Summary
distinguishing Gebbia and remanding knee injury case despite claims for several categories of damages
Summary of this case from Williams v. Miss. Farm Bureau Cas. Ins. Co.Opinion
Civil Action No. 03-2385 Section "R" (1).
July 22, 2004
ORDER AND REASONS
Before the Court is plaintiff's opposed motion for remand For the following reasons, the Court GRANTS plaintiff's motion.
I. BACKGROUND
Earline Williams Guillory filed suit against Chevron in the Civil District Court for Orleans Parish on August 6, 2003. In her complaint, Guillory does not allege a specific amount of damages. She specifies that damages sought are more than $50,000, the minimum required in Louisiana courts for jury trial. On August 22, 2003, Chevron removed to this Court, alleging diversity jurisdiction. Guillory moves this Court to remand the case, arguing that the Court lacks subject matter jurisdiction under 28 U.S.C. § 1332(a) because the amount in controversy does not exceed $75,000. Along with her motion to remand, Guillory submits an affidavit in which she states that the total amount in controversy from the claim in question does not exceed $75,000. Pla.'s Mot. to Remand Guillory further waives any right to collect damages in excess of $75,000. Id.
II. DISCUSSION
A. Applicable Law
A defendant may typically remove a civil action filed in state court if the federal court would have had original jurisdiction. See 28 U.S.C. § 1441(a). The removing party bears the burden of establishing the existence of federal jurisdiction. See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). The jurisdictional facts supporting removal are examined as of the time of removal. See Gebbia v. Walmart Stores, Inc., 223 F.3d 880, 883 (5th Cir. 2000); Asociacion Nacional de Pescadores a Pequena Escala O Artesanales de Colombia ("ANPAC") v. Dow Quimica de Colombia S.A., 988 F.2d 559, 565 (5th Cir. 1993), abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998), rev'd on other grounds, 526 U.S. 574 (1999); Bonck v. Marriott Hotels, Inc., 2002 WL 31890932, at *1 (E.D.La.). The Court must remand the case to state court "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction[.]" 28 U.S.C. § 1447(c).
Louisiana law prohibits a plaintiff from pleading a specific amount of monetary damages. See LA. CODE CIV. PROC. art. 893. When 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 $75,000. Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); see also De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). A defendant makes this showing when it is facially apparent that the claims are likely to exceed $75,000. See Allen, 63 F.3d at 1335. In the alternative, the defendant can set forth the facts in controversy, preferably in the removal petition, but sometimes by affidavit or stipulation, that support a finding of the requisite amount. See id. The defendant must do more than point to a state law that might allow plaintiff to recover more than what is pleaded; the defendant must submit evidence that establishes that the actual amount in controversy exceeds $75,000. See De Aguilar, 47 F.3d at 1412. If the defendant meets its burden in either of these ways, the plaintiff must then show with legal certainty that her claims are really for less than $75,000. See id. at 1411-12. The Court may consider a plaintiff's post-removal affidavit that clarifies the amount in controversy only when the petition is ambiguous. See ANPAC, 988 F.2d at 565 (considering plaintiffs' lawyer's post-removal affidavit that damages were less than the jurisdictional amount).
B. Analysis
The Court must first resolve whether the amount in controversy is apparent from the face of Guillory's complaint by a preponderance of the evidence. Here, the Guillory's alleged injuries include "a fracture to her knee and torn internal structures of her knee." Pla.'s Compl. ¶ VII. She seeks damages for past and future pain, suffering, and disability; past and future medical expenses; past and future loss of wages and salary; and past and future loss of enjoyment of life. Id. at ¶ V. Chevron argues that Guillory's complaint alleges damages in excess of $75,000 on its face. The Court finds that the amount in controversy is not facially apparent.
Chevron offers several cases in support of its contention that Guillory's complaint seeks damages in excess of the minimum for diversity jurisdiction. Chevron's cases are inapposite because they all involve injuries that are more numerous or more severe than those for which Guillory seeks to recover. Indeed, a review of Louisiana jurisprudence reveals that injuries similar to Guillory's often result in less than $75,000 in general damages and medical expenses. Furthermore, it is not apparent that the unspecified damages for wages, pain, suffering, and loss of enjoyment of life would push the damages over $75,000. Cf. Midkiff v. Hershey Chocolate U.S.A., 1 F. Supp.2d 593, 594 (E.D. La. 1997) (noting that unspecified amounts for attorney's fees and pain and suffering were unknown and therefore it was not apparent that they would push the amount in controversy above the jurisdictional minimum).
See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 881 (injuries including right wrist, left knee and patella, and upper and lower back); Luckett v. Delta Airlines, Inc., 171 F.3d 295, 297-98 (5th Cir. 1999) (injuries including congestive heart failure, pulmonary edema, and respiratory distress); Bessard v. State of Louisiana Det't of Transp. and Dev., 645 So.2d 1134, 1135 (La. 1994) (kneecap broken in half necessitating immediate emergency surgery and hip to toe cast); Brooks v. Sewerage and Water Bd. of New Orleans, 847 So.2d 639, 641-42 (La.App.Ct. 2003) (unspecified leg injury aggravated pre-existing injury by loosening screws and necessitating additional surgery); Trueman v. City of Alexandria, 818 So.2d 1021, 1026 (La.App.Ct. 2002) (indicating possible knee replacement surgery); Richard v. St. Paul Fire and Marine Ins. Co., 657 So.2d 1087, 1092-93 (La.App.Ct. 1995) (unusually severe complications following surgery and possibility of more than one knee replacement surgery in the future); Baio v. Haggerty, 558 So.2d 691, 694 (La.Ct.App. 1990) (indicating possible knee replacement surgery); Lazarus v. Southern Farm Bureau Casualty Ins. Co., 535 So.2d 923, 928 (La.App.Ct. 1988) (knee wound with multiple fractures, ankle splintered into many fragments, permanent heel damage, 65 per cent permanent impairment in lower right extremity).
See Levine v. Zapata Protein, 961 F. Supp. 942, 944, 946-47 (E.D. La. 1996) ($59,824.62 for two knee arthroscopic surgeries, two S.I. joint blocks, physical therapy, and pain and suffering); Poulan v. Hunter, 830 So.2d 1125, 1127, 1130 (La.App. 2002) (affirming $34,059 award for torn medial meniscus and anterior cruciate ligament with future arthroscopic surgery likely and refusing to increase award to $75,000); Gage v. Potts, 653 So.2d 1183, 1185-86 (La.App. 1995) ($30,123.67 for arthroscopic surgery which revealed torn knee cartilage and patellofemoral chondromalacia); Use v. Use, 654 So.2d 1355, 1364 (La.App. 1995) ($75,879.72 for neck injury and surgery, knee injury and surgery, low back strain).
As the amount in controversy is not facially apparent, the Court considers whether Chevron has presented sufficient evidence to establish that Guillory's claims more likely meet the jurisdictional minimum than not. The Court finds that Chevron has not carried its burden. The record reflects that Guillory's occupation is as a homemaker, so she will not have a wage loss claim. Further, Chevron supplied medical billing information for both Drs. Altman and Barker, totaling $1,225. Def.'s Mem. Ex. B and C. Chevron also supplied and highlighted Dr. Barker's diagnosis: a tear of the medial meniscus, which calls for outpatient arthroscopic surgery, and either (a) a bruise, which calls for no surgery or treatment, or (b) an osteochondral fracture, which calls for inpatient surgery. Chevron provides no evidence as to the costs of the arthroscopic surgery or the osteochondral surgery. Chevron has not proved by a preponderance of the evidence that Guillory's damages meet the threshold $75,000.
Because the petition for damages is ambiguous, the Court will consider Guillory's post-removal affidavit clarifying the petition. Guillory attests that her damages are less than $75,000. Given that the amount in controversy is not facially apparent from the complaint and Chevron's inability to show by a preponderance of the evidence that more than $75,000 is in controversy, the Court credits Guillory's affidavit. See Easley v. Pace Concerts, 1999 WL 649632, at *5 (E.D. La. Aug. 25, 1999) (similarly crediting a plaintiff's stipulation that damages did not meet the jurisdictional minimum for diversity). Accordingly, this Court does not have subject matter jurisdiction over Guillory's claim.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS the plaintiff's motion for remand