Opinion
No. 00-3095
February 8, 2001
ORDER AND REASONS
Before the Court is plaintiffs' motion to remand this action to state court pursuant to 28 U.S.C. § 1447 (c). For the following reasons, the Court grants plaintiffs' motion.
I. Background
On August 9, 1999, a truck overturned and spilled chemicals at the intersection of Benefit and Alvar Streets, near the Desire Housing Development in New Orleans. Plaintiffs resided in the Desire Housing Development and evacuated the area after the spill. The City of New Orleans later launched a formal evacuation and cleanup.
Ivory Butler and six of her children filed a class action petition in the Civil District Court for the Parish of Orleans, Louisiana on August 7, 2000. They allege that the spill released toxic chemicals into the environment, causing residents in the surrounding area to become ill and seek treatment. As a consequence of defendants' alleged negligence, plaintiffs contend that they endured pain and suffering, mental anguish, loss of earnings capacity and wages, medical expenses, and court costs.
Defendants Cytec Industries, Inc. and Carolina National Transportation Company removed this matter to federal court on October 19, 2000, asserting federal diversity jurisdiction. plaintiffs now move to remand this case to state court. They argue that defendants have not proved that the amount in controversy exceeds $75,000.
II. Discussion
Generally, a defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction. See 28 U.S.C. § 1441 (a). "The removing party bears the burden of establishing that federal jurisdiction exists" at the time of removal. De Aguilar V. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). See also Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) ("[T]he jurisdictional facts that support removal must be judged at the time of removal."). The Court must remand the matter, however, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." See 28 U.S.C. § 1447 (c).
Louisiana law prohibits plaintiffs from pleading a specific amount of monetary damages. See LA. CODE Civ. PROC. art. 893. Accordingly, 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 plaintiffs' individual actual damages and individual punitive damages exceed $75,000. HD Tire Auto.-HardWare, Inc. V. Pitney Bowes, Inc., 227 F.3d 326, 329 (5th Cir. 2000); Allen, 63 F.3d at 1335. A defendant satisfies this burden when it is "facially apparent that the claims are likely above [$75,000]." Allen, 63 F.3d at 1335. In the alternative, a defendant may set "forth the facts in controversy — preferably in the removal petition, but sometimes by affidavit — that support a finding of the requisite amount." Id. Conclusory allegations, however, are not sufficient. See id. Instead, a defendant "must produce evidence that establishes that the actual amount in controversy exceeds [$75,000]." De Aguilar, 47 F.3d at 1412. See also Allen, 63 F.3d at 1336 (A district court can "require parties to submit summary-judgment-type evidence.") When attempting to determine the amount in controversy, a court may use such factors as the number of plaintiffs in the class action, the number of defendants, and the nature and extent of the harm done. See Allen, 63 F.3d at 1336. A court must look beyond the "vanilla" allegations a plaintiff brings and seek to determine the injuries and the individuals involved. See Seaman v. Tetra Applied Techs., 2000 WL 222851, at *2 (E.D. La. Feb. 18, 2000) ("These allegations are "fairly vanilla' and in no way indicate the severity of Plaintiff's injuries. The amount in controversy is, therefore, not facially apparent from the complaint.").
Here, the allegations in plaintiffs' petition for damages do not quantify or indicate the severity of their injuries. Accordingly, it is not facially apparent that the amount in controversy exceeds the jurisdictional threshold. Moreover, defendants present no evidence to the Court that the actual amount in controversy exceeds $75,000. There is no evidence that the spilled chemicals were even toxic, let alone the extent of the injuries suffered or the medical expenses incurred. The only evidence that defendants offer is a citation to a famous 1997 Louisiana class action awarding extraordinary compensatory and punitive damages in a case involving a train tank car leakage and fire. In re New Orleans Train Car Leakage Fire Litigation, 702 So.2d 677 (La. 1997). Merely citing an extreme case with an award of stratospheric damages, however, does not satisfy defendants' burden of proving by a preponderance of the evidence that the actual amount in controversy exceeds $75,000. See De Aguilar, 47 F.3d at 1412. Furthermore, the Court questions whether the New Orleans train car leakage fire litigation even presents a similar factual scenario. Here, there are no allegations of a fire or even a suggestion that the chemicals involved or the exposure to them were the same.
The Court also rejects defendants' assertion that plaintiffs' potential punitive damages satisfy the jurisdictional threshold. First, plaintiffs do not quantify their demand for punitive damages in their petition. Second, defendants present no evidence that would enable the Court to quantify plaintiffs' punitive damages. Third, "punitive damage claims of a putative class cannot be aggregated and attributed to each plaintiff to meet the jurisdictional requirement." HD Tire Auto.-Hardware, Inc., 227 F.3d at 330. Accordingly, even if the Court were to assume plaintiffs merited substantial punitive damages, the Court is unable to calculate the amount in controversy foreach plaintiff because plaintiffs' petition does not specify the number of persons in the putative class. See id. at 329-30. Fourth, even if the Court could quantify plaintiffs' punitive damages, the Court notes that the Louisiana Legislature repealed the article providing punitive damages for injuries caused by the wanton or reckless disregard of public safety in the storage, handling, or transportation of hazardous or toxic substances. LA. Civ. CODE art. 2315.3 (repealed). As defendants conceded at oral argument, the only basis to award punitive damages is under article 2315.4 if the driver of the chemical truck were intoxicated and his intoxication was a cause in fact of the resulting injuries. Id. art. 2315.4. In the absence of any such allegations or substantiating evidence, there is no apparent factual predicate for any award of punitive damages.
The Court further finds that plaintiffs' claim for attorneys' fees does not fulfill the amount in controversy requirement. It is true that, under Louisiana law, attorney fees associated with class actions such as this one are attributable solely to the representative parties, and, under Fifth Circuit law, these attorney fees may be considered when determining whether the jurisdictional amount is satisfied. See HD Tire Auto.-Hardware, Inc., 227 F.3d at 330 (5th Cir. 2000) (citing Free v. Abbott Labs. (In re Abbott Labs.), 51 F.3d 524, 526-27 (5th Cir. 1995), afff'd by an equally divided court, 529 U.S. 333, 120 S.Ct. 1578 (2000)). See also La. CODE Civ. PROC. art. 595. Here, however, the Court has not been presented sufficient information to estimate those fees. No evidence has been presented even suggesting how many people are included in the class, and no evidence has been presented to quantify their individual damages.
Therefore, the Court is unable to perform even a rudimentary calculation of attorneys fees that would substantiate asserting diversity jurisdiction. See, e.g., McKnight v. Illinois Cent. R.R., 967 F. Supp. 182, 184-85 (E.D. La. 1997).
III. Conclusion
For the foregoing reasons, the Court grants plaintiffs' motion to remand and remands this case to the Civil District Court for the Parish of Orleans, Louisiana for further proceedings.