United States District Court, E.D. North Carolina,

Western Division.

TOTAL QUALITY LOGISTICS, LLC, Plaintiff,

v.

FRYE TRUCKING, LLC, Defendant.

 

No. 5:13–CV–136–BO.

Feb. 3, 2014.

 

Bettie Kelley Sousa, Smith Debnam Narron Drake Saintsing & Myers, L.L.P., Raleigh, NC, for Plaintiff.

 

Amy C. Drayton, Dean & Gibson, PLLC, H.M. Whitesides, Jr., Charlotte, NC, for Defendant.

 

ORDER

TERRENCE W. BOYLE, District Judge.

*1 This matter is before the Court on defendant’s motion for summary judgment [DE 17]. The motion is now ripe for adjudication. For the reasons stated herein, the defendant’s motion for summary judgment is DENIED and summary judgment is GRANTED in favor of the plaintiff.

 

BACKGROUND

This matter arises from a dispute over the interstate delivery of fruit to plaintiff’s customer’s facility. Plaintiff sued defendant in state court in North Carolina, claiming defendant negligently transported the fruit. Defendant removed the case to this Court based on plaintiff’s claims that the damages exceeded $10,000 and the interstate nature of the delivery. Defendant filed a motion for summary judgment on October 15, 2013. On December 23, 2013, this Court filed an order which notified the parties that the Court was considering granting summary judgment in favor of the non-moving plaintiff [DE 31]. The order provided defendant ten days to file a brief objecting to a grant of summary judgment in favor of the plaintiff and provided plaintiff seven days after that to file a response brief.

 

Plaintiff hired defendant to transport fruit to plaintiff’s customer’s facility in Georgia. Defendant’s driver picked up the fruit in New Jersey and Pennsylvania and transported the fruit to Georgia over a period of three days. The driver received bills of lading for the fruit when he picked them up and, after delivery, he received the three bills of lading after they were stamped as approved by the customer. Each bill of lading has a stamp and notation from the customer that shows all cases were received, no cases were damaged, no cases were rejected, and lists the pulp temperature of the fruit upon arrival. After the driver had left the customer’s premises, the customer noticed that the fruit was not in good condition and requested an inspection by the USDA. The USDA prepared three reports on March 2, 2012, the delivery date, which stated that the fruit was spoiled and evidenced decay and other issues. Plaintiff then unsuccessfully tried to salvage the shipment of fruit, but it was determined that the fruit was in too poor of a condition to salvage. Plaintiff filed a claim with defendant on March 13, 2012. Defendant’s insurance company denied an insurance claim filed for the lost fruit product and plaintiff filed this suit.

 

DISCUSSION

A motion for summary judgment cannot be granted unless there are no genuine issues of material fact for trial. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party must demonstrate the lack of genuine issue of fact for trial and if that burden is met, the party opposing the motion must “go beyond the pleadings” and come forward with evidence of a genuine factual dispute. Celotex, All U.S. at 324. The Court must view the facts and the inferences drawn from the facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). Conclusory allegations are insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.”) (emphasis in original).

 

*2 The parties agree that plaintiff’s claim is governed by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, et seq. The Carmack Amendment provides that a shipper’s prima facie case for recovery against a carrier is established by showing: (1) that goods were delivered to the carrier in good condition; (2) that the shipment arrived at its destination in damaged condition; and (3) the amount of actual losses. Mo. Pac. R.R. Co. v. Elmore & Stahl, 377 U.S. 134, 138 (1964). “[A] motor carrier is liable to the shipper for damage to the goods occurring during transport without regard to the motor carrier’s negligence.” Rush Indus., Ind. v. MWP Contractors, LLC, 2012 U.S. Dist. LEXIS 170758 *22 (M.D.N.C. Nov. 30, 2012).

 

Defendant previously conceded that plaintiff can satisfy the first element of a Carmack Amendment claim and only took issue with plaintiff’s ability to satisfy the second element.FN1 [DE 19 at 5]. Defendant relies exclusively on the following facts. The driver delivered the fruit and plaintiff’s customer stamped and signed the bills of lading after testing the temperature of the fruit and then returned the bills of lading to the defendant’s driver. Defendant argues that plaintiff’s customer provided clean bills of lading showing receipt of undamaged goods from defendant which defeats plaintiff’s claim that the goods arrived damaged. The Court disagrees.

