PATRICK J. HANNA, Magistrate Judge.
Currently pending before this Court is the plaintiff's motion to remand. (Rec. Doc. 11). Oral argument was held on August 20, 2013, and the motion was taken under advisement. For the reasons assigned at the hearing, the undersigned ordered the plaintiff to supplement the record with copies of the documents sent to the defendants by e-mail on March 15, 2013 and March 18, 2013. (Rec. Doc. 27). The plaintiff complied with the order. (Rec. Doc. 28). After review of the pleadings, the relevant jurisprudence, the applicable law, and the arguments advanced by counsel at the hearing on the motion, and for the reasons explained below, the motion to remand is granted.
This lawsuit arises out of a motor vehicle accident. On October 26, 2011, Red Lawrence was driving his vehicle in Acadia Parish. Chester Credeur was a passenger in Lawrence's vehicle. Kevin Carty, a tourist from Ireland, who was driving a rental car, allegedly made a left turn and struck Lawrence's vehicle. Credeur claims to have been injured in the accident.
Credeur's original petition was filed in the 15th Judicial District Court, Acadia Parish, Louisiana, in October 2012. Credeur sued Carty (who has since been dismissed from the suit); Dollar Rent a Car Systems, Inc. d/b/a Dollar Operations, Inc. d/b/a DTG Operations, Inc., which was alleged to be the owner of the vehicle that Carty was driving at the time of the accident; York Claim Service, which was alleged to be the insurer of Carty's vehicle; and Progressive Casualty Insurance Company, which was alleged to provide uninsured/underinsured motorist insurance.
Credeur's petition does not demand a specific amount of damages nor does it contain a statement complying with Louisiana Code of Civil Procedure Article 893, which requires a general allegation if there is a lack of federal-court jurisdiction due to insufficient damages. It does, however, allege that Credeur sustained damages for past, present, and future mental and physical pain and suffering; loss of enjoyment of life; past and future lost wages; lost earning capacity; past, present, and future medical expenses; loss of insurability; inconvenience; and other unspecified damages. Despite this lengthy list of claimed damages, it is not facially apparent from the allegations of the petition that the claimed damages exceed $75,000.
On March 15, 2013, defense counsel e-mailed the plaintiff's counsel and asked, "More than 50k? 75k?"
On March 18, 2013, the plaintiff's counsel followed up the March 15 e-mail by providing to defense counsel, again via e-mail, copies of "the medical bills in our possession at this time relative to Chester Credeur" and "the medical records in our possession at this time relative to Chester Credeur."
On April 18, 2013, defendants York Risk Services Group, Inc. (formerly known as York Claims Service, Inc.) and Rental Car Finance Corp. (improperly named in the petition as DTG Operations, Inc. formerly known as Dollar Rent a Car Systems, Inc./Dollar Operations, Inc.), filed an answer and exception of vagueness in the state-court proceeding, arguing that the petition was impermissibly vague because "the defendant is unable to ascertain whether a jury trial can be demanded and whether this matter can be removed to federal court."
On an unknown date, alleged by the removing defendants to be April 18, 2013, the removing defendants propounded "a pre-answer interrogatory," which actually seems to be more in the nature of a request for admission, reading: "Plaintiff's damages will not exceed the sum of $75,000.00."
The interrogatory went unanswered. However, on May 1, 2013, the plaintiff's counsel faxed a letter to defense counsel, in which he stated: "Please allow this correspondence to serve as confirmation that Chester Credeur's amount of damages far exceed $50,000.00."
On May 8, 2013, the plaintiff formally answered the interrogatory (although the certificate of service was erroneously dated March 8), and the plaintiff's counsel faxed the response to the defendants' counsel.
On May 17, 2013, Progressive was dismissed from the state-court action.
The record contains no evidence that the hearing on the vagueness exception was held.
