2021 WL 2187926

United States District Court, E.D. Louisiana.
Raymond ANGELIN
v.
THRIVE LOGISTICS, et al.
CIVIL ACTION NO: 20-01847
|
Signed 05/28/2021
Attorneys and Law Firms
Scott Eric Silbert, Jonathan Phillip Friedman, Silbert, Pitre & Friedman, Stephen M. Huber, Jacques Charles Mestayer, Logan E. Schonekas, Alex Tyler Robertson, Mary E. Schonekas, Huber, Thomas and Marcelle, LLP, Ashley Barriere, Keller Lenkner, LLC, New Orleans, LA, for Raymond Angelin.
Guy D. Perrier, Jordan M. Jeansonne, Megan Brooke Jacqmin, Perrier & Lacoste, LLC, New Orleans, LA, for Knight Specialty Insurance Company, Thrive Logistics, Inc., Jeremy Stready.

SECTION: T (5)

ORDER
GREG GERARD GUIDRY, UNITED STATES DISTRICT JUDGE
*1 Before the Court is a Motion for Partial Summary Judgment filed by Defendant Thrive Logistics, Inc. (hereinafter, “Defendant”)(R. Doc. 13), and the response filed by the Plaintiff, Raymond Angelin, stating he has no evidence to oppose Defendant’s Motion (R. Doc. 23). For the reasons set forth below, the Motion for Partial Summary Judgment is GRANTED, and Plaintiff’s direct negligence claims against Defendant Thrive Logistics, Inc., are dismissed with prejudice.

This action arises from an alleged motor vehicle accident on April 8, 2019, in Orleans Parish, Louisiana, involving a tractor-trailer operated by Plaintiff and a tractor-trailer operated by defendant Jeremy Stready (R. Docs. 1-4 and 13-2, p. 1). Plaintiff alleges the accident and his resulting injuries and damages were caused by the negligence of Mr. Stready in several enumerated particulars. He further alleges Mr. Stready was acting in the course and scope of his employment with Defendant Thrive Logistics at the time of the accident and, correspondingly, that Defendant is vicariously liable for his alleged negligence under the doctrine of respondeat superior. Plaintiff additionally and separately alleges that the subject accident and his resulting injuries and damages were proximately caused by Defendant’s independent or direct negligence in a number of particulars.1 As Plaintiff concedes, Defendant Thrive Logistics has admitted Mr. Stready was acting in the course and scope of his employment with Defendant when the alleged accident at issue occurred, and there is no evidence to contradict that admission.2

Defendant Thrive Logistics brings this Motion for Partial Summary Judgment on the basis that, under settled Louisiana law, a plaintiff cannot simultaneously maintain both a direct negligence claim and a claim for vicarious liability against a defendant-employer, when the employer has stipulated its defendant-employee was in the course and scope of employment when the alleged negligence occurred.

LAW and ANALYSIS
Summary judgment is proper where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”3 When assessing whether a dispute as to any material fact exists, the court considers “all the evidence in the record but refrains from making credibility determinations or weighing the evidence.”4 All reasonable inferences are drawn in the favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”5 The party seeking summary judgment bears the burden of demonstrating the absence of a genuine issue of material fact.6 “Once the movant does so, the burden shifts to the nonmovant to establish an issue of fact that warrants trial.”7

*2 The issue before the Court is whether a plaintiff in Louisiana can maintain direct negligence claims, such as negligent hiring, training, or supervision, against an employer, while at the same time asserting claims against the alleged negligent employee for which the plaintiff seeks to hold the employer vicariously liable when the employer has admitted the employee was in the course and scope of employment at the time of the alleged conduct. The Louisiana Supreme Court has not yet definitively resolved that issue, but Louisiana federal courts making an “Erie guess” have determined that: “A plaintiff may not simultaneously maintain independent causes of action in tort against both an employee and an employer for the same incident when the plaintiff alleges both [ ] negligence by the employee and [ ] negligent hiring, training, and/or supervision by the employer; and [when] the employer stipulates that the employee acted in the course and scope of employment.”8 Defendant Thrive Logistics points to Louisiana state courts that have favorably relied on the federal district court decisions to hold similarly that plaintiffs cannot maintain direct negligence claims against an employer while simultaneously maintaining claims against the alleged negligent employee for which plaintiffs seek to hold the employer vicariously liable after the employer has admitted the employee was in the course and scope of employment at the time of the alleged conduct.9 Plaintiff makes no argument to the contrary. Accordingly, this Court, too, will follow the reasoning in Dennis v. Collins.

