Case 2:13-cv-06621-KDE-KWR Document 1 Filed 12/11/13 Page 1 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

TINA SIMS and ROSALIE K. ARNONE

CIVIL ACTION NO.

VERSUS

JUDGE:

DAVID M. POLASEK, MAGISTRATE: WERNER ENTERPRISES, INC., and ACE AMERICAN INSURANCE COMPANY JURY TRIAL ****************************************************************************** NOTICE OF REMOVAL TO: THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA: NOW INTO COURT, through undersigned counsel, come Defendants, David M. Polasek, Werner Enterprises, Inc. and ACE American Insurance Company, who with respect represent: 1. On October 17, 2013, Plaintiffs, Tina Sim and Rosalie K. Arnone, filed a Petition for Damages against David M. Polasek, Werner Enterprises, Inc. and ACE American Insurance Company, in the 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana, in the cause entitled Tina Sims, et al. v. David M. Polasek, et al., and bearing Docket No. 20130003239, Division C,a copy of which is attached hereto as Exhibit 1. 2.

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Plaintiffs requested service of process on David M. Polasek through Long-Arm Service, and the state court record currently contains no return of service. 3. Plaintiff requested service of process on Werner Enterprises, Inc. through its registered agent for service of process, and this company was served on October 25, 2103. 4. Plaintiff requested service of process on ACE American Insurance Company through the Louisiana Secretary of State, and this company was served on October 29, 2013. 5. As undersigned counsel will represent all Defendants to this action, once properly served, all Defendants agree to removal of Plaintiffs lawsuit to the United States District Court for the Eastern District of Louisiana. 6. La. C.C.P. art. 893 specifically prohibits the pleading of the amount of monetary damages sought, and Plaintiffs Petition for Damages did not set forth the specific amount of damages sought. However, Plaintiffs Petition for Damages does not comply with the Louisiana Code of Civil Procedure. More specifically, the Petition for Damages is deficient in that it did not contain a general allegation that the claims were more or less than the requisite amount for federal court diversity jurisdiction, as is specifically required by Art. 893 of the Louisiana Code of Civil Procedure. 7. Plaintiffs Petition neither set forth the general allegation as to whether their claims were more or less than the requisite amount for federal court diversity jurisdiction as La. C.C.P.

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Article 893 requires. Nor was it facially apparent from plaintiffs Petition that the requisite amount in controversy for federal court diversity jurisdiction existed. Accordingly, the

undersigned counsel requested that plaintiffs counsel provide any information which would indicate the nature and extend of the alleged injuries arising from the subject accident, including but not limited to the medical records of treatment the plaintiff received as a result of the injuries allegedly sustained thereby. 8. On November 19, 2013, for the first time, undersigned counsel received medical records of the plaintiffs treatment allegedly associated with this accident from plaintiffs counsel, which revealed the following information: 9. Plaintiff, Tina Sims did undergo an anterior cervical discectomy and fusion at vertebral levels C3/4, C4/5 and C5/6, on July 18, 2013, at which time an interbody structural cage and cervical plates were placed at those same levels. (An Operative Report detailing that procedure is attached hereto as Exhibit 2.) 10. In addition, Paragraphs 10 and 11 of the Plaintiffs Petition for Damages further alleged that Sims and Arnone, respectively, suffered damages including: Physical pain and suffering, past and future, resulting from the collision Medical expenses, both past and future Mental Anguish and distress, past and future Loss of enjoyment of life Loss Wages, both past and future

