Opinion
No. 1:02CV238-D-D
August 26, 2002
OPINION GRANTING MOTION TO REMAND
Presently before the court is the Plaintiff's motion to remand this cause to the Circuit Court of Monroe County, Mississippi. Upon due consideration, the court finds that the motion should be granted and this cause remanded to state court for ultimate resolution.
A. Factual Background
The Plaintiff in this action is married to Frances Renee Harris, who was employed by Kerr-McGee Chemical Corporation in Hamilton, Mississippi. The Defendant Benham Group, an engineering firm, was employed by Kerr-McGee to produce plans, drawings and specifications for a planned expansion of Kerr-McGee's Hamilton facility. Mrs. Harris was injured when an allegedly negligently designed section of the expanded facility caused her to be sprayed with hydrochloric acid. As a result of her exposure to hydrochloric acid, Mrs. Harris suffered first, second, and third degree BURNS on her body, as well as damage to her vocal cords and lungs.
The Plaintiff filed suit in the Circuit Court of Monroe County, Mississippi, on November 16, 2001, alleging, inter alia, that the Defendant negligently designed Kerr-McGee's expanded facility. Due to the Defendant's negligence and his wife's injuries, the Plaintiff alleges that he has suffered loss of consortium and other damages.
On June 20, 2002, the Defendant removed the action to this court on the basis of federal diversity jurisdiction. Thereafter, the Plaintiff motioned the court to remand this matter to state court contending that because the amount in controversy requirement has not been satisfied, federal diversity jurisdiction does not exist and this court lacks subject matter jurisdiction.
B. Standard for Remand
The Judiciary Act of 1789 provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441 (a). Original federal diversity jurisdiction exists "where the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between . . . citizens of different States." 28 U.S.C. § 1332 (a); Sid Richardson Carbon Gasoline Co. v. Interenergy Res., Ltd., 99 F.3d 746, 751 (5th Cir. 1996).
After removal of a case, the plaintiff may move for remand, and "[if] it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447 (c). The Fifth Circuit has held that the removal statutes are to be construed "strictly against removal and for remand." Eastus v. Blue Bell Creameries. L.P., 97 F.3d 100, 106 (5th Cir. 1996); Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941).
Once a motion to remand has been filed, the burden is on the removing party to establish that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Specifically, in cases such as this, where the plaintiff concedes that the action is between citizens of different States but asserts that diversity jurisdiction does not exist due to the pending claims being for less than $75,000, the plaintiff's claim for damages — as set forth in the complaint — remains presumptively correct unless the defendant can show by a preponderance of the evidence that the amount in controversy is actually greater than $75,000. St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); De Aguilar, 47 F.3d at 1412. As a result, unless the defendant can meet its burden, the plaintiff may avoid federal diversity jurisdiction by pleading, in good faith, state court damages below the minimum federal jurisdictional amount.
For the reasons set forth below, the court finds that the Defendant has not met its burden of establishing the existence of federal diversity jurisdiction, and the Plaintiff's motion to remand this cause shall therefore be granted pursuant to 28 U.S.C. § 1447 (c).
C. Discussion
1. General Principles
It is axiomatic that the amount in controversy in a given action is determined from the complaint itself, unless it appears that the amount stated in the complaint is not claimed in good faith. Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 1573, 6 L.Ed.2d 890 (1961) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938)). When the plaintiff's complaint does not allege a specific amount of damages, however, the removing defendant may defeat a motion to remand if it can prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. DeAguilar, 47 F.3d at 1409. This burden is deemed to be met if it is "facially apparent" from the plaintiff's complaint that the amount in controversy exceeds the jurisdictional minimum. Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). The court determines whether it is facially apparent that the amount in controversy exceeds the jurisdictional minimum by simply examining the complaint and ascertaining whether the amount in controversy is likely to exceed $75,000. Allen, 63 F.3d at 1336. In conducting this analysis, the court may refer to the types of claims alleged by the plaintiff, as well as the nature of the damages sought. Id.
If the removing defendant is able to establish that the amount in controversy exceeds $75,000, removal of the cause is deemed proper unless the plaintiff shows that, as a matter of law, it is certain that he will not be able to recover more than $75,000. Allen, 63 F.3d at 1335-36;DeAguilar, 47 F.3d at 1411. In other words, once the removing defendant has established by a preponderance of the evidence that the federal jurisdictional minimum has been met, it must appear to a "legal certainty" that the plaintiff's claim is for less than the jurisdictional amount; otherwise, the federal jurisdictional amount is deemed to have been met. DeAguilar, 47 F.3d at 1412.