In this case, Plaintiff does not dispute Defendant’s admission that the alleged motor vehicle accident at issue occurred while Mr. Stready was acting in the course and scope of his employment with Defendant. Therefore, the Court finds, as a matter of law, that Plaintiff cannot simultaneously maintain both (1) a negligence cause of action against Mr. Stready for which Defendant is vicariously liable under respondeat superior and (2) a direct/independent negligence cause of action against Defendant for its alleged negligent entrustment, hiring, training and supervision of Mr. Stready. Accordingly,

IT IS ORDERED that the Motion for Partial Summary Judgment filed by Defendant Thrive Logistics, Inc. is GRANTED, and Plaintiff’s direct negligence claims against Defendant are dismissed with prejudice.

All Citations
Slip Copy, 2021 WL 2187926

Footnotes

1
Plaintiff’s direct negligence claims against Defendant Thrive Logistics are as follows:
a. Failing to take necessary action to avoid the accident;
b. Failing to properly monitor and train employee drivers;
c. Acting with wanton and reckless disregard for the rights and safety of others;
d. Failing to use due care and caution under the circumstances; and
e. Any and all other acts of negligence, fault or imprudence which may be proven during the investigation of this matter, all of which are violations of the laws of Louisiana and the applicable ordinances which are hereby specifically pleaded and adopted by reference as though set forth in extenso.
R. Doc. 1-4, ¶ 8.

2
R. Doc. 1-4, ¶ 6, and R. Doc. 12, Stipulation as to Course and Scope of Employment.

3
Fed. R. Civ. P. 56(a).

4
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

5
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

6
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986).

7
Smith v. Reg’l Transit Auth., 827 F.3d 412, 420 n.4 (5th Cir. 2016).

8
Wright v. National Interstate Ins. Co., No. CV 16-16214, 2017 WL 5157537, at *3 (E. D. La. 2017) (quoting Dennis v. Collins, No. CV 15-2410, 2016 WL 6637973, at *5 (W.D. La. 2016)); see also Wilcox v. Harco International Insurance, No. CV 16-187, 2017 WL 2772088, at *3 (M.D. La. 2017),

9
R. Doc. 13-2, p. 6, n. 26, citing inter alia Wheeler v. United States Fire Ins. Co., 18-1422 (La. App. 1 Cir. 6/13/19); 2019 WL 2612903 (not reported), and attached as Exhibit C.

Williams v. Yakima
United States District Court for the Northern District of Alabama, Southern Division
June 21, 2021, Decided; June 21, 2021, Filed
Case No.: 2:21-cv-00429-JHE

Reporter
2021 U.S. Dist. LEXIS 115110 *; 2021 WL 2533021
SHIRLEY WILLIAMS, et al., Plaintiffs, v. CHEYENNE VALENTINO YAKIMA, et al., Defendants.

MEMORANDUM OPINION1
Plaintiffs Shirley Williams (“Williams”) and Morgan King (“King,” and together with Williams, “Plaintiffs”) initiated this action on March 9, 2021, by filing a complaint in the Circuit Court of Jefferson County, Alabama. (Doc. 1-1). On March 23, 2021, Defendants Cheyenne Valentino Yakima (“Yakima”) and Distant Star Transport, Inc. (“Distant Star,” and together with Yakima, “Defendants”) removed the action to this court, alleging the complaint satisfied the requirements of this court’s diversity of citizenship jurisdiction under 28 U.S.C. § 1332. (Doc. 1). Plaintiffs have now moved to remand. (Doc. 5). Defendants oppose the motion. (Doc. 7). For the reasons discussed further below, the motion is GRANTED.