 

FN1. After the Court provided notice to defendant that it was considering a grant of summary judgment in favor of the non-moving plaintiff, defendant claimed in its opposition briefing that plaintiff no longer met the first element of a Carmack Amendment claim on the grounds that clean bills of lading singed by the driver upon picking up the product are not sufficient to establish the delivery of goods in good condition.   Great Am. Ins. Co. v. USF Holland, Inc. 937 F.Supp.2d 376, 384 (S.D.N.Y.2013). However, here, even ignoring defendant’s prior concession, the Court finds that plaintiff has provided sufficient additional evidence to establish the initial contents and condition of the cargo through its sworn affidavit of Mr. Bostwick [DE 22] and the terms of the Broker/Carrier Agreement [DE 28 and 29] which unequivocally state that it was the carrier’s duty to take a pulp temperature reading prior to the loading of the product and to reject the product if the temperature varies by more than two degrees from the temperature listed on the rate confirmation [DE 23]. See USF Holland, 937 F.Supp.2d. at 384.

 

The circumstances presented in this case are largely analogous to those presented in Great Am. Ins. Co. v. USF Holland, Inc. 937 F. sup.2d 376 (S.D.N.Y.2013). There, as here, defendant carrier delivered goods and received clean bills of lading and then the recipient of the goods conducted a thorough inspection of the goods shortly after the delivery driver departed. The inspection revealed damaged goods that were unsalvageable. The court in USF Holland granted summary judgment in favor of plaintiffs because a “clean delivery receipt merely establishes a presumption of good condition and is subject to rebuttal by evidence of damage,” and the court found that the plaintiff proffered sufficient rebuttal evidence. Id. at 386. Here, plaintiff also offers sufficient rebuttal evidence to defeat the presumption. First plaintiff is armed with the USDA inspection reports [DE 26] that were requested an hour after defendant’s driver left the plaintiff’s customer’s facility. The USDA reports showed that all of the shipment failed to grade according to USDA standards, that the inspection was requested at 8:10 a.m., the inspections were initiated at the same time, and that the inspections were completed at 10:09 a.m. [DE 26]. Plaintiff further offers evidence of the likely cause of the damage to the fruit, the temperature tale for the load. A temperature tale is a device that records the temperature of the product during transportation. [DE 22 ¶ 14]. The temperature tale here reveals that during the transit period, the temperature was always above 39 degrees and fluctuated between 39 and 52 degrees and even reached 70 degrees. [DE 22 ¶ 16; DE 24]. The rate confirmation shows that the product was to be kept at a continuous temperature of 36 degrees. [DE 23]. “Given the evidence of shipment in good condition, evidence of inspection shortly after arrival in damaged condition is enough [to rebut the presumption].” USF Holland, 937 F.Supp.2d at 386. Further defendant has not disputed the temperature tale and offers no evidence that places its veracity in question. It is clear to this Court that plaintiff has successfully established that it meets the second element of its Carmack Amendment claim.

 

*3 Finally, the damages plaintiff suffered are undisputed and evidence of the amount has been offered. It has shown that the goods were not salvageable and that an insurance claim was denied. Plaintiff is therefore entitled to a finding of both liability and damages.

 

Accordingly, the Court grants summary judgment for plaintiff and awards plaintiff the amount of $11,925.00 plus prejudgment interest at the prime rate compounded quarterly from August 22, 2012 and the costs of this action against defendant Fyre Trucking, LLC.

 

CONCLUSION

For the foregoing reasons, the defendant’s motion for summary judgment is DENIED and summary judgment is GRANTED in favor of the plaintiff. Plaintiff is AWARDED the amount of $11,925.00 plus prejudgment interest at the prime rate compounded quarterly from August 22, 2012 and the costs of this action against defendant Fyre Trucking, LLC. Attorney’s fees are NOT AWARDED. The clerk is directed to enter judgment accordingly and to close the file.