2. The Plaintiff's Claims
Here, the Plaintiff is not seeking a specified amount of damages. Instead, his complaint simply requests that he be awarded "actual and compensatory damages and attorneys fees not greater than $75,000.00, exclusive of interest and costs." See Complaint at 5. The burden is on the Defendant, therefore, to prove by a preponderance of the evidence that the amount in controversy actually exceeds $75,000. DeAguilar, 47 F.3d at 1409. In attempting to meet its burden, the Defendant argues that the Plaintiff's May 23, 2002, responses to two separate discovery requests demonstrate by a preponderance of the evidence that the amount in controversy in this action exceeds $75,000.
In response to the Defendant's Request for Admission No. 1, which seeks an admission that the Plaintiff will never attempt to assert any claim in these proceedings that exceeds $75,000, the Plaintiff states: "Objection. The Plaintiff is unable at this time to admit or deny this request . . ." Then, in a somewhat confusing response to Interrogatory No. 14, the Plaintiff states that "[a]s discovery proceeds in this action, the Plaintiff will have a better determination of her ( sic,) damages which may be available to her under Mississippi law." The Defendant argues that these responses establish by a preponderance of the evidence that the Plaintiff's claims exceed $75,000.
Overlooking the fact that the Plaintiff has represented to the court that, upon remand, he will file a binding stipulation in state court indicating that he will not seek damages exceeding $75,000, the court finds that the Plaintiff's discovery responses are insufficient to meet the Defendant's burden. While the responses could be construed as indicating that the amount in controversy is potentially greater than $75,000, the responses could just as likely indicate that the amount in controversy is less than $75,000. The Defendant bears the burden, however, of establishing that it is more likely than not that the amount in controversy exceeds $75,000; merely showing that it is just as likely that the amount in controversy is greater than $75,000 as it is less than $75,000 is plainly insufficient. DeAguilar, 47 F.3d at 1409; see Allen, 63 F.3d at 1335 (holding that "removal . . . cannot be based simply upon conclusory allegations [regarding the amount in controversy]"). The court therefore holds that only a unequivocal denial of such a discovery request is sufficient to meet the Defendant's burden in this situation; merely objecting to an Interrogatory or Request for Admission is insufficient to permit removal. See. e.g., McLain v. American Int'l Recovery, Inc., 1 F. Supp.2d 628, 630-31 (S.D.Miss. 1998) (stating that "[u]ntil a defendant receives in writing, a statement that suggests that a plaintiff plans to seek more than $75,000 in damages, the case is not removable to federal court."). Here, the Plaintiff did not unequivocally deny the discovery requests, but rather merely objected to the requests in language insufficient to permit the Defendant to meet its burden.
In addition, the court notes that it is not facially apparent that the amount in controversy in this case exceeds $75,000. See ANPAC v. Dow Quimica de Colombia S.A., 988 F.2d 559, 566 (5th Cir. 1993) (holding that "facially apparent" standard was not met where plaintiffs, who were small-scale Columbian fishermen, sued for skin rashes and lost income);Terry v. Service America Corp., 990 F. Supp. 476, 477 (N.D.Miss. 1997) (holding that standard was not met where employee sued employer for defamation, negligence, and negligent infliction of emotional distress in connection with termination of employment); Allen, 63 F.3d at 1335 (holding that "facially apparent" standard was met in case where 512 plaintiffs sued for "property damage and wide-ranging, physical and mental injuries from the explosion and release of toxic waste"); De Aguilar v. Boeing Co., 11 F.3d 55 57 (5th Cir. 1993) (holding that standard was met where plaintiff sued for wrongful death). Here, the Plaintiff is not seeking punitive damages, nor is this a mass tort or wrongful death action; rather, the Plaintiff is only seeking damages for loss of consortium, emotional distress and reimbursement of medical expenses in connection with non-fatal injuries suffered by his wife in an industrial accident. Accordingly, the court finds that it is not facially apparent that the amount in controversy in this case exceeds $75,000.
D. Conclusion
In sum, the court finds that the Defendant has failed to meet its burden to show by a preponderance of the evidence that the amount in controversy in this case exceeds $75,000. As such, federal subject matter jurisdiction pursuant to 28 U.S.C. § 1332 does not exist. Accordingly, this court does not possess subject matter jurisdiction, and the Plaintiff's motion to remand shall be granted. The Plaintiff's request for an award of attorney's fees and costs pursuant to 28 U.S.C. § 1447 (c), however, shall be denied.
A separate order in accordance with this opinion shall issue this day.
ORDER GRANTING MOTION TO REMAND
Pursuant to an opinion issued this day, it is hereby ORDERED that
(1) the Plaintiff's motion to remand (docket entry 15) is GRANTED; and
(2) this cause is hereby REMANDED to the Circuit Court of Monroe County, Mississippi.