Turner v. GoAuto Ins. Co.
| Docket Number | Civil Action 21-557-BAJ-RLB |
| Decision Date | 24 November 2021 |
| Parties | ROBERT MARK TURNER v. GOAUTO INSURANCE COMPANY |
| Court | U.S. District Court — Middle District of Louisiana |
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact conclusions of law and recommendations therein. Failure to file written objections to the proposed findings conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Before the Court is Plaintiff's Motion to Remand (R. Doc. 8), Plaintiff's Motion to Strike the Declaration of Jason Bruge and Attached Exhibits A-H (R. Doc. 10), Plaintiff's Motion to Strike Declaration of Kerry Berry (R. Doc. 11), and Plaintiff's Motion for Judicial Notice and Sua Sponte Remand (R. Doc. 12).
The Court ordered expedited briefing with respect to the discrete issue of whether Plaintiff's Second Supplemental and Amending Petition was the operative pleading at the time of removal. (R. Doc. 15). Defendant filed an expedited response memorandum on this issue. (R. Doc. 16). Plaintiff filed a Reply (R. Doc. 22) and a “Supplemental” Reply. (R. Doc. 29).
Defendant also filed general oppositions to each of Plaintiff's motions. (R. Docs. 23, 24, 25). After Defendant filed its oppositions, Plaintiff filed a “Rule 56 Motion for Summary Judgment, ” which seeks remand based on the untimeliness of removal. (R. Doc. 26).[1]
On November 8, 2021, and in light of the redundant motions and briefing in the record, the Court informed counsel that Plaintiff's pending motions pertaining to the propriety of removal that have been referred to the undersigned for resolution (R. Docs. 8, 10, 11, 12) are fully briefed, and that no further briefing would be allowed with respect to these motions. (R. Doc. 28).
Robert Mark Turner (“Plaintiff”) initiated this class action on or about January 28, 2019 by filing a Petition for Damages in the 19th Judicial District Court of East Baton Rouge Parish, Louisiana. (R. Doc. 1-27). Plaintiff moved for leave to file an Amended Petition for Damages on December 1, 2020, and the State Court judge signed an Order granting the motion on December 7, 2020. (R. Doc. 1-28). Plaintiff asserts that a class certification hearing was scheduled to take place on November 4, 2021. (R. Doc. 8 at 1; R. Doc. 22-1).
On September 29, 2021, GoAuto Insurance Company (“Defendant” or “GoAuto”) removed this action, purportedly based on information received in Plaintiff's Reply Memorandum in Support of Class Certification. (R. Doc. 1). In the Notice of Removal, Defendant asserts that this Court can properly exercise jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d), because the lawsuit is a class action in which there is minimal diversity of citizenship and the amount in controversy exceeds $5 million. (R. Doc. 1 at 3). There is no dispute that Plaintiff and Defendant are citizens of the State of Louisiana.
In support of a finding that there is minimal diversity of citizenship, Defendant asserts that the operative pleading in this action is Plaintiff's Amended Petition for Damages. (R. Doc. 1 at 2). Paragraph 104 of the Amended Petition defines the purported class as follows:
The class of all residents of Louisiana who were insured by GoAuto for the total loss of their vehicle, who suffered damage to their vehicle during the GoAuto policy period, and who were paid by GoAuto for their total loss based upon a valuation that was reduced by a “condition adjustment” deducted from the stated values of the comparison vehicles used to calculate GoAuto's payment for the total loss vehicle.
(R. Doc. 1-28 at 20) (emphasis added). Defendant asserts that some “Louisiana resident policyholders are not Louisiana citizens” because, in the process of asserting claims, those policyholders “have provided GoAuto last known addresses outside the State of Louisiana.” (R. Doc 1 at 5-6). Defendant submits declarations by Jason Burge and Kerry Berry in support of the proposition that certain purported class members under the Amended Petition are not citizens of Louisiana, and, therefore, there is minimal diversity under CAFA. (See R. Docs. 1-2 to 1-13; R. Doc. 1-31) (sealed)).
