Uniform Pretrial Order; Notice for Jurisdiction

=== Uniform Pretrial Order ===

UNIFORM PRETRIAL NOTICE FOR MAGISTRATE JUDGE ERIN WILDER-DOOMES I. PRETRIAL ORDER REQUIREMENTS Counsel for the Plaintiff(s), with the cooperation and assistance of all other counsel and any unrepresented parties, shall prepare a written Pretrial Order in this case to be signed by all counsel of record and then filed with Court. In the event that there is any disagreement with the content of the Pretrial Order or any part thereof, the objecting counsel or party shall attach an Opposition to the Pretrial Order prior to its submission to the Court. An example of a completed Pretrial Order, approved as to form for use in this Court, is attached to this Notice. The Pretrial Order shall contain the following information: 1. 2. 3. 4. 5. 6. 7. The specific statute(s) or other authority upon which federal subject matter JURISDICTION is founded and any jurisdictional questions raised by any party. A list of all pending MOTIONS, if any, and specific issues raised in those pending motions. A brief statement of the CLAIMS OF EACH PLAINTIFF. A brief statement of the CLAIMS OF EACH DEFENDANT. A brief statement of the CLAIMS OF OTHER PARTIES, if any. FACTS ESTABLISHED by pleadings or by stipulation of counsel. (a) A list of all EXHIBITS (except documents for impeachment only) to be offered in evidence by all parties. (b) As to each listed exhibit, a representation that: i. ii. There are, or are not, objections to the AUTHENTICITY of the exhibit and the reasons therefore; however Objections, if any, to the ADMISSIBILITY of exhibits need not be addressed in the Pretrial Order, but will instead be presented to the Court by motions in limine and pretrial memoranda to be filed at a time to be set by the Court at the pretrial conference. 1 8. (a) List all WITNESSES for each party, including their names, addresses, and a brief statement as to the nature of their expected testimony together with a representation whether they WILL be called to testify or MAY be called to testify. (b) WILL CALL witnesses shall be produced or subpoenaed by the party listing them and made available during the trial in order that such witnesses may be available to opposing counsel as witnesses even if not actually called upon to testify by the party so listing them. A party shall not release a will call witness without the express written or on-the-record consent of the other party. This is intended to eliminate the necessity of opposing counsel having to subpoena the same witnesses who are being voluntarily produced or subpoenaed by the party listing them as “will call” witnesses. (c) MAY CALL witnesses shall be listed on the Pretrial Order, but there is no obligation on the party listing a “may call” witness to have that witness subpoenaed and present for the trial. (d) The parties shall designate which of the witnesses, if any, will testify by WRITTEN OR VIDEOTAPE DEPOSITIONS. Where written or video depositions are to be used, the parties shall designate for the Court and all other parties those portions of the deposition which are to be read or shown to the jury not later than twenty-one (21) days prior to trial. Only those portions of the deposition which are necessary to a party’s case shall be read or played to the jury. Where a video deposition is used, the parties shall file into evidence a written transcript of the deposition. Videotape depositions to be used during trial must be edited to a MAXIMUM OF THIRTY (30) MINUTES. Depositions to be introduced or read at trial must be excerpted to a MAXIMUM OF THIRTY (30) PAGES. A reader must be provided by the party who intends to have a transcript read during trial. (e) Objections contained within written or videotaped depositions shall be edited out of the tape or transcript. Any deposition objections which require a ruling by the Court shall be submitted to the Court fourteen (14) days prior to trial. State any proposed AMENDMENTS to the pleadings and what objections, if any, there may be to any proposed amendments. State any ADDITIONAL MATTERS which may aid in the disposition of the case, including, e.g., settlement possibilities, whether the parties wish to engage in an arbitration, mediation, or court facilitated settlement conference, and an estimate of the probable length of the trial. 9. 10. 11. State whether this matter is a jury or a non-jury trial. 2 12. Estimate the length of time each side requires for the presentation of their evidence. 