United States District Court,

E.D. Louisiana.

Lisa BRYANT, et al.

v.

Jean T. ROSSER, et al.

 

Civil Action No. 13–6125.

Feb. 3, 2014.

 

Michael Dennis Riley, Kevin M. Riley, Michael Riley & Associates, New Orleans, LA, for Lisa Bryant, et al.

 

Timothy Gregory Schafer, Roy L. Schroeder, Schafer & Schafer, New Orleans, LA, for Jean T. Rosser, et al.

 

ORDER AND REASONS

SARAH S. VANCE, District Judge.

*1 Plaintiffs move the Court to remand this diversity case to state court, arguing that the amount in controversy does not exceed $75,000.FN1 Because defendants have not proved by a preponderance of the evidence that the jurisdictional threshold is satisfied, the Court GRANTS plaintiffs’ motion.

 

FN1. R. Doc. 16.

 

I. BACKGROUND

On September 6, 2013, Lisa Bryant, Kendrick Wells, and Shayneal Abdullah filed this lawsuit against Jean Rosser, G & P Trucking Company, and National Union Fire Insurance Company in Louisiana state court.FN2 The complaint alleges that Rosser, an employee of G & P, negligently changed lanes while driving on Elysian Fields Avenue and struck plaintiffs’ vehicle.FN3 Plaintiffs allege that the resulting accident caused them to suffer injuries requiring medical treatment.FN4 For example, Bryant allegedly suffered a herniated lumbar disc, an acute left trapezius strain, an acute left cervical strain, an acute left sternocleidomastoid muscle strain, an acute left anterior chest wall strain, and an acute left upper extremity strain.FN5 Plaintiffs allege that defendants are liable to them for the following items of damage: “[p]ast, present, and future medicine, drugs, hospitalization, medical care, pain and suffering, residual disabilities, lost wages, and loss of future earning capacity, mental anguish, emotional upset and distress.” FN6

 

FN2. See R. Doc. 1–1.

 

FN3. Id. at 1–2.

 

FN4. Id. at 2–3.

 

FN5. Id. at 2.

 

FN6. Id. at 3.

 

On October 11, 2013, defendants timely removed the matter to this Court on the basis of diversity jurisdiction.FN7 Plaintiffs now move to remand the case to state court, arguing that the amount in controversy does not exceed $75,000, as is required by the diversity jurisdiction statute, see 28 U.S.C. § 1332.FN8 Plaintiffs have attached to their motion a stipulation stating that no plaintiff has damages in excess of $75,000 and that no plaintiff will execute a judgment greater than $75,000.FN9

 

FN7. R. Doc. 1.

 

FN8. R. Doc. 16. There is no dispute that complete diversity exists among the parties.

 

FN9. R. Doc. 16–2.

 

II. LEGAL STANDARD

 

A. Removal

 

A defendant may generally remove a civil action filed in state court if the federal court has original jurisdiction over the action. See 28 U.S.C. § 1441(a). The removing party bears the burden of demonstrating that federal jurisdiction exists. See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995). “[T]he jurisdictional facts that support removal must be judged at the time of removal….” Id. In assessing whether removal was appropriate, the Court is guided by the principle, grounded in notions of comity and the recognition that federal courts are courts of limited jurisdiction, that “removal statute[s] should be strictly construed in favor of remand.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002). The Court must remand the case to state court “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c).

 

B. Amount in Controversy

Under Fifth Circuit law, a removing defendant’s burden of showing that the amount in controversy is sufficient to support federal jurisdiction differs depending on whether the plaintiff’s complaint alleges a specific amount of monetary damages. See Allen, 63 F.3d at 1335. When the plaintiff alleges a damage figure in excess of the required amount in controversy, “that amount controls if made in good faith.” Id. (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). If the plaintiff pleads damages less than the jurisdictional amount, this figure will also generally control, thereby barring removal. Id. “Thus, in the typical diversity case, the plaintiff remains the master of his complaint.” Id.

