendant’s rem oval was untim ely because Defendant did not rem ove the case within thirty days of the petition being served. 23 Specifically, Plaintiffs argue, “[b]ased on the allegations in the Petition and the m edical records received by J am es River Insurance Com pany along with the dem and package sent prior to filing the Petition for Dam ages” it was facially apparent that the m atter in controversy exceeded $ 75,0 0 0 when the petition was served on Decem ber 20 , 20 18. 24 Plaintiffs argue in the 15 Id. at 9-10 . Id. at 9. 17 Id. 18 R. Doc. 11-6. 19 Id. at 1. 20 R. Doc. 18 -4 at 1-3. 21 Id. at 4-8. 22 R. Doc. 1. 23 R. Doc. 11-1 at 5. 24 Id. 16 3 alternative: “based off of Gladys Savone’s discovery responses and subsequent dem an d package, it was facially apparent by no later than April 4, 20 19 that the action was rem ovable.”25 Defendant argues it did not becom e facially apparent that the am ount in controversy exceeds $ 75,0 0 0 until Defendant received Savone’s m edical records on May 20 , 20 19 and May 21, 20 19, and Defendant tim ely rem oved the lawsuit within thirty days of receiving this inform ation. 26 LAW AN D AN ALYSIS Federal district courts have subject m atter jurisdiction under 28 U.S.C. § 1332 when diversity of citizenship exists and “the m atter in controversy exceeds the sum or value of $ 75,0 0 0 , exclusive of interests and costs.”27 A party m ay rem ove an action from state court to federal court if the action is one over which the federal court possesses subject m atter jurisdiction. 28 As applicable to cases alleging federal subject m atter jurisdiction under § 1332, 28 U.S.C. § 1446(b) requires defen dants rem ove such cases within thirty days after the receipt by the defendant of a copy of the initial pleading from which it is “unequivocally clear and certain” that diversity of citizenship exists and the am ount in controversy requirem ent is satisfied. 29 If it is not “unequivocally clear and certain” from the initial pleading that diversity of citizenship exists or the am ount in controversy requirem ent is satisfied, the defendant m ay file a notice of rem oval within thirty days after receipt by the defendant of a copy of “an am ended pleading, m otion, 25 Id. R. Doc. 18 at 5. 27 28 U.S.C. § 1332. 28 Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720 , 723 (5th Cir.20 0 2) (citation om itted). 29 28 U.S.C. § 1446(b); Bosky v. Kroger Texas, LP, 28 8 F.3d 20 8, 210 (5th Cir. 20 0 2) (stating that the thirty day tim e lim it is triggered when the “pleadin g affirm atively reveals on its face that the plaintiff is seeking dam ages in excess of the m inim um jurisdictional am ount of the federal court.”) (footnote om itted). 26 4 order or other paper” from which it m ay first be ascertain ed that diversity of citizenship exists and the am ount in controversy requirem ent is satisfied. 30 If rem oval is untim ely, a case m ust be rem anded to state court. 31 The Decem ber 10 , 20 18 settlem ent dem and did not trigger the thirty day period for rem oval. In Chapm an v. Pow erm atic, Inc., the Fifth Circuit expressly rejected the contention that a pre-suit dem and letter can constitute “other paper” for purposes of § 1446(b), even if the pre-suit dem and letter estim ates dam ages in excess of $ 75,0 0 0 . 32 The Fifth Circuit explain ed: The plain language of the second paragraph of § 1446(b) requires that if an “other paper” is to start the thirty-day tim e period, a defendant m ust receive the “other paper” after receiving the initial pleading. 33 The thirty day period was not triggered in this case upon Plaintiffs’ filing of their initial pleading because it was not facially apparent from the petition that the am ount in controversy exceeded $ 75,0 0 0 . 34 As of April 3, 20 19, when Defendant received Plaintiffs’ discovery responses, Plaintiffs’ known m edical expenses totaled $ 12,562.62. 35 Moreover, Plaintiffs did not provide an affirm ative answer to interrogatory no. 11—which asked whether the am ount in controversy exceeds $ 75,0 0 0 . 36 On April 4, 20 19, Plaintiffs sent a second dem and for $ 20 0 ,0 0 0 . 37 However, in the second dem and letter, Plaintiffs item ized only past an d 30 28 U.S.C. § 1446(b)(3). v. Globe Life and Accident Ins. Co., 230 F.3d 759, 760 (5th Cir. 20 0 0 ). 32 Chapm an v. Pow erm atic, Inc., 969 F.2d 160 , 164 (5th Cir. 1992). 33 Id. 34 See Bosky , 28 8 F.3d at 210 ; see also R. Doc. 1-3. 35 R. Doc. 11-5 at 9. 36 See id. at 9-10 . 37 R. Doc. 11-6. 31 Addo 5 future m edical expenses totaling less than $ 12,0 0 0 , and did not provide inform ation substantiating any other dam ages. 38 On May 13, 20 19, Plaintiffs sent Defendant m edical records indicating Savone had received a surgical recom m endation. 39 These records did not indicate the estim ated costs of the recom m ended surgical procedures. It did not becom e “unequivocally clear and certain” that the m atter in controversy exceeded $ 75,0 0 0 until May 21, 20 19, when Defendant received the second of two sets of m edical records which, collectively, estim ated Savone’s surgical costs to exceed $ 130 ,0 0 0 . 40 At this point, the thirty day period for rem oval was triggered. Because Defendant rem oved on J une 5, 20 19—fifteen days after the period for rem oval was triggered—Defendant tim ely rem oved. 41 CON CLU SION Plaintiffs’ Motion to Rem and 42 is D EN IED . Defendant’s request for oral argum ent 43 is D EN IED AS MOOT. N e w Orle an s , Lo u is ian a, th is 2 2 n d d ay o f Ju ly, 2 0 19 . ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 38 See id. R. Doc. 18 -4. 40 Id. 41 Even if the rem oval period was triggered by the m edical records sent on May 13, 20 19, Defendant’s rem oval was still tim ely. 42 R. Doc. 11. 43 R. Doc. 19. 39 6