13. Except for good cause shown, only exhibits and witnesses listed in the Pretrial Order, or permitted to be listed in an amendment to the Pretrial Order, shall be admitted in evidence or allowed to testify. II. ADDITIONAL INSTRUCTIONS 1. JOINT JURY INSTRUCTIONS/INTERROGATORIES. The parties in a jury case shall file with the Clerk of Court joint jury instructions are to be filed by the deadline contained in the operative scheduling order. The term “joint jury instructions” shall be construed to include a joint verdict or interrogatory form. NO SEPARATE FILINGS are allowed as to the joint jury instructions and interrogatories - all submissions must be joint with disagreements footnoted with case authority and pinpoint citations. All pattern instructions taken from the latest Edition of the 5th Circuit Pattern Instructions may be referenced by number and edition used. 2. Please be advised that Courtroom 5 is a fully equipped electronic courtroom. Any exhibits used at trial shall be presented by a laptop connection or by conventionally presenting exhibits using the electronic document camera. Counsel shall contact Judge Wilder-Doomes’ Courtroom Deputy, Brandy Lemelle Route at (225) 389-3584, so that training in the use of this equipment can be scheduled and completed prior to trial. 3 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA PLAINTIFF, ET AL. VERSUS CIVIL ACTION NO. 13-000-RLB DEFENDANT, ET AL. CONSENT CASE UNIFORM PRETRIAL ORDER Pursuant to Rule 16 of the Federal Rules of Civil Procedure, a Pretrial Conference was conducted in this proceeding by Richard L. Bourgeois, Jr., United States Magistrate Judge, on the day of , 201_. PRESENT: Appeared as Trial Counsel for Plaintiff(s): Appeared as Trial Counsel for Defendant(s): 1. JURISDICTION This Court has subject matter jurisdiction in this proceeding under the provisions of 28 USC §1332. The Plaintiff is a citizen of the State of Louisiana and the Defendant is a citizen of the State of Illinois and the amount in controversy exceeds, exclusive of interest and costs, the necessary jurisdictional amount. 4 2. MOTIONS There are no pending motions. The Defendant will file a Motion in Limine to exclude certain photographs from evidence at trial on the basis that they are unnecessarily gruesome and unlikely to assist the jury in resolving any disputed issues of fact. 3. PLAINTIFF’S CLAIMS The Plaintiff claims that he was seriously injured in an automobile accident in Baton Rouge, Louisiana, on October 19, 1996, and that the accident was caused by the negligence and fault of the Defendant driver who ran into the rear of the Plaintiff’s automobile after he had stopped for a red light. The Plaintiff also contends that his injuries in the accident required a long period of hospitalization and made it impossible for him to return to his regular employment as a truck driver for six months, all of which resulted in significant loss of income and out-of-pocket medical and hospital expenses. 4. DEFENDANT’S CLAIMS The Defendant denies that he was negligent or otherwise at fault for the occurrence of the accident for which the Plaintiff has filed suit, and also claims that the Plaintiff had serious health problems for many years prior to the accident and that these problems were not caused or aggravated by any injuries he sustained in the accident. 5. CLAIMS OF OTHER PARTIES None. 5 6. ESTABLISHED FACTS (1) (2) (3) The Plaintiff and Defendant were involved in an automobile accident in Baton Rouge, Louisiana, on October 19, 1996. The Plaintiff was hospitalized in the Baton Rouge General Hospital from October 19, 1996 to November 30, 1996. The Plaintiff incurred medical and hospital expenses of $63,480 from October 19, 1996 to March 30, 1997. 7. EXHIBITS (a) Plaintiff’s Exhibits: EXHIBIT NO. Exhibit 1 Exhibit 2 DESCRIPTION Photograph of Defendant at scene following accident Photograph of accident scene Exhibit 3 Exhibit 4 Exhibit 5 Automobile Insurance Policy Medical Records of Plaintiff from Baton Rouge General Medical Records of Plaintiff from Acadian Ambulance (b) Defendant’s Exhibits: EXHIBIT NO. Exhibit 1 Exhibit 2 DESCRIPTION Photograph of damage to Defendant’s vehicle Photograph of accident scene Grounds for Objection to Authenticity Stipulated Objection to authenticity: no evidence of date, time and identity of photographer Stipulated Stipulated Stipulated Grounds for Objection to Authenticity Stipulated Objection to authenticity: does not accurately depict the scene of accident 6 8. WITNESSES (a) Plaintiff’s WillCall Witnesses: (1) Paul Plaintiff 125 Mulberry Street Baton Rouge, Louisiana Plaintiff will testify about the accident and his injuries. (2) Paulette Plaintiff 125 Mulberry Street Baton Rouge, Louisiana Plaintiff’s wife will testify about her husband’s injuries. (3) Walter Witness 128 Mulberry Street Baton Rouge, Louisiana This is an eyewitness who will testify about the accident. (4) Dr. Tom Terry 350 Medical Plaza Baton Rouge, Louisiana The Plaintiff’s treating physician will testify about his injuries. (5) Edwin Employer ABC Manufacturing 150 Industrial Boulevard Baton Rouge, Louisiana The Plaintiff’s employer will testify about his lost wages. (6) Danny Defendant 140 Elm Street Baton Rouge, Louisiana 7 The Defendant will testify about how the accident occurred under cross-examination. (b) Plaintiff’s MayCall Witnesses: (1) Virginia Smith 165 Sharp Road Baton Rouge, Louisiana 70815 Plaintiff’s neighbor may testify about Plaintiff’s activities prior to and after the accident. (c) Defendant’s WillCall Witnesses: (1) Danny Defendant 125 Mulberry Street Baton Rouge, Louisiana Defendant will testify about the accident. (2) Paul Plaintiff 125 Mulberry Street Baton Rouge, Louisiana Plaintiff will testify about the accident and his injuries under cross-examination. (3) William Witness 130 Mulberry Street Baton Rouge, Louisiana This is an eyewitness and will testify about the accident. (4) Dr. John Smith Ascension General Hospital 290 Worthy Road Gonzales, Louisiana The Plaintiff’s former treating physician will testify about his health prior to and after the accident. 8 (5) Sgt. Tom Trooper Baton Rouge Police Department Baton Rouge, Louisiana Sgt. Trooper will testify about his investigation of the accident. 9. AMENDMENTS None. 1. 2. 3. 10. ADDITIONAL MATTERS This matter is designated as a jury trial. The parties estimate the case can be tried in one day and have considered the possibility of settlement. Plaintiffs presentation of evidence will require 1 day (or you may denote hours). Defendants presentation will require 4 hours. ___________________________ DATE ________________________________1 ATTORNEY FOR PLAINTIFF ___________________________ DATE ________________________________ ATTORNEY FOR DEFENDANT 1 See Local Rule 11(a) regarding Signing of Pleadings, Motions and Other Papers and Local Rule 5(f) regarding Certificate of Service. 9

=== Notice for Jurisdiction ===

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA NOTICE OF REQUIREMENTS FOR DIVERSITY JURISDICTION, 28 U.S.C. § 1332 I. General Legal Standards “Federal courts are courts of limited jurisdiction…It is to be presumed that a cause lies outside this limited jurisdiction….”1 As explained by the United States Fifth Circuit Court of Appeals in Menendez v. Wal-Mart Stores, Inc.: The federal diversity statute, 28 U.S.C. § 1332(a)(2), states that federal courts have jurisdiction over all civil actions between citizens of a state and citizens or subjects of a foreign state where the amount in controversy exceeds $75,000. The party seeking to invoke federal jurisdiction has the burden to prove by a preponderance of the evidence that federal jurisdiction exists. The basis for diversity jurisdiction must be “distinctly and affirmatively alleged.” This court has stated that a failure to adequately allege the basis for diversity jurisdiction “mandates dismissal.” Any “doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.” 2 This Court has the independent obligation to ensure its own subject matter jurisdiction and routinely screens all new filings for jurisdiction. 28 U.S.C. § 1653 permits amendment of technically defective jurisdictional allegations.3 Accordingly, the following Notice of Requirements for Diversity Jurisdiction applies to all initiating complaints and notices of removal (the citizenship provisions also apply to Fed. R. Civ. P. 7.1(a)(2) diversity jurisdiction statements)4 filed in civil cases assigned to Magistrate Judge Wilder-Doomes for which the Court’s jurisdiction is alleged to exist pursuant to 28 U.S.C. § 1332. II. Citizenship “[28 U.S.C. § 1332] requires complete diversity, meaning that a federal court may not exercise diversity jurisdiction if any one of the plaintiffs is a citizen of the same state as any one of the defendants. The federal removal statute, 28 U.S.C. § 1441, allows defendants to remove an action to federal court if the federal 1 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). 