Opinion
CIVIL ACTION No. 01-1776
July 16, 2002
ORDER AND REASONS
This personal injury action is in federal court on removal from the 32nd Judicial District Court for the Parish of Terrebonne based on diversity jurisdiction. It is before the Court on plaintiffs' motion to remand. R.D. # 5. The removing defendants oppose the motion, which was taken under submission on July 10, 2002. After consideration of the complaint, plaintiffs' motion and attached stipulation, defendants' opposition and the law, and for the following reasons, the motion to remand is granted.
BACKGROUND
Rachael Heinhuis was injured when her vehicle was struck by a truck driven by defendant Stephen H. Wilkes as he attempted to change lanes. Plaintiffs sued defendants in state court alleging personal injuries on behalf of Mrs. Heinhuis, and her husband and minor son allege damages for loss of consortium. The Heinuises are domiciled in Terrebonne Parish, Louisiana; the defendant Mr. Wilkes and his employer, West Florida Transport, Inc., are domiciliaries of Florida, and the employer's insurer, Insurance Corporation of Hannover, is a foreign company with its principal place of business in California.
At paragraph 9, plaintiffs' complaint alleges that Mrs. Heinhuis sustained "serious and/or permanent injuries consisting of, but not necessarily limited to, severe trauma to her neck, back and other serious injuries to her mind and body", causing her "inter alia, severe pain and suffering (physical and mental), mental anguish and distress, humiliation, disfigurement, disability, impairment of function, loss of past and future income, loss of past and fringe benefits, impairment of earning capacity and past, loss of enjoyment of life and future medical expenses."
Under Louisiana law, a petition may not make a demand for a specific monetary amount. La. C.C.P. art. 893(A)(1). That article further provides that in order to establish the jurisdiction of the court, the right to a jury trial, or the lack of jurisdiction of the federal courts due to insufficiency of damages, the petition may include a general allegation that the claim exceeds or is less than the requisite amount. Id. There is no minimum jurisdictional amount for a claim in state district court, however, the jurisdictional amount for a jury trial is $50,000.00 (La. C.C.P. art. 1732(1)). At paragraph 12 of their complaint, plaintiffs' stipulate that the amount in controversy, either individually or in the aggregate, "do not meet or exceed" the sum of $100,000.00. Plaintiffs' made no jury demand.
Because the court can find no other reason to include the stipulation in the complaint, it assumes that plaintiffs intended to preclude removal to federal court by stipulating to damages below the jurisdictional amount for diversity jurisdiction in federal court.
Defendants' removed the action pursuant to 28 U.S.C. § 1332, alleging complete diversity of citizenship and the requisite jurisdictional amount. Plaintiffs' filed the instant motion to remand, along with a new stipulation by plaintiffs' counsel on behalf of all plaintiffs that "their cause of actions does [sic] not exceed $75,000.00, either individually or in the aggregate, exclusive of interests and costs." R.d. #6.
ANALYSIS
The party invoking federal subject matter jurisdiction bears the burden of establishing that jurisdiction. St. Paul Reinsurance Company, Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998), citing Gaitor v. Penninsular Occidental Steamship Co., 287 F.2d 252, 253-54 (5th Cir. 1961). The jurisdictional amount for federal jurisdiction in a diversity case is $75,000.00. 29 U.S.C. § 1332. It has long been recognized that "the sum claimed by the plaintiff controls if the claim is apparently made in good faith." St. Paul Reinsurance at id., citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed.2d 845 (1938). However, "when a complaint does not allege a specific amount in damages, the party invoking federal jurisdiction must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount." St. Paul Reinsurance at 1253, citing Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335-36 (5th Cir. 1995) (The test is whether it is more likely than not that the amount of the claim will exceed the jurisdictional amount). Determination of the amount in controversy is a two step process: first, the complaint is examined to determine whether it is "facially apparent" that the claim exceeds the jurisdictional amount; second, if the amount is not thus apparent, the court may rely on "summary judgment-type" evidence to determine the amount in controversy. St. Paul Reinsurance at id., citing Allen, 63 F.3d at 1335-36. The jurisdictional facts must be judged as of the time the complaint is filed, and subsequent events cannot serve to deprive the court of jurisdiction once it has attached. St. Paul Reinsurance at 1253-54, quoting St. Paul Mercury, 303 U.S. at 292, 58 S.Ct. at 592; see also Hartford Insurance Group v. Lou-Con, Inc., 2002 WL 1237104, *1 (E.D.La. June 21, 2002).