I. Standard of Review
A defendant may remove an action initially filed in state court to federal [*2] court if the action is one over which the federal court has original jurisdiction. 28 U.S.C. § 1441(a); Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987). Relevant here, jurisdiction exists if there is complete diversity between the parties and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332(a)(1); Sweet Pea Marine, Ltd. V. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005). If removal is based on diversity of citizenship, Defendants have the burden of demonstrating both complete diversity and the amount in controversy. See 28 U.S.C. § 1332(a); Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010); Dudley v. Eli Lilly and Co., 778 F.3d 909, 913 (11th Cir. 2014). The “statutory procedures for removal are to be strictly construed.” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32, 123 S. Ct. 366, 154 L. Ed. 2d 368 (2002).
Where a defendant’s notice of removal makes a good-faith claim asserting the amount in controversy, his “allegation should be accepted when not contested by the plaintiff or questioned by the court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87, 135 S. Ct. 547, 190 L. Ed. 2d 495 (2014). However, when a defendant’s amount in controversy allegation is “contested by the plaintiff or questioned by the court,” then “both [plaintiff and defendant] submit proof and the court decides, by a preponderance of the evidence, whether the amount in controversy requirement has been satisfied.” Id. at 88. The court must find it is “more likely than not” that the plaintiff could recover more than $75,000 from the defendant for diversity jurisdiction to exist. Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010).

II. Background
According to the complaint, Williams and King are both residents of Alabama, [*3] Distant Star is “upon information and belief . . . a domestic corporation organized and doing business in Jefferson County, Alabama.” and Yakima is a resident of Georgia.2 (Doc. 1-1 at 3-4, ¶¶ 1-4). Williams was driving King’s 2014 Toyota Camry on January 27, 2021, when Yakima (who is employed by Distant Star) drove the vehicle he was operating into King’s vehicle. (Id. at 4, ¶¶ 6-7, 9). As a result, King’s vehicle sustained significant damage. (Id. at 4-5, ¶¶ 9, 12). Williams herself “incurred medical and hospital expenses, lost income, sustained property loss, pain and suffering, and out-of-pocket expenses and may sustain permanent physical impairment and disability, future lost wages, future medical bills, and [her] ability to earn a living may be permanently impaired.” (Id. at 4, ¶ 11).
The complaint asserts a negligence count against Yakima, (id. at 4-5, ¶¶ 8-12), and a negligent entrustment count against Distant Star, (id. at 5, ¶¶ 13-18). They seek “actual, and general damages, and such other damages as allowed by the State of Alabama in the amount reasonably calculated for the injuries caused by Defendant Cheyenne Valentino Yakima.” (Id. at 5).
In their notice of removal, [*4] Defendants contend there is complete diversity of citizenship between the parties because “Defendants Yakima and Distant Star are residents of the State of Georgia.” (Doc. 1 at 2, ¶ 4) (citing “Complaint”). Defendants also argue the “[t]he amount in controversy is not set forth in plaintiffs’ complaint but is assume [sic] the damages sought exceed the sum of $75,000, exclusive of interest and costs, as the Plaintiffs allege physical injuries, medical expenses, temporary and permanent disability, physical pain and suffering, mental anguish, lost wages, and disfigurement since the automobile accident occurred on January 27, 2021.” (Id., ¶ 5).