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Impairment of Wage Earning Capacity 11. Based upon the medical records forwarded by plaintiffs counsel, and upon the admission of plaintiffs counsel, it reasonably appears that the damages claimed by the Plaintiff, Tina Sims, may exceed the sum of $75,000, exclusive of interest and costs. Louisiana courts have held that damages in cases with injuries similar to those of Tina Sims have exceeded this amount. For example, despite pre-existing back problems, a plaintiff was awarded $250,000.00 in general damages after undergoing a lumbar fusion, and then a second lumbar surgery due to an infection to the same disc area. Meyer v. Tufaro, 934 So.2d 861 (La. App. 4th Cir. 6/7/06). Another plaintiff was awarded $350,000.00 in general damages after undergoing surgery to repair a herniated disc, and with her doctors testimony that a second surgery would be required. Wood v. American National Property & Casualty Co., 1 So.3d 764 (La. App. 3rd Cir. 12/23/08). 12. Based upon the allegations set forth by Plaintiffs in their Petition for Damages and the medical records received, Defendants aver that the damages claimed by the Plaintiff, Tina Sims, might exceed the sum of $75,000, exclusive of interest and costs. 13. Defendants further submit that, should it be determined that the amount in controversy concerning the claims of Tina Sims exceeds $75,000, but that the claims of Rosalie K. Arnone do not, then pendent party jurisdiction before this Court is appropriate. 14. This Notice of Removal is, therefore, filed within thirty days of receipt of the first paper from which it could be ascertained that the case was removable, on November 19, 2103.

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15. Plaintiff, Tina Sims, is alleged in the Petition for Damages to be a resident and citizen of the State of Louisiana. 16. Plaintiff, Rosalie K. Arnone, is alleged in the Petition for Damages to be a resident and citizen of the State of Louisiana. 17. Defendant, David K. Polasek, is alleged in the Petition for Damages to be a resident of the State of Texas. 18. Defendant, Werner Enterprises, Inc., is alleged in the Petition for Damages to be a foreign corporation. 19. Defendant, ACE American Insurance Company, is alleged in the Petition for Damages to be, and is in fact, a foreign insurance company. 20. Accordingly, there exists complete diversity between all plaintiffs and all defendants. As of the date of this filing of this Notice of Removal, plaintiff has not named any other defendants. 21. In accordance with the foregoing, this is a civil action over which this court has original jurisdiction pursuant to 28 U.S.C. 1332(a), and is one which may be removed to this court by defendants pursuant to 28 U.S.C. 1441 in that it is a civil action wherein the matter in

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controversy exceeds $75,000, exclusive of interest and costs, and is between citizens of different states. 22. In accordance with 28 U.S.C. 1446(d), Defendants will provide appropriate notice of this removal to Plaintiffs and to the Clerk of Court for the Civil District Court for the Parish of Orleans, State of Louisiana. JURY DEMAND Defendants are entitled to and request a trial by jury on all issues herein. WHEREFORE Defendants, David M. Polasek, Werner Enterprises, Inc. and ACE American Insurance Company, pray that the action filed in the 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana, in the cause entitled Tina Sims, et al. v. David M. Polasek, et al., and bearing Docket No. 2013-0003239, Division C, be removed from that state court docket to the United States District Court for the Eastern District of Louisiana.

Respectfully submitted: PERRIER & LACOSTE, LLC

s/ Brian E. Sevin, Sr.

___________________________________ GUY D. PERRIER, #20323 BRIAN E. SEVIN, SR., #21872 365 Canal Street, Suite 2550 New Orleans, Louisiana 70130 Tel: (504) 212-8820 Fax: (504) 212-8825 Email: gperrier@perrierlacoste.com Direct Dial: (504) 212-8822 Email: bsevin@perrierlacoste.com Direct Dial: (504) 212-8827 ATTORNEYS FOR DEFENDANTS,

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DAVID M. POLASEK, WERNER ENTERPRISES, INC. AND ACE AMERICAN INSURANCE COMPANY CERTIFICATE OF SERVICE I hereby certify that the foregoing pleading has been delivered to all counsel of record, either through the CM/ECF system, depositing a copy of same in the United States mail, first class postage prepaid, by hand delivery or by facsimile transmission, this 11th day of December, 2013, at their last known address of record.

s/ Brian E. Sevin, Sr.

______________________________ BRIAN E. SEVIN, SR.

F:\Client Files\Active Files P&L\51291 - GDP\PLEADINGS\Notice of Removal.Federal.doc