Defendants argue first that it is facially apparent from the complaint that the jurisdictional amount is met because of the serious nature of the alleged injuries, and because the complaint stipulated that the damages do not exceed $100,000.00, which is greater than the jurisdictional amount. They cite Frisard v. BellSouth Telecommunications, Inc., 898 F. Supp. 396, (J. Porteous, E.D.La. 1995), in support of the argument. In Frisard, plaintiff's state court complaint included a demand for a jury trial and a statement that the amount in controversy exceeds the jurisdictional minimum for a jury trial. Defendant removed the action to federal court. Plaintiff moved to remand, arguing that he "requested trial by jury to protect some right if monetary damages were determined by plaintiff to exceed Fifty thousand dollars", and submitted an affidavit that he now believed his monetary damages to be less than $50,000.00 and that he would not seek, demand, or accept a judgment for that amount. Id. at 370. Judge Porteous first noted that plaintiff had plead for a jury in state court and cited, in agreement, Judge Sear's ruling in Mitchell v. Flexcon Co., Inc., 1994 WL 117782 (E.D.La. 1994), "that a lawsuit filed in state court that includes a jury demand reveals on its face that the action meets the federal jurisdictional amount." Id. The court then noted that plaintiff had not plead a specific amount of damages to establish the lack of federal jurisdiction, as allowed by La. C.C.P. art. 893. Id. Considered with plaintiff's claim of significant loss of business and mental and emotional distress, the court found that it was facially apparent from the petition that the claim exceeded the jurisdictional amount. Id.
At that time, the jurisdictional amount for diversity jurisdiction in federal court was $50,000.00, the same amount required for a jury trial in state court.
In the case at bar, plaintiffs did not plead for a trial by jury, and apparently attempted to plead a specific amount of damages to establish the lack of federal jurisdiction. The stipulation only states that the damages do not exceed $100,000.00; it does not state that they are greater than $75,000.00. Under the open-ended language of the stipulation, the damages could just as easily be less than $75,000.00. Moreover, plaintiffs did not demand a jury, suggesting that the claim actually may not meet the requisite $50,000.00 jurisdictional amount for a jury trial.
In addition, the general, non-specific language used in the complaint to describe Mrs. Heinhuis' alleged injuries is broad enough to include just about any possible injury that may ultimately be proven at trial, and is common in personal injury complaints. It does not specify any particular injury such as broken bones, spinal injury, internal injuries, hospitalization, or describe what type, if any, of medical treatment Mrs. Heinhuis received as a result of the accident. It is impossible to discern the actual extent and seriousness of the injuries from the allegations of the complaint.
Because the Court finds that it is not facially apparent from the complaint that the claim exceeds the jurisdictional amount, it looks to summary judgment-type evidence to determine if the claim, at the time of removal, met the federal jurisdictional amount. In their brief Memorandum in Support of the motion to remand, plaintiffs state that Mrs. Heinhuis "suffered a soft-tissue injury", and directed the Court's attention to the attached stipulation by plaintiffs' counsel that the claims do not exceed $75,000.00.
Defendants argue that the new stipulation cannot defeat subject matter jurisdiction for two reasons: (1) the stipulation is post-removal change to reduce the amount of the claim alleged in the petition; and (2) plaintiffs' counsel's stipulation that the amount in controversy is below the jurisdictional amount, is not, in and of itself, enough to defeat jurisdiction.