The foregoing assertion of minimal diversity under CAFA is premised on Defendant's assertion that Plaintiff's Amended Petition was the operative pleading at the time of removal. Defendant asserts the following in Footnote 1 of its Notice of Removal: “Plaintiff subsequently filed a Motion for Leave to File Second Supplemental and Amending Petition on September 7, 2021, but the order granting the motion for leave was not executed as of the date this Notice of Removal was filed, hence the Amended Petition remains the operative petition.” (R. Doc. 1 at 2 n.1) (emphasis added). Defendant submits a copy of Plaintiff's Motion for Leave to File Second Supplemental and Amending Petition, which includes an unsigned proposed order. (R. Docs. 1-23 at 18-19 (pages 1-2); R. Doc. 1-24 (pages 3-13), 1-25 (pages 15-24), 1-26 at 1-6 (pages 25-30)).
On October 12, 2021, Plaintiff filed his Motion to Remand (R. Doc. 8); Motion to Strike the Declaration of Jason Burge and the attached Exhibits A-H (R. Doc. 10); Motion to Strike Declaration of Kerry Berry (R. Doc. 11); Motion for Judicial Notice and Sua Sponte Remand (R. Doc. 12); and Motion for Expedited Consideration of the Motions to Remand (R. Doc. 13). In seeking remand, Plaintiff argues that (1) the Second Supplemental and Amending Petition is the operative pleading and, given its limitation of the proposed class to Louisiana citizens, there is no minimal diversity of citizenship to support CAFA jurisdiction, and (2) removal was untimely because it was filed nine months after the filing of the Amended Petition, which satisfied the requirements for CAFA jurisdiction. Plaintiff also seeks orders striking the declarations of Jason Burge and Kerry Berry on various evidentiary grounds.
With respect to the issue of minimal diversity, Plaintiff argues that because the State Court judge granted his Motion for Leave to File Second Supplemental and Amending Petition on September 27, 2021, it was the operative pleading in this action prior to removal on September 29, 2021. (R. Doc. 8 at 1; R. Doc. 12 at 1-2). Plaintiff submitted a copy of a signed version of the proposed order and pleading. (R. Doc. 8-2). Plaintiff sought expedited consideration to ensure remand prior to the scheduled November 4, 2021 class certification hearing in State Court. (R. Doc. 13). The Court granted the motion for expedited consideration in part, and ordered expedited briefing on the issue of whether Plaintiff's Second Supplemental and Amending Petition was, in fact, the operative pleading at the time of removal and, if so, whether that pleading satisfies the minimal diversity required under CAFA. (R. Doc. 15).
Defendant submitted a brief arguing that Plaintiff's Second Supplemental and Amending Petition is not the operative pleading because it was not “filed and served” before removal as required under Louisiana Code of Civil Procedure article 1914(B). (R. Doc. 16 at 8-10). Defendant further argues that regardless of whether Plaintiff's Second Supplemental and Amending Petition is the operative pleading, Plaintiff cannot defeat minimal diversity by defining the class as limited to Louisiana citizens. (R. Doc. 16 at 4-8). In contrast, Plaintiff argues that his Second Supplemental and Amending Petition became the operative pleading when signed by the State Court judge. (R. Doc. 22). In support of this position, Plaintiff submits a certified copy of the Court Minutes (R. Doc. 22-1) and a screenshot of the State Court's electronic docket (R. Doc. 22-2) indicating that the order was in fact signed on September 27, 2021. Plaintiff further argues that as master of his complaint he can limit the proposed class to Louisiana citizens.
Defendant submitted further arguments in opposition to Plaintiff's bases for remand and striking the declarations submitted with the Notice of Removal. (R. Docs. 23, 24, 25). The Court need not reach the additional issues raised in Plaintiff's motions, however, because Plaintiff's Second Supplemental and Amending Petition is the operative pleading and precludes a finding of minimal diversity.
CAFA expanded federal district courts' original jurisdiction to include “‘class actions' and ‘mass actions'” in which there is minimal diversity and the aggregate amount in controversy exceeds $5 million. Mississippi ex rel. Hood v. AU Optronics Corp., 134 S.Ct. 736, 739-40 (2014). Under CAFA, federal diversity jurisdiction is conferred over class actions where (1) the number of individuals in the proposed class exceeds 100; (2) minimal diversity of citizenship exists; i.e. at least one plaintiff and one defendant are from different states, and (3) the amount in controversy, exclusive of interests and costs, is greater than $5, 000, 000. 28 U.S.C § 1332(d), (5)(B); see Nolan v. Exxon Mobil Corp., No. 13-439, 2013 WL 6194621, at *2 (M.D. La. Nov. 26, 2013). The defendant bears the burden of demonstrating that these factors...
To continue reading
Request your trial