On June 5, 2013, York Risk Services Group, Inc. and Rental Car Finance Corp. (hereinafter referred to as "the removing defendants") removed the action to this forum, within thirty days after the plaintiff responded to the interrogatory but more than thirty days after the e-mail correspondence of March 15, the correspondence with attachments on March 18 and the fax correspondence of May 1.
On July 2, 2013, the plaintiff filed a motion to remand (Rec. Doc. 1), arguing that the removal was untimely because the defendants knew when they received the e-mail on March 15 that the amount in controversy exceeded $75,000.00. The plaintiff contends that the removing defendants should have removed the case not later than thirty days after March 15. Despite the fact the removing defendants learned nothing new from the interrogatory response that they did not already know since receiving the e-mail on March 15 and the invoices and records on March 18, they nonetheless contend that they could not ascertain that the amount in controversy exceeded the statutory threshold until they received the plaintiff's response to their interrogatory on May 8. The removing defendants therefore contend that removal within thirty days of May 8 was timely. The issue now before this Court is which of the two potential "other papers" started the thirty-day removal clock ticking — the emails and attachments of March 15 and 18 or the discovery response of May 8.
The timing of removal is governed by 28 U.S.C. § 1446(b). Section 1446(b)(1) states:
Section 1446(b)(3) states:
Section 1446(c) sets a one-year limit on removal. Additionally, Section 1446(c)(3)(A) states:
Prior to the revision of Section 1446 effective December 7, 2012, the text that now appears in Section 1446(b)(1) was the first paragraph of Section 1446(b) (with certain minor revisions), while the text that now appears in Section 1446(b)(3) was a part of the second paragraph of Section 1446(b). Therefore, the jurisprudence predating December 7, 2012 and referring to the first and second paragraphs of Section 1446(b) now pertains to Section 1446(b)(1) and (3), respectively. As the Fifth Circuit has noted, "[t]he statute [the second paragraph of Section 1446(b)] as amended is textually identical; only paragraph lettering was changed."
"The first paragraph [of Section 1446(b) — now Section 1446(b)(1)] governs notices of removal based on an `initial pleading setting forth the claim for relief upon which such action or proceeding is based.'"
Therefore, "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 Section 1446(b)(3)]."
In this case, the original petition does not include a specific monetary demand; thus, it does not "affirmatively reveal[] on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court."
The removing defendants argue that Credeur's failure to include a specific jurisdictional allegation in his petition made it impossible for them to determine whether the lawsuit was removable until they received the response to their interrogatory on May 8. But the plaintiff's failure to include the statutorily-required allegation in his petition does not resolve the issue of the timeliness of the removal.
Louisiana Code of Civil Procedure Article 893(A)(1) states that no specific amount of monetary damages shall be included in a plaintiff's petition. Therefore, Credeur was prohibited from requesting a specific amount of damages when he initiated this lawsuit. The same statute also states, however, that "if a specific amount of damages is necessary to establish . . . the lack of jurisdiction of federal courts due to insufficiency of damages, . . . a general allegation that the claim exceeds or is less than the requisite amount is required." No such general allegation was set forth in Credeur's petition.
The fact that Credeur did not include such a jurisdictional allegation in his petition supports a finding that the jurisdictional amount is satisfied and must be considered in the light of other relevant evidence.
In this case, however, the plaintiff and the removing defendants all agree that the plaintiff is seeking to recover an amount in excess of the federal-court jurisdictional threshold. The question is not whether the amount in controversy exceeds the statutory minimum but when the defendants knew, with certainty, that this was true. The plaintiff's omission of the Article 893 allegation is not determinative of the amount in controversy, nor does it resolve whether the March 15 and 18 e-mails or the May 8 discovery response is an "other paper" that started the thirty-day removal clock ticking.
The removing defendants argue that an e-mail from the plaintiff's counsel cannot constitute an "other paper." There is no statutory or jurisprudential support for that conclusion. 28 U.S.C. § 1446(b)(3) expressly includes amended pleadings, motions, and orders in the list of items that may constitute "other paper" but does not limit "other paper" to only those three items. 28 U.S.C. § 1446(c)(3)(A) expressly recognizes that information found in the record of the state-court proceeding and discovery responses may be "other paper." Again, however, "other paper" is not limited to those listed items.
