Allen v. J.C. Penney Co.

Full title: OPHELIA ALLEN v. J.C. PENNEY CO., INC., ET AL

Court: United States District Court, E.D. Louisiana

Date published: Apr 12, 2000

CIV. NO. 99-1940 SECTION "G" (E.D. La. Apr. 12, 2000)

Opinion

CIV. NO. 99-1940 SECTION "G".

April 12, 2000

MEMORANDUM AND ORDER

MOREY L. SEAR, Judge.

Background

Plaintiff filed suit against J.C. Penney Co., Inc. and its insurer, Liberty Mutual Ins. Co. ("J.C. Penney" or "defendants") in the 32^nd judicial District Court, Parish of Terrebonne as a result of an accident which occurred on November 11, 1998. Plaintiff alleged that on that date she was a customer in the J.C. Penney store at the Southland Mall Shopping Center in Houma, Louisiana when a clothing rack fell on top of her causing her personal injuries, as a result of which she has incurred ongoing medical treatment, pain and suffering and lost wages. Consistent with Louisiana Code of Civil Procedure article 893(A)(1), plaintiff did not claim a specific amount of damages.

Defendants removed the action to federal court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332.

Plaintiff now moves to remand the action to state court on grounds that the amount in controversy does not exceed the jurisdictional amount of $75,000 exclusive of interest and costs. Defendant opposes the motion. Plaintiff previously moved to remand the action to state court, but I denied the motion on grounds that the post-removal evidence offered to clarify the amount in controversy did not adequately suggest that the amount in controversy, exclusive of interest and costs, was less than $75,000.¹ plaintiff submits new evidence with this renewed motion.

1 See Minute Entry dated January 12, 2000.

Analysis

Defendants contend that removal is proper under 28 U.S.C. § 1441 because the court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. For a district court to have original jurisdiction over an action founded on diversity of citizenship, the parties must be of diverse citizenship and the amount in controversy must exceed the sum or value of $75,000, exclusive of interest and costs.² It is undisputed that diversity exists. The issue is whether the amount in controversy requirement is satisfied.

2 See 28 U.S.C. § 1332(a).

The removing party bears the burden of establishing the existence of federal jurisdiction.³ When, in alleged diversity cases, the plaintiff has alleged an indeterminate amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount.⁴ Defendant can carry this burden by showing that it is facially apparent that the claims will exceed the jurisdictional amount,⁵ or by setting forth facts in controversy, in the removal petition or by affidavit or other summary judgment type evidence, that support a finding of the requisite amount.⁶ If defendant meets this burden, removal is proper, provided plaintiff cannot show that it is legally certain that his recovery will not exceed the jurisdictional amount.⁷

3 See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5^th Cir. 1995).

4 See DeAguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir.), cert. denied, 516 U.S. 865, 116 S.Ct. 180 (1995).

5 See Allen, 63 F.3d at 1335.

6 De Aguilar, 47 F.3d at 409-12.

7 Id.

The jurisdictional inquiry focuses on the facts supporting jurisdiction as of the time of removal. This does not mean the court may not consider evidence outside the petition, however, for post-removal evidence may be relevant to the facts as they existed at the time of removal, and if it "at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."⁸

8 See 28 U.S.C. § 1447; Allen, 63 F.3d at 1335.

Personal injury cases filed in Louisiana state court which, due to the prohibition by Louisiana Code of Civil Procedure article 893, do not include a specified dollar amount of damages, continue to create a jurisdictional quandary for removal courts. Despite an effort to be consistent in the analysis of these cases, the determination of jurisdictional amount often boils down to some particular allegation or circumstance present in one case but not another.

It is undisputed that the nature of the alleged injury to plaintiff is aggravation of a preexisting back problem for which she will receive conservative, non-surgical treatment.⁹ Defendant has cited three cases in which courts have awarded $50,000 in general damages in cases involving aggravation of preexisting back conditions,¹⁰ and points out that plaintiff already claims $21,000 in medical expenses, bringing the amount in controversy close to or in excess of the jurisdictional amount. At least two of those cases involved incidents of more injurious magnitude than plaintiff's, and in the third case a general damage award was increased from approximately $13,000 to $52,000 specifically in view of the special damages that totaled over $130,000.

9 See, e.g., Exhibit 1 to Plaintiff's February 7, 2000 motion to remand.

10 See February 29, 2000 Opposition to Motion to Remand.

Plaintiff has now filed a stipulation that her damages do not exceed $75,000 exclusive of interest and costs. Although such stipulations are not dispositive in every case, here I find that the stipulation should be factored into the determination, considering the allegations, evidence before me, and conversations with counsel at two prior conferences.

For the foregoing reasons, after considering all of the evidence, I find that defendant has failed to prove by a preponderance of the evidence that plaintiff's claims exceed the jurisdictional amount.

Accordingly,

IT IS ORDERED that plaintiff's motion to remand IS GRANTED and this action IS HEREBY REMANDED to the 32d Judicial District Court for the Parish of Terrebonne, Louisiana.