2 364 Fed.Appx. 62, 65 (5th Cir. 2010) (internal citations omitted). 3 28 U.S.C. § 1653 provides: “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” See Menendez, 364 Fed.Appx. at 66 (finding that the district court did not abuse its discretion in permitting amendment of the notice of removal to allege facts supporting diversity jurisdiction and holding: “In granting the defendants leave to amend their removal notice, the district court relied on 28 U.S.C. § 1653, which grants courts the authority and discretion to allow parties to cure defective allegations of jurisdiction. The district court correctly observed that § 1653 should be liberally construed to allow a party to cure technical defects, including the failure to specifically allege the citizenship of the parties.”). See also, Blakeley v. United Cable Sys., 105 F.Supp.2d 574, 578–79 (S.D. Miss. 2000) (string cite). 4 Federal Rule of Civil Procedure 7.1(a)(2) requires a party or intervenor in an action in which jurisdiction is based on diversity under 28 U.S.C. § 1332(a) to file a disclosure statement that names−−and identifies the citizenship of−−every individual or entity whose citizenship is attributed to that party or intervenor. The disclosure statement must be filed with a party or intervenor’s first appearance after the action is filed in or removed to federal court. In removed cases, all parties who have made an appearance in the originating court, including the plaintiffs, must file a diversity jurisdiction statement. Effective October 9, 2023 district court would have original jurisdiction based on diversity of citizenship and no defendant “is a citizen of the State in which such action is brought.”5 For the Court to determine if there is complete diversity of citizenship, the citizenship of all parties shall be adequately pleaded as follows: A. The citizenship of an individual is determined by the individual’s domicile.6 “[A]n allegation of residency alone ‘does not satisfy the requirement of an allegation of citizenship.’”7 An example of an adequate allegation of citizenship for an individual is: “John Smith, an individual, is domiciled in the state of ___ and is a citizen of that state for diversity purposes.” B. The citizenship of a corporation is determined by place of incorporation AND principal place of business, and both must be affirmatively alleged.8 Merely alleging that a corporation “is a citizen of ____,” is insufficient. An example of an adequate allegation of citizenship for a corporation is: “ABC, Inc. is a corporation incorporated in the state of ___, with its principal place of business in the state of ___.” C. The citizenship of an unincorporated association, including a limited liability company, a general partnership, and a limited partnership, is determined by the citizenship of all its members.9 Each member of a limited liability company or partnership must be specifically identified and citizenship alleged as to each.10 This may require going through several layers of entities to identify citizenship, such as if a party is an LLC that has members that are also LLCs. General allegations that do not specifically identify each member are insufficient. An example of an adequate allegation of citizenship for an LLC is: “XYZ, LLC is a limited liability company. Its members are [name every member and allege each member’s citizenship with specificity.].” D. Negative or ambiguous allegations of citizenship, i.e., John Smith or ABC, Inc. is “not a citizen of Louisiana” or “is a citizen of a state other than Louisiana,” are insufficient.11 E. The citizenship of parties seeking to intervene or parties to be joined must be adequately alleged when leave is sought. F. If a case is removed solely by a party who is not a defendant that was named by the plaintiff in the state court petition, but which claims to be the correct defendant, then the citizenship of both the removing party and the named defendant must be adequately alleged.12 Alternatively, if the plaintiff 5 Menendez, 364 Fed.Appx. at 65 (internal citations omitted). 6 Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974). 7 MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313-14 (5th Cir. 2019) (citations omitted). While the Fifth Circuit has noted that “the place of residence is prima facie the domicile,” id., it has clearly held that “[c]itizenship requires not only ‘[r]esidence in fact’ but also ‘the purpose to make the place of residence one’s home,’” and therefore residency allegations, standing alone, do not satisfy the requirement of an allegation of citizenship. Id. 8 See Getty Oil, Div. of Texaco v. Ins. Co. of North America, 841 F.2d 1254, 1259 (5th Cir. 1988). 9 Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). 10 Nunez v. ACE Am. Ins. Co., No. 17-1593, 2017 WL 6997341, at *4 (M.D. La. Dec. 28, 2017), report and recommendation adopted, No. 17-1593, 2018 WL 493398 (M.D. La. Jan. 16, 2018). 11 Truxillo v. American Zurich Ins. Co., No. 16-369, 2016 WL 6987127, at *6 (M.D. La. Oct. 24, 2016). 12 De Jongh v. State Farm Lloyds, 555 Fed. Appx. 435, 437 (5th Cir. 2014). 2 agrees that the wrong defendant was named, the plaintiff may file an amended complaint that substitutes the correct defendant. The court has issued many briefing orders explaining this issue.13 G. The case must be remanded if the party who invokes this Court’s diversity jurisdiction fails to adequately establish the citizenship of all parties. III. Amount in Controversy (“AIC”) “A plaintiff’s allegation that the matter in controversy exceeds the jurisdictional amount requirement is sufficient to meet the amount in controversy test unless challenged.” 14 That said, “[p]laintiffs in Louisiana state courts, by law, may not specify the numerical value of the damage claim…In such a situation, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000…The defendant may make this showing in either of two ways: (1) by demonstrating that it is ‘facially apparent’ that the claims are likely above $75,000, or (2) ‘by setting forth the facts in controversy—preferably in the removal petition, but sometimes by affidavit—that support a finding of the requisite amount.’”15 For the Court to determine whether subject matter jurisdiction exists under 28 U.S.C. § 1332, an AIC that is likely to exceed $75,000, exclusive of interest and costs must be adequately alleged. A. In complaints, the following are examples of statements that adequately allege the AIC: “The amount in controversy in this case exceeds $75,000, exclusive of interest and costs,” or, “The Plaintiff seeks recovery of/ has damages of $[an amount in excess of $75,000] in this case.” B. Notices of removal that have the following evidence attached have generally been found to adequately allege AIC: 1. A state court petition that contains a statement by the plaintiff pursuant to La. Code Civ. P. art. 893 that his/her damages exceed the amount required for federal jurisdiction, or that affirmatively alleges that the plaintiff’s damages exceed $75,000, exclusive of interest and costs;16 or that seeks wrongful death and/or survival damages; and/or, 2. A pre-removal settlement demand made in good faith by the plaintiff for an amount more than $75,000, exclusive of interest and costs (Note: if the demand is one for “policy limits,” there must be evidence that the plaintiff was aware of the limits at the time of the demand); and/or, 3. A plaintiff’s response to a pre-removal request for admission or interrogatory in which the plaintiff unequivocally admits/affirmatively responds that the amount in controversy exceeds $75,000 exclusive of interests and costs; and/or, 13 See Breeding v. Hudson Ins. Co., No. 23-372, 2023 WL 4191408, at *1 (M.D. La. June 26, 2023); Still v. USAA Cas. Ins. Co., No. 23-210, 2023 WL 3047370, at *1-2 (M.D. La. Apr. 21, 2023); and Boeker v. United Prop. & Cas. Ins. Co., No. 22-822, 2022 WL 17330461, at *1-2 (M.D. La. Nov. 29, 2022). See also 14 Express Air, Inc. v. Gen. Aviation Servs., Inc., 806 F. Supp. 619, 622 (S.D. Miss. 1992) citing Gibbs v. Buck, 307 U.S. 66, 72 (1939); Dassinger v. South Central Bell Telephone Company, 505 F.2d 672 (5th Cir.1974) (dictum); and Hupp v. Port Brownsville Shipyard, Inc., 515 F.Supp. 546, 548 (S.D. Tex. 1981). 15 Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) citing La. C.C.P. art. 893 (other citations omitted) (emphasis in original). While “summary judgment-type evidence” can be considered in support of removal (see, Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citations omitted , counsel’s arguments or statements in briefs are not “summary judgment-type evidence.” 16 The existence of these two statements in a state court petition renders the AIC “facially apparent.” 3 4. Documents produced in discovery, or obtained from the plaintiff or third parties, including but not limited to medical records (which may be redacted or filed under seal, as applicable and necessary to protect the privacy of the subject of the records), that show plaintiff’s past/future damages are/were/likely will be greater than $75,000, exclusive of interest and costs. C. For notices of removal that allege AIC is met based on the plaintiff’s personal injuries, which do not attach one or more of the types of evidence described in section B above, the following are examples of statements that have been held insufficient to establish AIC, whether asserted individually or in combination: 1. A conclusory statement by the removing defendant that the AIC is met, e.g., “The amount in controversy in this case exceeds “$75,000, exclusive of interest and costs”; and/or, 2. Reliance on a plaintiff’s boilerplate the state court petition/correspondence from counsel, e.g., “Plaintiff seeks damages for past, present, and future: medical expenses, mental anguish, permanent disability, lost wages,” etc.;17 and/or, recitation of damages in 3. General allegations of the plaintiff’s alleged injuries, regardless of the type or nature of the injuries, to his [head/shoulder/neck/back/elbow],” (except wrongful death/survival damages, see above);18 and/or, “Plaintiff has and painful sustained injuries severe e.g., 4. Allegations of diagnoses of herniated and/or bulging discs, and associated spinal diagnoses, and/or treatment consisting of, or recommendations for, MRIs, X-rays, physical therapy, steroid injections, medial branch blocks, and radio frequency ablations, without evidence of sufficient past and/or future medical expenses (i.e., documented medical expenses do not exceed $25,000),19 and/or 17 “Courts have routinely held that pleading general categories of damages, such as ‘pain and suffering, disability, lost wages, loss of earning capacity, medical expenses, etc.,’ without any indication of the amount of the damages sought, does not provide sufficient information for the removing defendant to meet his burden of proving that the amount in controversy is satisfied under the ‘facially apparent’ test.” Davis v. JK & T Wings, Inc., No. 11-501, 2012 WL 278728, at *3 (M.D. La. Jan. 6, 2012) and cited cases. 18 General allegations in the petition of “severe and painful personal injuries” and “permanent and/or partial disability,” and demands for general categories of damages (e.g., past and future physical and mental pain, medical expenses, and lost wages) are insufficient to establish the amount in controversy. Allegations of permanent disability, standing alone with no specification as to the affected body part(s), do not establish that a plaintiff’s claims are likely to satisfy the amount in controversy requirement. See Heaverlo v. Victoria’s Secret Stores, LLC, No. 07-7303, 2008 WL 425575, at *3 (E.D. La. Feb. 8, 2008) (“Although Mrs. Heaverlo alleges permanent disability, that allegation is not sufficient for the Court to retain this case. In Palmer v. Wal–Mart Stores, Inc., No. Civ. 95–1723, 1996 WL 20862, at *1 (E.D. La. Jan. 17, 1996), the court granted plaintiff’s motion to remand even when plaintiff alleged that she sustained severe and possibly permanent injuries, because her allegations were ‘fairly ‘vanilla’’ and did not reveal the extent of her injuries. Mrs. Heaverlo’s allegations are similarly commonplace. Given the accident described in the petition and the lack of evidence as to plaintiffs’ likely damages, the Court finds that defendants have not satisfied their burden of showing by a preponderance of the evidence that more than $75,000 was in controversy at the time of removal.”). 19 See Autin v. Cherokee Ins. Co., No. 20-528, 2020 WL 7974292, at *4 (M.D. La. Dec. 7, 2020), report and recommendation adopted, No. 20-528, 2021 WL 41073 (M.D. La. Jan. 5, 2021) (case remanded sua sponte for failure to adequately establish amount in controversy); McFarland v. Nat’l Interstate Ins. Co., No. 21-314, 2021 WL 5629263, at *5 (M.D. La. Nov. 15, 2021), report and recommendation adopted, No. 21-314, 2021 WL 5629229 (M.D. La. Nov. 30, 2021) (case remanded sua sponte for failure to adequately establish amount in controversy); Taylor v. Old Republic Ins. Co., No. 21-369, 2022 WL 264887, at *4 (M.D. La. Jan. 6, 2022), report and recommendation adopted, No. 21-369, 2022 WL 264540 (M.D. La. Jan. 27, 2022) (case remanded sua sponte for failure to adequately 4 5. The plaintiff’s failure to include in the petition a La. Code Civ. P. art. 893 allegation that federal court jurisdiction is lacking due to insufficient damages, e.g., “The amount in controversy is established in this case due to the Plaintiff’s failure to include a statement in her Petition that her damages do not exceed [the federal jurisdictional amount/$75,000] as required by La. C.C.P. art. 893”;20 and/or 6. The plaintiff’s failure to stipulate that his/her damages do not exceed $75,000, either with or without the proffered stipulation attached, e.g., “Defendant presented to Plaintiff a damage stipulation that Plaintiff’s alleged damages are less than $75,000.00, exclusive of interest and court costs, which Plaintiff refused to sign. Plaintiff’s refusal to sign demonstrates that the amount in controversy exceeds $75,000”;21 and/or, 7. Citations to state or federal court damage awards involving trials, e.g., “In Plaintiff versus Defendant XYZ Company, (19th JDC), the plaintiff was injured in a motor vehicle accident and was awarded $120,000 for injuries and treatment consisting of two bulging discs, a concussion, chiropractic care over ten months, and three steroid injections.”22 establish amount in controversy); Allen v. Manufacturers Allegiance Ins. Co., No. 20-778, 2021 WL 2374319, at *5 (M.D. La. Apr. 23, 2021), report and recommendation adopted sub nom. Allen v. Manufacturers’ All. Ins. Co., No. 20-778, 2021 WL 2371507 (M.D. La. June 9, 2021) (case remanded sua sponte for failure to adequately establish amount in controversy); Hill v. DG Louisiana, LLC, No. 21-325, 2022 WL 3146554, at *5 (M.D. La. July 1, 2022), report and recommendation adopted, No. 21-325, 2022 WL 3142339 (M.D. La. Aug. 5, 2022) (case remanded sua sponte for failure to adequately establish amount in controversy); and Jaral v. Amica Mut. Ins. Co., No. CV 22-237- SDD-EWD, 2023 WL 2639287, at *4-6 (M.D. La. Feb. 27, 2023), report and recommendation adopted, No. CV 22- 237-SDD-EWD, 2023 WL 2639271 (M.D. La. Mar. 24, 2023) (case remanded for failure to adequately establish amount in controversy). 20 See Ford v. State Farm Mut. Auto. Ins. Co., No. 08-403, 2009 WL 790150, at *4 (M.D. La. Mar. 25, 2009) (noting: “…all three U.S. District Courts in the State of Louisiana have recognized that the failure to include an Article 893 stipulation alone is insufficient to establish that the jurisdictional minimum is in controversy. See, Weber v. Stevenson, No. 07-595, 2007 WL 4441261 (M.D. La. Dec. 14, 2007) (“While the failure to include an allegation in the state court petition that one’s damages are less than the federal jurisdictional minimum in accordance with La. C.C.P. art. 893 is entitled to ‘some consideration, it is not, in and of itself, determinative of the amount in controversy. A finding that the failure to include the ‘893’ allegation resulted in the satisfaction of the jurisdictional minimum would be tantamount to finding that subject matter jurisdiction may obtain from a procedural omission, which is unsupportable).”). 21 See Rodney v. Waffle House, Inc., No. 18-481, 2018 WL 6829041, at *8 (M.D. La. Oct. 22, 2018), report and recommendation adopted, No. 18-481, 2018 WL 10809995 (M.D. La. Dec. 18, 2018) (“As an initial matter, there is no indication that Defendant ever requested that Plaintiff execute a stipulation regarding the amount in controversy prior to removal. Even assuming, arguendo, that Plaintiff actually refused to stipulate that the amount in controversy was less than $75,000 prior to removal, this Court has explained that a plaintiff is under no legal obligation to sign such a stipulation, and that the failure to stipulate is but one factor that the court may consider when analyzing whether the amount in controversy is present.”) (citations omitted). See also Lowe v. State Farm Fire & Cas. Co., No. 07- 7454, 2008 WL 906311, at * 2 (E.D. La. April 2, 2008) (“State Farm emphasizes both in the notice of removal and in its opposition that Plaintiffs did not file a pre-removal binding stipulation regarding the amount in controversy. However, Plaintiffs’ failure to do so does not relieve the removing party of its burden to establish that the jurisdictional minimum is satisfied.”). 22 See Silva v. Hartford Ins. Co. of the Midwest, No. CV 15-5844, 2016 WL 4501288, at *5 (E.D. La. Aug. 29, 2016) (“Overall, Defendant’s argument that the amount in controversy is satisfied by citing two Louisiana state court cases with highly individualized facts different from the facts at issue here is unconvincing. Because the fact finder has discretion in determining an appropriate amount of damages based upon the facts of each individual case, monetary awards in previous cases are not sufficient to meet Defendant’s burden of establishing that the amount of controversy 5 D. In notices of removal that allege that the AIC is met based upon a claim for breach of an insurance contract, the AIC will generally NOT be adequately pleaded if the removing defendant only alleges the amount of the policy limits at issue (with or without providing a copy of the policy) and/or relies on the plaintiff’s unquantified allegations of damages in the petition, e.g., “excessive wind/hail damage, major damage to the roof,” etc. 23 Information that has been found to adequately allege AIC in breach of insurance contract cases include: 1. A state court petition that demands damages in an amount that exceeds $75,000, exclusive of interest and costs; and/or, 2. A pre-removal settlement demand for an amount exceeding $75,000, exclusive of interest and costs. Note: A pre-removal demand for “policy limits” that does not specify the amount of the limits in the demand, standing alone, does not adequately allege AIC UNLESS there is evidence that the plaintiff knew the policy limits exceeded $75,000 at the time of the demand and the demand is a good faith estimate of the plaintiff’s damages; and/or, 3. A repair or appraisal estimate that documents repair costs that would exceed $75,000, exclusive of interest and costs with or without including applicable penalties and fees; AND a statement of all amounts previously paid under the policy to the plaintiff, if any. E. Requests for jurisdictional discovery regarding the amount in controversy are generally denied as a matter of course.24 As one court noted, “[i]f the removing defendant does not have facts sufficient to support removal when the original petition is received, it is the removing defendant’s responsibility to discover those facts before effecting removal. That is precisely why the ‘other paper’ removal rule exists, to ensure that removals will not be filed ‘before their factual basis can be proven [by the removing defendant] by a preponderance of the evidence.’”25 F. The case must be remanded if the party who invokes this Court’s diversity jurisdiction fails to adequately establish the amount in controversy. here is greater than $75,000. The Defendant must point to facts in this case that establish that the actual amount in controversy exceeded $75,000. Moreover, the damages awards cited by Defendant are based on the entire record after trial, whereas subject matter jurisdiction determinations must only be based on the jurisdictional facts that exist at the time of removal. This point is especially salient when the Plaintiff’s particular alleged injury cannot be broadly generalized and compared across different plaintiffs with ‘similar’ injuries, and when such an injury can result in widely ranging damages awards that do not always satisfy the amount in controversy requirement.”). 23 See Ford v. State Farm Mut. Auto. Ins. Co., No. 08-403, 2009 WL 790150, at *3 (M.D. La. Mar. 25, 2009) (“It is the actual value of [the plaintiff’s] claimed damages that is relevant to the amount in controversy determination, not his ‘potential recovery’ based upon the alleged value of the underlying insurance policy.”) (citation omitted); Chapman v. Essex Ins. Co., No.:12-520, 2013 WL 12137884, at *5 (E.D. Tex. Apr. 4, 2013) (“The policy itself is unhelpful in this instance because the value of the underlying claim, not the policy limit, determines the amount in controversy.”) (citations omitted); and Jiminez v. Allstate Vehicle & Prop. Ins. Co., No. 20-6, 2020 WL 6123136, at *2 (W.D. Tex. Feb. 24, 2020) (denying remand and holding that a demand for covered property damage, plus statutory penalties and attorney’s fees was sufficient to establish AIC). 24 See, e.g., Hopkins v. Crown Assocs., LLC, No. 18-595, 2018 WL 8496020, at *8 (M.D. La. Oct. 25, 2018), report and recommendation adopted sub nom., Hopkins v. Crown Associated, LLC, No. 18-595, 2019 WL 1199470 (M.D. La. Mar. 14, 2019). 25 Bonvillian v. National Liability & Fire Ins. Co., No. 16-1708, 2017 WL 892311, at *3 (W.D. La. Feb. 1, 2017), quoting Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002 . The Fifth Circuit has repeatedly cautioned against protective removals and has established timing rules that allow a defendant to engage in discovery regarding the amount in controversy before filing a notice of removal. Chapman v. Powermatic, Inc., 969 F.2d 160, 162 (5th Cir. 1992); Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 400 (5th Cir. 2013); Bosky, 288 F.3d at 211. 6