A deposition transcript may be other paper.
The removing defendants primarily rely on two cases for their argument that an e-mail cannot be "other paper." In Hiles v. Wal-Mart Stores East, LP,
In Styron v. State Farm Fire & Casualty, Co.,
The e-mails in Hiles and Styron are very different from the e-mails at issue in this case, which set forth the basis for the plaintiff's contention that the amount in controversy exceeded the jurisdictional threshold not only in the correspondence itself, but with the documents attached to back up that contention. While the use of discovery might be the preferred method for ascertaining the amount in controversy when it is not apparent from the face of the plaintiff's petition,
The removing defendants argue that the e-mail correspondence of March 15 and March 18 is not an "other paper" because it contains nothing more than the subjective analysis of the plaintiff's counsel. No statutory or jurisprudential support for that contention has been located. What the jurisprudence does say is that a writing setting forth the defendant's subjective knowledge cannot convert a case into a removable action.
Additionally, in this case, the information set forth in the March 15 and March 18 e-mails was not merely the subjective knowledge of the plaintiff's counsel. On March 15, the plaintiff's counsel responded to an e-mail from the removing defendants' counsel and stated that the plaintiff's claimed damages exceed $75,000. In the same responsive e-mail, the plaintiff's counsel then went on to explain why. He stated that medical expenses were approximately $50,000; that the cost of a recommended shoulder surgery would be approximately $32,000 not including postsurgical physical therapy; and that if lower back injections were successful, decompression surgery costing $40,000 to $50,000 would likely take place. The plaintiff's counsel followed up this e-mail with further e-mail correspondence on March 18, attaching copies of various documents supporting what was said in the first.
The plaintiff's answer to the removing defendants' interrogatory was not substantially different. It stated that the plaintiff's medical costs totalled $51,601.68, stated that rotator cuff and low back surgery had been recommended, and set forth the anticipated costs for those procedures: $45,000 to $50,000 for the back surgery; and a total of $32,858 for the shoulder surgery plus an additional cost for post-surgery physical therapy. In other words, the removing defendants did not learn anything new from the answer to the interrogatory that they did not already know about from the earlier e-mail correspondence.
Accordingly, the undersigned finds that the e-mail correspondence and attachments of March 15 and 18 constituted an "other paper" that triggered the thirty-day removal period. The first e-mail was an affirmative act by the plaintiff's counsel that clearly stated that the amount in controversy exceeded both $50,000 and $75,000, thus exceeding the damages necessary for a jury trial in state court and exceeding the amount necessary for federal-court jurisdiction in the event that the defendants chose to remove the case. The plaintiff's counsel did not just respond to the question posed by the defendants' counsel. He voluntarily undertook to, first, explain the basis for his answer and, second, provide objective support for his answer. Three days after the first e-mail, the plaintiff's counsel e-mailed copies of medical records and copies of medical bills supporting his response. If nothing else, these documents demonstrated that the first e-mail had a legitimate basis and was not a sham. Taken together, the e-mail correspondence and attachments of March 15 and 18 from the plaintiff's counsel to the defendants' counsel was sufficient to satisfy the unequivocally clear and certain standard that the Fifth Circuit requires be met in evaluating the content of purported "other paper."
Accordingly, the defendants had thirty days from March 18, 2013 in which to remove the action to federal court. The defendants did not remove the action until June 5, 2013. This was more than thirty days after March 15 and more than thirty days after March 18. Accordingly, the undersigned finds that the removal notice was untimely and, for that reason, the plaintiff's motion will be granted and this action will be remanded to the state court where it commenced.
For the foregoing reasons, the plaintiff's motion to remand (Rec. Doc. 11) is GRANTED.