 

*2 Yet Louisiana law ordinarily does not allow a plaintiff to plead a specific amount of damages. See La.Code Civ. P. art. 893; Manguno, 276 F.3d at 723. A plaintiff is, however, permitted to make “a general allegation that the claim exceeds or is less than” a particular amount if making such an allegation is necessary to establish the lack of jurisdiction of federal courts due to insufficiency of damages. La. Civ.Code. P. art. 893. When, as here, the plaintiff has alleged an indeterminate amount of damages, the Fifth Circuit requires the removing defendant to prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir.2000); see also De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir.1995). A defendant satisfies this burden either by showing that it is facially apparent that the plaintiff’s claims exceed the jurisdictional amount or by setting forth the facts in dispute supporting a finding that the jurisdictional amount is satisfied. Allen, 63 F.3d at 1335. “[W]here the district court is making the ‘facially apparent’ determination, the proper procedure is to look only at the face of the complaint and ask whether the amount in controversy was likely to exceed [$75,000].” Allen, 63 F.3d at 1336. If the “facially apparent” test is not met, the Court may consider summary-judgment type evidence relevant to the amount in controversy as of the time of removal. Id.

 

If the defendant meets its burden of showing the requisite amount in controversy, the plaintiff can defeat removal only by establishing with legal certainty that the claims are for less than $75,000. See De Aguilar, 47 F.3d at 1411–12. Absent a statute limiting recovery, “[l]itigants who want to prevent removal must file a binding stipulation or affidavit with their complaints; once a defendant has removed the case, … later filings [are] irrelevant.” Id. at 1412 (quoting In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir.1992)); see also id. at 1412 n. 10 (“The general principle is that plaintiffs will have to show that they are bound irrevocably by their state pleadings in these situations.”). Post-removal affidavits may be considered only if the amount in controversy is ambiguous at the time of removal, and then only for purpose of determining the amount in controversy as of the date of removal. See Gebbia, 233 F.3d at 883; Asociacion Nacional de Pescadores v. Dow Quimica de Colombia (ANPAC), S.A., 988 F.2d 559, 565 (5th Cir.1993) (if the affidavit “clarif[ies] a petition that previously left the jurisdictional question ambiguous,” the court may consider the affidavit in determining whether removal was proper), abrogated on other grounds by Marathon Oil Co. v. Ruhgras, 145 F.3d 211 (5th Cir.1998), rev’d on other grounds, 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). If the amount in controversy is clear from the face of the complaint, post-removal stipulations purporting to reduce the amount of damages cannot deprive the Court of jurisdiction.   Gebbia, 233 F.3d at 883.

 

III. DISCUSSION

*3 Because the complaint does not allege a specific amount of damages, defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. Defendants must show that at least one plaintiff’s claims, standing alone, satisfy the jurisdictional threshold; they cannot aggregate the value of multiple plaintiffs’ claims. See Snyder v. Harris, 394 U.S. 332, at 335, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969) (“[T]he separate and distinct claims of two or more plaintiffs cannot be aggregated in order to satisfy the jurisdictional amount requirement.”).

 

The Court first looks to the face of the complaint to determine whether the amount in controversy is facially apparent. Lisa Bryant, the plaintiff alleging the most extensive damages, alleges that she suffered a herniated disc and several soft tissue injuries. She conclusorily seeks damages for past and future medical expenses, pain and suffering, disability, lost wages, loss of earning capacity, and emotional distress.FN10 Bryant does not, however, allege that her injuries have required or likely will require surgery. Moreover, the Court finds no indication in the state court record that plaintiff requested a trial by jury, which requires the claim to be for at least $50,000. See La.Code Civ. P. art. 1732(1).

 

FN10. R. Doc. 1–1 at 2–3.

