Opinion
CIVIL ACTION NO. 4:03-CV-18-Y.
June 6, 2003.
ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND
Pending before the Court is plaintiff Patricia Caballero's Motion to Remand [doc. #6-1], filed February 5, 2003. Having carefully considered the motion, response, and reply, the Court concludes that the plaintiff's motion should be GRANTED.
On August 1, 2002, Caballero filed a cause of action against defendant Ecology and Environment Inc. ("Ecology") in the 14th Judicial District Court, Dallas County, Texas. She alleged claims under the Texas Commission on Human Rights Act ("TCHRA") for retaliation and discrimination on the basis of a disability. In her original petition, Caballero sought the following relief:
Caballero is a citizen of Texas and a former employee of Ecology.
Ecology is a New York corporation with its principal place of business in Lancaster, New York.
Pursuant to Chapter 21, §§ 21.258 and 21,2585 and related provisions, Texas Labor Code, plaintiff seeks recovery of back pay, front pay, and compensatory and punitive damages, all in an amount within the jurisdictional limits of this court.
In connection with damages sought under § 21.2585, plaintiff would show that the defendant engaged in an unlawful intentional employment practice in discharging plaintiff.
Under Chapter 21, § 21.259, Texas Labor Code, plaintiff seeks the recovery of attorney's fees, expert fees and costs.
Plaintiff further seeks recovery of such interest, pre-judgment and post-judgment, as is permitted by law, and such other relief as may seem appropriate to the court.
The TCHRA provides for an award of reasonable attorney's fees and expert fees to a prevailing plaintiff. See TEX. LAB. CODE ANN. § 21.259 (Vernon 1996).
Caballero informs that she did not set out in her original petition any monetary amounts in connection with her claims for damages because this is prohibited by Texas law. See TEX. R. Civ. P. 47(b).
(Pl.'s Pet. at 4 (footnotes added).)
On December 12, 2002, Caballero served her initial disclosures on the defendant. With respect to the amount and method of calculating economic damages, she stated:
As a result of her termination, plaintiff has lost her employment and has lost wages at the rate she was being paid prior to taking medical leave from the time of termination to the present. This loss of wages will continue for an as-yet undetermined period into the future. Plaintiff will supplement to provide the amount of loss so far and the projected future loss after she has assembled the necessary financial records to do so.
(Def.'s App. at 2.) In the disclosures, Caballero also stated that an award of attorney's fees will be based on an hourly rate of $250 and the number of hours cannot be determined until close to the trial date. (Def.'s App. at 15.) Furthermore, in the disclosures Caballero identified more than fifty people who had knowledge of facts relevant to her suit and six medical providers who had knowledge of her medical condition. (Def.'s App. at 3-14.)
On December 23, Caballero served her supplemental disclosures on Ecology. With respect to the amount and method of calculating damages, she stated:
There is no precise way to calculate any of plaintiff's damages. However, she does represent that the damages set out in this disclosure are the damages she is seeking, and that she will not seek damages in excess of the amounts set out herein.
Loss of earnings, including back pay and front pay: $22,000, which represents approximately one year of pay at her pay rate in effect at the time of termination.
Emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life: $20,000[.]
Punitive damages for intentional discrimination: $10,000 [.]
Total: $52,000[.]
(Def.'s App. at 18-19.)
Based on the amounts set forth in the supplemental disclosures, Ecology removed the suit to this Court on January 9, 2003. As a basis for removal, Ecology claimed that "this court has original jurisdiction over this action pursuant to 28 U.S.C. § 1332(a), and the action may be removed pursuant to 28 U.S.C. § 1441(a) because the proper parties to this action are citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs." (Def.'s Resp. at 3.)
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove from state court any civil action over which the federal court would have original jurisdiction. Removal on the basis of diversity of citizenship is proper where the case involves citizens of different states and the amount in controversy, exclusive of interest and costs, exceeds $75,000. See 28 U.S.C. § 1332(a) (2002). As the removing party, Defendant bears the burden of establishing the basis for federal jurisdiction. See St. Paul Reinsurance Co., Ltd. v. Greenburg, 134 F.3d 1250, 1253 (5th Cir. 1998). In a case such as this one where the petition does not include a specific monetary demand, the defendant must establish by a preponderance of the evidence that the amount in controversy exceeds $75,000. See Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). "This requirement is met if (1) it is apparent from the face of the petition that the claims are likely to exceed $75,000, or, alternately, (2) the defendant sets forth "summary judgment type evidence" of facts in controversy that support a finding of the requisite amount. Id. If, as here, a "state statute provides for attorney's fees, such fees are included as part of the amount in controversy." Id.; see Foret v. Southern Farm Bureau Life Ins. Co., 918 F.2d 534, 537 (5th Cir. 1990). If the defendant establishes by a preponderance of the evidence that the amount in controversy exceeds $75,000, then removal is proper unless it "appears to a legal certainty that the claim is really for less than the jurisdictional amount." De Aguilar, 47 F.3d at 1412; Johnson v. DirectTV, 63 F. Supp.2d 768, 769-70 (S.D. Tex. 1999). "Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand." Manguno, 276 F.3d at 723.
