Baham v. Landstar Inway Inc ( 2020 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA DINNIKA BAHAM CIVIL ACTION VERSUS NO. 19-13271 LANDSTAR INWAY, INC., ET AL. SECTION “R” (4) ORDER AND REASONS The Court has received plaintiff Dinnika Baham’s motion to remand.1 Because plaintiff has stipulated that her damages do not exceed $75,000, the Court grants the motion. This case arises from a motor vehicle accident.2 The suit was originally filed in Louisiana state court,3 and then removed to this Court on the basis of diversity jurisdiction.4 For diversity jurisdiction to exist, there must be complete diversity between plaintiffs and defendants, and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). This amount in controversy is “exclusive of interest and costs,” 28 U.S.C. § 1332(a), but can 1 R. Doc. 11. 2 See R. Doc. 1-1 at 1 ¶ II. 3 See R. Doc. 1-1. 4 See R. Doc. 1 at 3 ¶ II. include attorney’s fees “when the state statute allowing cost shifting expressly defines the allowable expenses of litigation to include attorney’s fees.” Grant v. Chevron Phillips Chem. Co., 309 F.3d 864, 874 (5th Cir. 2002) (citation omitted). Given this amount-in-controversy requirement, a plaintiff can prevent removal by establishing with legal certainty that the claims are for less than $75,000 by, for instance, “fil[ing] a binding stipulation or affidavit.” See De Aguilar v. Boeing Co., 47 F.3d 1404, 1411-12 (5th Cir. 1995) (quoting In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992)). “[P]ost-removal affidavits may be considered in determining the amount in controversy at the time of removal . . . if the basis for jurisdiction is ambiguous at the time of removal.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). Here, the amount in controversy at the time of removal was uncertain, as, pursuant to Louisiana procedural requirements, plaintiff did not plead a sum certain of damages. See La. Code Civ. P. art. 893(A)(1). Now, plaintiff has filed a stipulation that “her damages do not exceed $75,000.00, exclusive of costs and fees, and is therefore precluded from recovering over that amount.”5 Plaintiff’s complaint relies on claims of negligence and 5 R. Doc. 13. respondeat superior,® and does not reference a state statute that would allow shifting of fees. See Ard v. Kraft, Inc., 540 So. 2d 1172, 1178 (La. App. 1 Cir. 1989) (“[I]n negligence concepts . . . attorney fees are not permitted.” (quoting Walker v. Maybelline Co., 477 So.2d 1136, 1141 (La. App. 1 Cir. 1985) (Crain, J., concurring))). Furthermore, defendants state that they “do not object to Plaintiffs Motion to Remand provided Plaintiff executes an irrevocable stipulation that her damages do not exceed $75,000, exclusive of costs and fees, and is, therefore, precluded from recovering over that amount.”” Plaintiffs stipulation uses this exact language. The Court therefore finds remand appropriate. For the foregoing reasons, the Court GRANTS plaintiffs motion to remand the case state court. New Orleans, Louisiana, this __2nd__ day of March, 2020. ern Varea_ SARAH S. VANCE UNITED STATES DISTRICT JUDGE 6 See R. Doc. 1-1 at 2-3 IV IV, VI-VIL. 7 R. Doc. 12 at 1.