 

The Court finds that plaintiffs’ allegations are fairly “plain vanilla” and thus that it is not facially apparent that the amount in controversy requirement is satisfied. See Simon v. Wal–Mart Stores, Inc., 193 F.3d 848, 850–51 (5th Cir.1999) (not facially apparent that amount in controversy requirement was satisfied when complaint alleged damages for “an injured shoulder, bruises, and abrasions,” unidentified medical expenses, and loss of consortium); Jupiter v. Lowe’s Home Ctrs., Inc., Civil Action No. 12–895, 2012 WL 2878639, at *2 (E.D.La. July 13, 2012) (complaint containing “vanilla” allegations that plaintiff had suffered knee injuries and sought damages for “loss of enjoyment of life; physical disability, pain and suffering; past and future mental pain and suffering; disruption of bodily tissues and cells; and past, present, and future medical expenses” insufficient to put defendant on notice that amount in controversy exceeded $75,000); Heaverlo v. Victoria’s Secret Stores, Civil Action No. 07–7303, 2008 WL 425575, at *2–3 (E.D.La. Feb.8, 2008) (not facially apparent that jurisdictional threshold was satisfied when complaint alleged that defendants in slip-and-fall case were “liable for past and future ‘physical pain and suffering, mental and emotional pain and suffering, loss of enjoyment of life, permanent physical disability and disfigurement, loss of consortium, inconvenience, expenses, statutory and legal interest, court costs and attorney fees’ ”); Bonck v. Marriot Hotels, Inc., No. Civ.A. 02–2740, 2002 WL 31890932, at *2–3 (E.D.La. Dec.20, 2002); Jeffcoats v. Rite–Aid Pharmacy, No. Civ.A. 01–764, 2001 WL 1561803, at *2–3 (E.D.La. Dec.6, 2001); Seaman v. Tetra Applied Techs., Inc., No. Civ.A. 99–3811, 2000 WL 222851, at *2 (E.D.La. Feb.18, 2000). Indeed, in a case quite similar to this one, this Court held that a complaint seeking damages arising from an automobile accident did not facially satisfy the jurisdictional threshold, even though the plaintiff alleged that he experienced neck and back injuries and torn medial and lateral menisci in his knee. Williams v. Dargins, No. CIV.A. 99–0019, 1999 WL 163431, at *2–3 (E.D.La. Mar.22, 1999).

 

*4 The Court also notes that plaintiffs have stipulated that they do not seek more than $75,000 and that they will not execute a judgment greater than that amount.FN11 This document is signed by plaintiffs’ attorney and thus is binding on plaintiffs. See Degeyter v. Allstate Ins. Co., No. 09–1582, 2009 WL 3335959, at *2 (W.D.La. Oct.15, 2009) (“It is well settled that an attorney with proper authority, acting on behalf of his client, can bind his client.”). The Court can consider this stipulation as a clarification of plaintiffs’ demand, since the amount in controversy was unclear at the time of removal. See ANPAC, 988 F.2d at 565; Mouton v. Balboa Ins. Co., Civil Action No. 10–1639, 2010 WL 2902785, at *3 (E.D.La. July 20, 2010); Jeffcoats, 2001 WL 1561803 at *2.

 

FN11. R. Doc. 16–2.

 

Defendants have submitted no evidence that Bryant’s damages exceed $75,000; instead, they offer only conclusory statements in their notice of removal and opposition to the motion to remand that the jurisdictional minimum is satisfied.FN12 That distinguishes this case from McDonald v. Target Corp., Civil Action No. 11–598, 2011 WL 2160495 (E.D.La. June 1, 2011), upon which defendants rely. See id. at *1 (noting that plaintiff’s medical reports indicated that she was still suffering from “radiating pain in her extremities, neck pain, back pain, joint pain, and swelling” months after her accident). Defendants’ conclusory assertions that the amount in controversy requirement is satisfied are insufficient to defeat remand. See ANPAC, 988 F.2d at 566 (removing party fails to satisfy its burden of showing that removal was appropriate if “(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 [the jurisdictional threshold]; (2) the defendants offered only a conclusory statement in their notice of removal that was not based on direct knowledge about the plaintiff’s claims; and (3) the plaintiff timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present”); Bonck, 2002 WL 31890932, at *3.

 

FN12. See R. Doc. 1 at 3; R. Doc. 19 at 3–4.

 

In sum, the Court finds that defendants have failed to carry their burden of showing by a preponderance of the evidence that the amount in controversy exceeds $75,000.

 

IV. CONCLUSION

For the foregoing reasons, the Court concludes that it lacks subject matter jurisdiction over this case. The Court thus GRANTS plaintiffs’ motion to remand.