III. Analysis
Plaintiffs’ basis for remand is that the amount in controversy is not apparent from the face of the complaint and Defendants have not met their burden to demonstrate it has been met.3 (See doc. 5). They point out that they have made an unspecified demand for damages, contending the court would have to speculate as to the amount they seek. (Id. at 1-2). In response, Defendants argue Plaintiffs are seeking punitive damages for a wantonness claim, so the court can reason that the amount in controversy exceeds $75,000. (Doc. 7 at 1-2). Defendants [*5] also argue Plaintiffs’ failure to specifically disclaim more than $75,000 leads to a presumption that diversity jurisdiction exists. (Id. at 3).
When a complaint, such as the one in this case, does not request a specific amount of damages, removal is proper if it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010). In this assessment, the district court “need not suspend reality or shelve common sense.” Roe v. Michelin North America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010). Instead, this court may use “reasonable deductions, reasonable inferences, or other reasonable extrapolations from the pleadings to determine whether it is facially apparent that the case is removable.” Id. The court is not “bound by the plaintiff’s representations regarding its claim, nor must it assume that the plaintiff is in the best position to evaluate the amount of damages sought.” Id. Furthermore, the court must consider a request for and availability of punitive damages unless it is apparent to a legal certainty that such cannot be recovered. See, e.g., Holley Equip. Co. v. Credit Alliance Corp., 821 F.2d 1531, 1535 (11th Cir. 1987); Mitchell v. Carrington Mort. Serv., L.L.C., Case No. 5:16-cv-00833-CLS, 2016 U.S. Dist. LEXIS 85915, 2016 WL 3570373, *3 (N.D. Ala. July 1, 2016).
Plaintiffs are correct that the complaint does not contain any specific monetary request for damages. Indeed, the allegations in the complaint are [*6] bare-bones at best; they do not disclose anything in particular about the accident other than that it was caused by Yakima, that Williams suffered unspecified injuries that may or may not be permanent and incurring unspecified expenses, and that the King’s Toyota Camry was significantly damaged. That said, fairness dictates that a plaintiff cannot avoid removal simply by pleading vague allegations, so the undersigned proceeds with the analysis.
As they did in their notice of removal, (see doc. 1), Defendants rely almost entirely on the existence of Plaintiffs’ wantonness claim and request for punitive damages to infer that the amount in controversy exceeds $75,000. (See generally doc. 7). The problem with this argument is that there is neither a wantonness claim nor a request for punitive damages in the complaint. Defendants point to Count One, Paragraph 9 of the complaint to locate the wantonness claim. (See id. at 1). It is true that the paragraph Defendants reference states “Yakima negligently and wantonly drove the vehicle he was operating into the vehicle of that Plaintiff Williams was driving . . . .” (Doc. 1-1 at 4, ¶ 9). However, there is only this and one other stray reference [*7] to wantonness in the complaint: Paragraph 12, which refers to “the aforesaid negligence or wantonness,” (id. at 5, ¶ 12). Count One, under which both paragraphs appear, is titled “COUNT ONE — NEGLIGENCE.” (Id. at 4) (emphasis in original). Paragraph 10, the paragraph immediately following the one Defendants cite, states, in full, “The negligence of Defendant Cheyenne Valentino Yakima and/or Fictitious Parties A-E was the proximate cause of the Plaintiff Williams’s injuries.” (Id., ¶ 5) (emphasis added). It is unreasonable to conclude the two references to wantonness mean the complaint actually asserts a cause of action for wantonness, given the conspicuous title of the count and the absence of any specific allegations concerning Yakima’s purportedly wanton conduct. See Tolbert v. Tolbert, 903 So.2d 103, 114 (Ala. 2004) (wantonness “is not merely a higher degree of culpability than negligence[, but a] qualitatively different tort . . . .”).
