Opinion
Civ. No. 99-3677, SECTION: G(2).
February 4, 2000.
MEMORANDUM AND ORDER
Background
Plaintiff, Annette Embry, commenced this personal injury action against Defendants, Najla Muhammad Jannah, Mr. Jannah's insurer, Southern County Mutual Insurance Company ("Southern"), and Plaintiff's insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), in the Civil District Court for the Parish of Orleans, seeking damages for pain and suffering, mental anguish, medical expenses, loss of enjoyment of life and property damage, as well as interest and costs, for neck and back injuries she allegedly sustained in an October 7, 1998 automobile accident with Mr. Jannah. Pursuant to Article 893(A)(1) of the Louisiana Code of Civil Procedure, Plaintiff did not claim a specific amount of damages.
On December 7, 1999, Southern and Mr. Jannah, with the consent of State Farm, timely filed a notice of removal in the Eastern District of Louisiana, alleging diversity jurisdiction. Southern and Mr. Jannah clearly established complete diversity between Plaintiff and the Defendants. In support of their jurisdictional allegation, Southern and Mr. Jannah claimed that "the amount in controversy . . . exceeds $75,000.00." Southern and Mr. Jannah asserted that Plaintiff alleges that she suffered "`severe and disabling injuries to her body and mind, including, but not limited to, neck and back injuries'" and that an MRI of Plaintiff, taken nine months after the accident, reveals that Plaintiff has herniated discs at the C3-4 and C4-5 levels.
On January 6, 2000, Plaintiff, through her attorney, filed an unsworn stipulation in the state court action, averring that "the amount of [Plaintiff's] cause of action does not exceed $75,000.00 exclusive of interest and costs." Plaintiff moves this Court to remand the case to state court, arguing that this Court does not have jurisdiction over the subject matter of this case because the amount in controversy does not exceed the jurisdictional amount required by 28 U.S.C. § 1332.
Discussion
Generally, a defendant may remove a civil action filed in state court if the federal court has original jurisdiction over the subject matter of the case. Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over the subject matter of all actions where (1) the amount in controversy exceeds $75,000.00, exclusive of interest and costs and (2) complete diversity of citizenship exists between the plaintiffs and the defendants.
See 28 U.S.C. S 1441(a).
The removing party bears the burden of establishing the existence of federal jurisdiction. In determining whether the defendant has met its burden with respect to diversity jurisdiction, federal courts examine the jurisdictional facts as of the time of removal.
See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)
See Simon v. Wal-Mart Stores. Inc., 193 F.3d 848, 849 (5th Cir. 1999) (citing Allen, 63 F.3d at 1335; Asociasion Nacional de Pescadores a Pequena Escala o Artesanales de Columbia (ANPAC) v. Dow Quimica de Columbia. S.A., 988 F.2d 559, 565-66 (5th Cir. 1993)).
Recently, the Fifth Circuit articulated a clear framework for evaluating the basis of the jurisdictional amount for diversity jurisdiction in actions removed from Louisiana state courts. In situations where the state court petition for damages fails to claim a specific amount in controversy, the removing party bears the burden of proving by a preponderance of the evidence that the jurisdictional amount exceeds $75,000.00, exclusive of interest and costs. The removing party may meet this burden either by (1) demonstrating that it is "facially apparent" from the complaint that the amount in controversy exceeds the jurisdictional amount or (2) "setting forth facts in controversy — preferably in the removal petition, but sometimes by affidavit — that support a finding of the requisite amount."
See Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
Id.
When examining the complaint to determine whether it is facially apparent that the amount in controversy exceeds the jurisdictional amount, courts look beyond "fairly vanilla" allegations and seek to determine the extent of Plaintiff's injuries. Courts also examine the complaint to determine if plaintiff requested a trial by jury in state court, which requires the claim to be for at least $50,000 in Louisiana.
See Parker v. Millar Elevator Services Co., 2000 WL 64289, at *3 (E.D.La. Jan. 26, 2000) (citing Palmer v. Wal-Mart Stores, Inc., 1996 WL 20862, at *1 (E.D. La. Jan. 17, 1996)).
See Parker, 2000 WL 64289, at *2 (citing La. Code Civ. P. Art. 1732(1))
When the complaint fails to establish that the jurisdictional amount has been met, the removing party must set forth facts in controversy that support a finding that the amount in controversy exceeds $75,000.00, exclusive of costs and interest. To meet its burden, the removing party must do more than direct the Court's attention to state law that might allow recovery over the jurisdictional amount; it "must submit `summary-judgment-type evidence' to establish that the amount in controversy exceeds the jurisdictional amount." Once the removing party meets its burden, the burden shifts to the plaintiff to show with legal certainty that the recoverable amount will not exceed the jurisdictional amount.
De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
See id.
Furthermore, while a plaintiff may not defeat removal by changing the demand after removal of the action, a plaintiff may, however, clarify the amount in controversy at the time of removal with a post-removal stipulation. Even where plaintiff's stipulation is not a sworn affidavit and does not stipulate that plaintiff will not seek more than the jurisdictional amount, district courts may consider the stipulation when determining whether the amount in controversy exceeds the jurisdictional amount.
See ANPAC, 988 F.3d at 565.
