Opinion
Civil Action No. 02-1070, Section "T" (4)
June 5, 2002
Before the Court is a Motion to Remand on behalf of the plaintiff, Michael C. Bellotti. The Court, having studied the legal memoranda submitted by the parties, the court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
The plaintiff, Michael C. Bellotti, filed suit in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, State of Louisiana, seeking recovery for injuries he allegedly received while using a Craftsman 10" Radial Arm Saw ("Arm Saw") on April 14, 2001. (Exhibit A, Petition for Damages). The plaintiff allegedly dismembered the tip of his right index finger while using the Arm Saw manufactured by the defendants. (Memorandum in Support of Motion to Remand, 3). The plaintiff contends he sustained the following damages:
A. Past, present and future mental pain and suffering;
B. Past, present and future physical pain and suffering;
C. Permanent scarring and disfigurement; and
D. Medical expenses.
(Exhibit A, ¶ 8).
The plaintiff also seeks recovery under the law of redhibition, which extends liability to defendant for the "return of the purchase price, including interest, as well as costs, penalties and reasonable attorneys' fees," as mandated under article 2545 of the Louisiana Civil Code. (Exhibit A, ¶ 14).
Defendant, Emerson Tool Co., removed the case to the Eastern District of Louisiana on April 10, 2002. Plaintiff then filed this Motion to Remand for lack of subject matter jurisdiction on May 8, 2002.
II. ARGUMENTS OF THE RESPECTIVE PARTIES
A. Arguments of the Defendant in Opposition of the Motion
The defendant maintains the plaintiffs post-removal attempt to reduce damages below the jurisdictional minimum is unavailing. Defendant argues that the plaintiff seeks recovery exceeding $75,000, for medical expenses, mental- and physical-pain and suffering, permanent scarring, and disfigurement. The defendant stresses the plaintiff's separate claim for redhibition noticeably failed to address or limit the claim for attorneys' fees in the Petition for Damages or Motion to Remand. In conclusion, the defendant contends attorneys' fees compounded with a specific injury claim exceed the requisite amount in controversy and satisfy subject matter jurisdiction; thus, the defendant suggests the plaintiffs motion to remand be denied.
B. Arguments of the Plaintiff in Support of the Motion
The plaintiff submits that his sustained injury does not exceed the federal jurisdictional amount of $75,000. As such, the plaintiff contends that this Court lacks jurisdiction under the provisions of 28 U.S.C. § 1332 and the matter should be remanded to state court.
III. LAW AND ANALYSIS
A. Law on Removal and Remand
In this particular case, federal subject matter jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332. The removing party bears the burden of establishing that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995), cert. denied, 516 U.S. 865 (1995). "When the plaintiffs complaint does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds [the jurisdictional amount]." De Aguilar, 47 F.3d at 1409, quoting De Aguilar v. Boeing Co. ("De Aguilar I"), 11 F.3d 55, 58 (5th Cir. 1993). However, the Fifth Circuit stated the preponderance burden forces the defendant to do more than point to state law that might allow the plaintiff to recover more than what is pled. Id. Ultimately, the general rule is, "unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith." De Aguilar, 47 F.3d at 1408.
Jurisdictional facts that support removal must be judged at the time of removal. Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (1995). Moreover, once diversity jurisdiction has attached, it cannot be subsequently divested by the voluntary reduction of the amount in controversy below jurisdiction. See e.g., 28 U.S.C. § 1447 (c); St. Paul Indemnity Co. v. Cab Co., 303 U.S. 283, 289 (1938); Reisman v. New Hampshire Fire Ins. Co., 312 F.2d 17 (5th Cir. 1963); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256 (5th Cir. 1995). Any evidence submitted after the complaint has been filed is allowable only if relevant to the time of removal. Asociacion Nacional de Pescadores v. Dow Quimica de Colombis S.A., 988 F.2d 559 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); De Aguilar, 47 F.3d 1404. Additionally, "a unilateral, post-removal stipulation does not deprive the removal court of jurisdiction." St. Paul Mercury Indemnity Co., 303 U.S. 283 (citation omitted).
The prevailing law in this area was summarized by the Fifth Circuit in the case of Luckett v. Delta Airlines, Inc., as follows:
Several Fifth Circuit decisions have established a clear analytical framework for resolving disputes concerning the amount in controversy. Plaintiffs in Louisiana state courts, by law, may not specify the numerical value of the damage claim. La. Code Civ. P. art. 893. In such a situation, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993). 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." Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) (emphasis in original).
Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
B. The Court's Analysis
Although Louisiana law prohibits plaintiffs from praying for a specific amount of monetary damages in their complaints, the law does allow plaintiffs to include in their complaints a general allegation that the claim exceeds or is less than the requisite amount to establish federal jurisdiction See LA. Code Civ. Proc. Ann. art. 893(A)(1) (West 1999) (citing Pendleton v. Parke-Davis, 2000 WL 1808500, *2 (E.D. La.)). In the present action, the plaintiff stipulated that a Louisiana precedent set forth a damage award as low as $4,000 and as high as $6,500 for a severed finger tip. See e.g., Lartigue v. McElveen, 619 So.2d 207 (La.App. 3rd Cir. 1993) (holding the defendants pay 20% of a $4,000 damage award for plaintiffs severed finger tip while operating a log splitting machine); Richard v. McCrory Corp., 666 So.2d 371 (La.App. 1st Cir. 1995) (holding the four-year-old plaintiff be awarded general damages of $6,500 for a severed finger tip).
Defendants in this action have not presented the Court with evidence in support of the notion that the amount in controversy is actually greater than the jurisdictional amount. See Pendleton, 2000 WL 1808500, *4. First, the defendants argue that because the plaintiff claims violations of the Louisiana Redhibition statute, the plaintiff is entitled to recovery of actual damages as well as reasonable attorney fees. See LSA-C.C. art. 2545 (stating that buyer is entitled to reimbursement of the reasonable expenses occasioned by the sale as well as damages and reasonable attorney fees). Attorney fees are included in calculating the amount in controversy for federal jurisdictional purposes because they are mandatory, rather than discretionary under the Redhibition statute. See H D Tire and Automotive-Hardware, Inc. v. Piney Bowes, Inc., 227 F.3d 326, 330 (5th Cir. 2000) (citation omitted). Therefore the defendants assert that when those attorney fees are added to actual damages incurred by the plaintiff, the amount in controversy exceeds $75,000. Yet, the defendants incorrectly calculate the plaintiffs damages as exceeding the jurisdictional limit on the basis that the plaintiff amputated his entire finger while operating the Arm Saw. (Opposition for Motion to Remand, 6). Although the plaintiff's Petition for Damages stated he "dismembered his right index finger," he only severed the tip of his right index finger with the Arm Saw. (Memorandum in Support of Motion to Remand, 3). Thus, the plaintiffs calculation of a damage award ranging from $4,000 to $6,500 is a reasonable assessment of his recovery excluding attorney fees. See Richard v. McCrory Corp., 666 So.2d 371; Lartigue, 619 So.2d 207.
The alleged damages and claim for redhibition by the plaintiff does not support the requisite monetary basis for federal jurisdiction. As such, this Court must conclude that it is not "facially apparent" that the amount of plaintiffs damages and claim for redhibition exceed $75,000. Thus, the removing party has not established by a preponderance of the evidence that the amount in controversy goes beyond the jurisdictional amount.
Accordingly,
IT IS ORDERED that the motion of the plaintiff, Michael C. Bellotti, to remand the above-captioned matter to the Twenty-Fourth Judicial District Court for the Parish of Jefferson, State of Louisiana, be, and the same is hereby GRANTED.