Furthermore, there is no obvious request for punitive damages in the complaint. Plaintiffs do not put a dollar amount on the damages they seek, but they do specify that they seek particular categories of damages: “actual, and general damages, and such other damages as allowed by the State of Alabama [*8] in the amount reasonably calculated for the injuries caused by Defendant Cheyenne Valentino Yakima,” (doc. 1-1 at 5). Defendants characterize this as an implicit request for punitive damages, but they cite no authority for the proposition that a request for punitive damages can or should be inferred from a catchall request for relief. Cf. Holley, 821 F.3d at 1535 (considering punitive damages as part of remand calculus where plaintiff “seeks actual and punitive damages”); Rae v. Perry, 392 Fed. Appx. 753, 756 (11th Cir. 2010) (same, noting plaintiff’s complaint contained a request for punitive damages); Bolling v. Union Nat’l Life Ins. Co., 900 F. Supp. 400, 401-02 (M.D. Ala. 1995) (same, observing the complaint “seeks recovery of an unspecified amount, including punitive damages.”). Defendants’ requested inference is particularly inapt because Plaintiffs explicitly state they request compensation “for the injuries caused”—i.e., compensatory damages. By contrast, punitive damages “are aimed not at compensation but principally at retribution and deterring harmful conduct.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 492, 128 S. Ct. 2605, 171 L. Ed. 2d 570 (2008). Finally, the inference Plaintiffs seek punitive damages necessarily rests on the inference they are asserting a wantonness claim; mere negligence does not support the imposition of punitive damages. See Lafarge N. Am., Inc. v. Nord, 86 So. 3d 326, 335 (Ala. 2011) (“Punitive damages cannot be awarded on a negligence claim”). [*9] It is Defendants’ burden to show “the jurisdictional facts necessary to establish” that punitive damages are at issue, “that is, that such damages could be awarded.” McDaniel v. Fifth Third Bank, 568 Fed. Appx. 729, 731 (11th Cir. 2014) (emphasis in original). Defendants cannot meet that burden by piling one tenuous inference upon one another.
Even if a wantonness claim and a request for punitive damages could be read into the complaint, Defendants’ authority is off the mark. Defendants contend this case is similar to Pullum v. Ford Motor Co., No. 2:19-CV-120-ECM, 2019 U.S. Dist. LEXIS 104097, 2019 WL 2578948 (M.D. Ala. June 21, 2019), an unpublished products liability case from another district. In that case, the court inferred that the plaintiff’s multiple requests for punitive damages against Ford Motor Company “would need to be substantial” if awarded, given Ford’s size. Id. at *3. Unlike this case, the plaintiff’s punitive damages requests in Pullum were explicit in the complaint. Id. at *1 (“Pullum asserts claims of fraud, fraud in the inducement, breach of express warranty, breach of implied warranty, and a violation of the Magnuson-Moss Warranty Act . . . . Under each of her state-law claims, Pullum requests punitive damages.”). As to whether Pullum’s reasoning supports punitive damages here, Defendants appear to rely solely on the fact that Distant Star is “an out of state trucking [*10] company . . . .” (Doc. 7 at 2). There is no indication that Distant Star is a large company like Ford, or that an award of punitive damages against it would need to be large to “punish [it] and deter future similar conduct,” (id. at 1). Pullum is inapposite and unpersuasive.
Defendants’ only other argument is that Plaintiffs’ alleged failure to disclaim damages above $75,000 shows the amount in controversy is met. (Doc. 7 at 3). Defendants fail to cite any authority for this claim. That said, while “a refusal to stipulate standing alone does not satisfy [the defendant’s] burden of proof on the jurisdictional issue,” Williams v. Best Buy Co., 269 F.3d 1316, 1320 (11th Cir. 2001) (emphasis added), it is relevant to the issue, and courts routinely consider it as such. See, e.g., Jones v. Novartis Pharms. Co., 952 F. Supp. 2d 1277, 1287 (N.D. Ala. 2013) (considering refusal to stipulate to damages less than the jurisdictional amount as one factor among several counseling against remand); Devore v. Howmedica Osteonics Corp., 658 F. Supp. 2d 1372, 1380 (M.D. Fla. 2009) (“[A] plaintiff’s refusal to stipulate or admit that she is not seeking damages in excess of the requisite amount should be considered when assessing the amount in controversy.”). Here, given the absence of any other indication in this case that the jurisdictional amount has been met, the undersigned declines to attach dispositive relevance [*11] to the lack of a disclaimer.

IV. Conclusion
For the reasons stated above, Plaintiffs’ motion to remand is GRANTED. This case is due to be REMANDED to the Circuit Court of Jefferson County, Alabama. A separate order will be entered.
DONE this 21st day of June, 2021.
/s/ John H. England, III
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

REMAND ORDER1
In accordance with the memorandum opinion entered contemporaneously herewith, the Clerk is DIRECTED to REMAND this case to the Circuit Court of Jefferson County, Alabama.
DONE this 21st day of June, 2021.
/s/ John H. England, III
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE