Opinion
CIVIL ACTION NO. 03-0527, SECTION `T'(1).
May 23, 2003.
Before the Court is a Motion to Remand [Doc. 4], filed by the Plaintiff, Jesse Ambrose.
I. BACKGROUND:
The plaintiff Ambrose was involved in a motor vehicle accident on or about July 30, 2001, with defendant driver Taylor, an alleged employee of Raider Express, Inc. The plaintiff filed suit against Taylor, Raider Express, and the plaintiffs uninsured motorist(UM) provider, National Automotive Insurance Co., in Orleans Parish of Louisiana, alleging the accident was caused by the negligence of the driver Taylor. Defendant, Raider Express, filed notice of removal to federal court based upon diversity of citizenship jurisdiction, and that the amount in controversy exceeded the federal jurisdictional amount of $75,000. Plaintiff subsequently filed a motion to remand the case back to the Civil District Court for Orleans Parish. The plaintiff Ambrose is a citizen of the State of Louisiana, and the defendant Taylor is a citizen of Texas. Raider Express is a Texas corporation, and its insurance carrier, State and County Mutual Fire Insurance Co., is foreign company as well. National Automotive Insurance Co. is a domestic company of Louisiana. Plaintiff asserts that defendant Nat'l Automotive Co. destroys diversity jurisdiction as a Louisiana company, and that the case should be remanded. Defendant Raider Express argues that Nat'l Auto does not destroy diversity jurisdiction because the defendant UM provider is a nominal party and may therefore be disregarded in determining diversity jurisdiction.
II LAW AND ANALYSIS:
A. The Law on Removal and Remand:
Pursuant to 28 U.S.C. § 1441, any civil action maybe removed from state court to federal court if it is proven that the federal court has original jurisdiction. See 28 U.S.C. § 1441. In the instant action, the defendant claims that removal to federal court is proper based upon 28 U.S.C. § 1332, diversity of citizenship. In removal actions, the removing party bears the burden of establishing that federal jurisdiction exists. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995), cert. denied, 516 U.S. 865, 116 S.Ct. 180, L.Ed.2d 119 (1995). In order to do so under 28 U.S.C. § 1332, the removing party must prove that complete diversity of citizenship exists between the parties and that the amount in controversy exceeds $75,000, exclusive of attorney fees and costs. See 28 U.S.C. § 1332.
The plaintiff, in his state court Petition for Damages, does not seek to recover a specific monetary sum; rather, he merely prays for judgment in his favor, as is required by Louisiana law. See LA. Code Civ. Proc. Ann. art. 893(A)(1). In such a situation, "the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds [the jurisdictional amount.]" De Aguilar, 47 F.3d at 1409 (quoting De Aguilar v. Boeing Co. ("De Aguilar I"), 11 F.3d 55, 58 (5th Cir. 1993)). A removing defendant can make such a showing in one of two ways. See Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). First, a defendant may demonstrate that it is "facially apparent" that the Plaintiffs claims are likely above the $75,000 jurisdictional limit. See id. Second, a defendant may set forth the facts in controversy that support a finding of the requisite jurisdictional amount. See id. This requires a defendant to submit "summary judgment type evidence" to support the claim that the actual amount in controversy exceeds the jurisdictional limit. See De Aguilar, 47 F.3d at 1412.
In Associacion Nacional de Pescadores a Pequena Escala o Artesanales de Columbia ("ANPAC") v. Dow Quimica de Colombia S.A., the Court of Appeals for the Fifth Circuit specifically identified three circumstances in which a removing party will fail to satisfy its burden of proving that removal is warranted. See ANPAC, 988 F.2d 559, 566 (5th Cir. 1993), abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998), rev'd on other grounds, 199 S.Ct. 1563 (1999). The Fifth Circuit explained that:
[a]t least where the following circumstances are present, the [removing party's] burden has not been met: (1) the complaint did not specify an amount of damages, and it was not otherwise facially apparent that the damages sought or incurred were likely above [$75,000]; (2) the defendants offered only a conclusory statement in their notice of removal that was not based on direct knowledge about the plaintiffs' claims; and (3) the plaintiffs timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present. Id.
If such is the case, then removal is improper. However, it is important to note that "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
B. Nominal Party
The Fifth Circuit has held that in cases based on diversity jurisdiction and federal question jurisdiction alike, nominal defendants need not join in removal. Farias v. Bexar County Board of Trustees, 925 F.2d 866, 872 (5th Cir. 1991). A nominal party is "neither necessary nor indispensable to join in the action," and "the bottom line concern in determining a nominal party is whether the plaintiff can establish a cause of action against the nonremoving defendant in state court." Id. (citing Tri-Cities Newspapers, Inc., 427 F.2d 325, 327 (5th Cir. 1970)). In making such a determination, courts may pierce the pleadings and, even though the petition may state a claim against the nonremoving defendant, the case may be removed if the defendants show by evidence outside the pleadings that there is no reasonable basis to predict that plaintiffs could establish a claim against the nominal defendant. Badon v. R JR Nabisco, Inc., 224 F.3d 382, 389 (5th Cir.) (Badon I), op. after certified question declined, 236 F.3d 282, 286 (5th Cir. 2000) (Badon II); see also B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). In so doing, courts may examine "summary judgment type evidence." Badon, 224 F.3d at 389, n. 10. Nevertheless, the Court must consider all of the factual allegations in the light most favorable to plaintiffs and resolve all of the contested issues of fact in favor of plaintiffs. See Burden v. General Dynamics, 60 F.3d 213, 217 (5th Cir. 1995). Furthermore, the Court must resolve any uncertainties as to the current state of controlling substantive law in favor of plaintiffs. B., Inc., 663 F.2d at 549. Thus, defendants must show, as a matter of law, that "there is no reasonable basis for predicting that the plaintiff[s] might establish liability on [their] claim against [State Farm]." Badon I, 224 F.3d at 390. See also Burden, 60 F.3d at 216 (District courts "do not determine whether the plaintiff will actually or even probably prevail on the merits of the claim, but look only for a possibility that the plaintiff might do so.").
C. The Court's Analysis
In the present case, defendant UM provider National Automotive Insurance Co. is a nominal party and therefore does not conflict with defendant Raider Express' removal based on diversity jurisdiction. National Automotive is not an indispensable party to the action. "Uninsured motorist coverage is intended to protect the insured at all times against the generalized risk of damages at the hands of uninsured motorists." Jones v. Henry, 542 So.2d 507, 508 (La. 1989). However, the defendant in this case is insured. The $10,000 coverage amount of the UM provider would only become part of the settlement if the entire $1,000,000 policy coverage of Raider Express' insurer were awarded to the plaintiff. Taken together with this $1,000,000 coverage policy, any possible damage award to the plaintiff from the UM provider would be less than 1% of the possible damages awarded the plaintiff. Such an amount is clearly nominal. Furthermore, although the monetary sum of damages sought need not have been pleaded according to LA. Code Civ. Proc. Ann. art. 893(A)(1), it does not appear to be "facially apparent" that damages sought would exceed the $1,000,000 policy of Raider Express in this current cause of action and require those damages in excess of $1,000,000 to be sought from the defendant National Automotive. This leads the court to the conclusion that there is no reasonable basis to predict that plaintiffs could establish a claim against the nominal defendant.
Accordingly,
IT IS ORDERED that the Motion to Remand of the Plaintiff, Jesse S. Ambrose is hereby DENIED.