See, e.g., Parker v. Millar Elevator Services Co., 2000 WL 64289, at *3 (E.D.La. Jan. 26, 2000); Domangue v. Commodore Cruise Line. Ltd., 1998 WL 205429, at *1 (E.D.La. Apr. 27, 1998)
Here, because Plaintiff's complaint fails to allege a specific amount of damage, Southern and Mr. Jannah must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000.00, exclusive of costs and interest. Turning first to the face of the complaint, I find that it is not facially apparent that the amount in controversy exceeds the jurisdictional amount. Plaintiff alleges that Mr. Jannah improperly changed lanes and struck her vehicle, causing her "severe and disabling injuries to, her body and mind, including, but not limited to, neck and back injuries" and seeks damages for "pain and suffering, mental anguish, medical expenses, loss of enjoyment of life and property damage," as well as costs and interest. Plaintiff's allegations are fairly typical and do not in any way indicate the extent of Plaintiff's injuries or the seriousness of the automobile accident. Plaintiff does not allege that she suffered lost wages or loss of earnings capacity or that she required hospitalization or surgery. Furthermore, Plaintiff did not demand a trial by jury in her complaint, which requires the amount in controversy to exceed $50,000. Therefore, it is not facially apparent from the complaint that Plaintiff's claim exceeds $75,000.00, exclusive of costs and interest.
Because jurisdiction is not apparent from the complaint, Southern and Mr. Jannah must set forth facts in controversy with summary-judgment-type evidence that support a finding that the amount in controversy exceeds the jurisdictional amount. In their notice of removal, Southern and Mr. Jannah simply state that based on Plaintiff's complaint, "it is clear that the amount in controversy . . . exceeds $75,000." Southern and Mr. Jannah indicate that their belief that "plaintiff's claims will likely exceed $75,000.00" is based on a report from an August 1999 MRI, taken nine months after the alleged accident, which shows herniated discs at the C3-4 and C4-5 levels. Such conclusory and defective allegations are clearly insufficient to support their jurisdictional allegations. The amount in controversy must exceed $75,000.00, exclusive of costs and interest, at the time of removal. Southern and Mr. Jannah fail to assert this mandatory allegation, much less support it with summary judgment type evidence.
In their opposition to Plaintiff's motion to remand, Southern and Mr. Jannah direct the Court's attention to three Louisiana cases, which they allege support a finding that plaintiff's claims exceed the jurisdictional amount. Rather than supporting a finding that the amount in controversy exceeds the requisite amount in this case, these three cases merely suggest the possibility that a plaintiff injured in an automobile accident may recover more than the requisite amount, depending on claims asserted and the injuries sustained.
More importantly, the cases proffered by Southern and Mr. Jannah bear little relation to the facts in this case. For example, in Masters v. City of New Orleans, 662 So.2d 125 (La.App. 4 Cir. 1995), the Fourth Circuit Court of Appeals of Louisiana held that an award of $100,000.00 for general damages and $85,000.00 in lost wages and loss of earnings capacity is not excessive where the plaintiff suffered from chronic pain in her neck, back and shoulders, required nine days of hospitalization and several weeks of physical therapy, incurred over $14,000.00 in medical expenses and retired under a disability plan due to her injuries. Here, there is no allegation of chronic or permanent pain, hospitalization or therapy, or an incapacity to work. Furthermore, there is no evidence of significant past or future medical expenses or property damage. Similarly, neitherBosworth v. Authement, 634 So.2d 1205 (La.App. 1st Cir. 1993) (adjusting plaintiff's $50,000.00 general damages award to $150,000.00 because she was diagnosed with chronic pain syndrome which precluded her from working) nor Este' v. State Farm Insurance Companies, 676 So.2d 850 (La.App. 3rd Cir. 1996) (holding that $75,000.00 was the minimum general damages award in a case where plaintiff suffered from over $7,000.00 in past medical expenses and claimed significant future medical expenses and loss of earnings capacity) support any finding that Plaintiff's claims in this case exceed the jurisdictional amount.
See, e.g.,
The only summary judgment type evidence provided by Southern and Mr. Jannah is the August 16, 1999 report of Dr. William Armington, taken nine months after the alleged automobile accident, which states the results of an MRI on Plaintiff's cervical spine. Southern and Mr. Jannah claim that the report shows that Plaintiff suffers herniated discs at the C3-4 and C4-5 levels and allege, without support, that Plaintiff's doctors will attempt to relate the herniated discs to the subject accident. Such evidence is not, however, sufficient to prove by a preponderance of the evidence that Plaintiff's claims exceed $75,000.00, exclusive of costs and interest. The suspicions of Southern and Mr. Jannah are not a sufficient basis for a finding that the requisite amount in controversy exists. Accordingly, Southern and Mr. Jannah fail to carry their burden of establishing that federal jurisdiction over the subject matter of this case exists.
Finally, although Plaintiff bears no burden to show that the jurisdictional amount does not exist because Southern and Mr. Jannah failed to meet their initial burden, Plaintiff has stipulated, through counsel, that the amount in controversy does not exceed $75,000.00, exclusive of costs and interest. Such evidence, while not persuasive, may be considered in determining whether the jurisdictional amount has been met.
After considering all of the evidence, the Court finds that Southern and Mr. Jannah have 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. This action is hereby REMANDED to the Civil District Court for the Parish of Orleans.
New Orleans, Louisiana, this 4th day of February, 2000.