A corporation is deemed to be a citizen of both its state of incorporation and the state where it has its principal place of business. See 28 U.S.C. § 1332(c)(1) (2003).
"The test is whether it is more likely than not that the amount of the claim will exceed [$75,000]." St. Paul Reinsurance Co., Ltd., 134 F.2d 1250, 1253 fn.13 (5th Cir. 1998).
"To determine whether jurisdiction is present for removal, we consider the claims in the state court petition as they exited at the time of removal." Manguno, 276 F.3d at 723.
In her motion, the plaintiff claims that the case should be remanded because this Court does not have jurisdiction to hear the case since the amount in controversy does not exceed $75,000. The defendant, on the other hand, claims that based on an hourly rate of $250, "Plaintiff's counsel will exceed the $23,000 threshold [needed to exceed $75,000] after investing only 92 hours of his time." (Def.'s Resp. at 6.) The defendant states:
$52,000 in total damages + $23,000 in attorney's fees $75,000.
Defendant's position that Plaintiff's counsel is more likely than not to expend in excess of 92 hours in this matter is further supported by the Initial Disclosures which identify in excess of fifty (50) lay witnesses and six (6) medical providers who provided care to the Plaintiff. While Defendant concedes it is unlikely that all of these law witnesses will be deposed during the course of pre-trial discovery, based on the analysis above of Plaintiff's [two] distinct claims, Defendant contends it is more likely than not that ten to fifteen (10-15) law witnesses and three (3) medical providers will be deposed and/or called to testify at trial.
(Def.'s Resp. at 8-9.) Furthermore, the defendant argues that a jury trial will more likely than not last five days, which would require the plaintiff's attorney to work numerous hours. (Def.'s Resp. at 8.)
The disputed issue is whether the defendant has shown, by a preponderance of the evidence, that the amount in controversy exceeds at least $75,000. The defendant can establish this by (1) showing that it is apparent from the face of the petition that the claims are likely to exceed $75,000; or (2) setting forth "summary judgment type evidence" of facts in controversy that support a finding of the requisite amount. After reviewing the face of the original petition filed by Caballero in state court, the Court is not persuaded that it is apparent from the face of the petition that the claims will more likely than not exceed $75,000. Consequently, the Court must determine if the defendant has set forth "summary judgment type evidence" of facts in controversy that support a finding that the amount in controversy exceeds $75,000. The defendant points to the original petition and the plaintiff's initial and supplemental disclosures to argue that the plaintiff's attorney's fees will more likely than not exceed $23,000, the amount needed in addition to the actual damages claim to invoke federal jurisdiction.
After reviewing the evidence submitted by the defendant, the Court concludes that the defendant has not shown by a preponderance of the evidence that the amount in controversy will exceed $75,000. The defendant's arguments that the plaintiff's attorney will incur over $23,000 in attorney's fees are not persuasive. Although the plaintiff's attorney will undoubtedly need to do discovery, will be involved in depositions, and may potentially have to spend several days in trial, the Court is not persuaded that all of this activity will "more likely than not" require the plaintiff's attorney to expend over 92 hours of work. This case is not a factually complex case involving multiple parties, vastly different causes of action, and damages for acts that occurred over many years. See, e.g., Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (denying the plaintiff's motion to remand because it was facially apparent that the damages would exceed $75,000 where the plaintiff alleged "damages for property, travel expenses, an emergency ambulance trip, a six day stay in the hospital, pain and suffering, humiliation, and her temporary inability to do housework after the hospitalization"); Allen v. RH Oil Gas Co., 63 F.3d 1326, (5th Cir. 1995) (stating that "the total claim for punitive damages is more likely than not to be for $50,000 or more, as it involves three companies, 512 plaintiffs, and a wide variety of harm allegedly caused by wanton and reckless conduct"); Maley v. Design Benefits Plan, Inc., 125 F. Supp.2d 197, 199 (E.D. Tex. 2000). Instead, this case appears to be a relatively straight-forward case involving two similar claims between two individual parties. Because it is not more likely than not that the amount in controversy exceeds $75,000, the Court does not have jurisdiction to hear this case.
Based on the foregoing, it is ORDERED that Caballero's Motion for Remand [doc. #6-1] is GRANTED. The above-styled and numbered cause is REMANDED to the 14th Judicial District Court, Dallas County, Texas, cause no. 02-06872.