Under the facts of Frisard, Judge Porteous held that plaintiff's subsequent amendment of his petition to omit his jury demand and his affidavit limiting his claim to less than $50,000.00, constituted a post-removal change in his damage request and could not defeat federal jurisdiction. Id. at 370. As previously noted, those facts are distinguished from the facts in the case at bar. Defendants also cite Marcel v. Pool Co., 5 F.3d 81 (5th Cir. 1993) and DeAguilar v. Boeing Co., 11 F.3d 55 (5th Cir. 1993) in support of their argument. Both cases are factually distinguishable from this case.
In Marcel, plaintiff's petition generally alleged serious damages, as did the Heinhuises' petition. Marcel, 5 F.3d at 82. Defendants removed to federal court alleging diversity jurisdiction. Marcel moved for remand, stipulating that his claim was not worth the $50,000.00 jurisdictional amount. Defendant's opposition to the motion to remand attached plaintiff's answers to discovery interrogatories which (1) listed the specific injuries suffered by plaintiff, including inter alia a broken arm requiring surgery and a steel plate, a fractured skull, a lacerated spleen and internal bleeding; and (2) established that plaintiff had been hospitalized for eight days and to date had incurred medical expenses in excess of $27,000.00. Defendants cited Louisiana cases in which awards for similar injuries were well in excess of $50,000.00, which the district court confirmed by its own research. Id. at 82-83. The district court refused to accept Marcel's unilateral stipulation, and in the absence of a joint stipulation by all parties as to the amount of the damages, denied plaintiff's motion to remand.
The Fifth Circuit affirmed, distinguishing the case from Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia S.A. 988 F.2d 559 (5th Cir. 1993). Marcel 5 F.3d at 83. In ANPAC, on appeal the Fifth Circuit observed that defendant's removal provided only a conclusionary and unsupported assertion that the jurisdictional amount had been met, and plaintiffs' motion to remand was supported by an affidavit from their attorney attesting that no individual plaintiff's damages exceeded $50,000.00. Id. The appellate court observed first that the injuries alleged by the ANPAC plaintiffs' petition were described as "skin rashes", and second, that any loss of income sustained by small-scale fishermen in Columbia was likely to be small, thus on the face of the complaint damages were not likely to reach $50,000.00 per plaintiff. ANPAC, 988 F.2d at 565, cited in Marcel, 5 F.3d at 83-84. The Fifth Circuit concluded that the plaintiffs' post-petition affidavit "merely clarified an ambiguous removal petition", Id., 988 F.2d at 565, cited in Marcel, 5 F.3d at 84, and reversed the district court's denial of remand.
In De Aguilar v. Boeing Co., 11 F.3d 55 (5th Cir. 1993), plaintiffs filed a wrongful death action in Texas state court arising from the crash of a Mexicana Airlines plane in Mexico. Defendants removed to federal court. Plaintiffs did not specify the amount of damages in the complaint. Plaintiffs moved to remand arguing inter alia that the amount in controversy for each plaintiff was less than the jurisdictional amount. Id. at 57. The motion was accompanied by the affidavits of their attorneys stating that the damages did not exceed $49,000.00 per plaintiff. Id. Plaintiffs argued that pursuant to the Fifth Circuit's decision in ANPAC, the attorney's affidavits are dispositive of the jurisdictional question. Id.
This particular lawsuit was plaintiffs' fifth attempt to find a friendly forum in a state court anywhere in the United States.
See Texas Rule of Civil Procedure 47(b) which forbids a demand for a specific amount of damages, as does Louisiana law.
The Fifth Circuit disagreed, quoting ANPAC as follows:
(A)t least where the following circumstances are present, [the removing party's burden to establish jurisdiction] has not been met: (1) the complaint did not specify an amount of damages, and it was not otherwise facially apparent that the damages sought or incurred were likely above $50,000.00; (2) the defendants offered only a conclusory statement in their notice of removal that was not based on direct knowledge about the claims; and (3) the plaintiffs timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present.
ANPAC, 988 F.2d at 566, quoted in De Aguilar, 11 F.3d at 57 (emphasis in De Aguilar); see also Marcel, 5 F.3d at 84 (quoting ANPAC, 988 F.2d at 566). The appellate court concluded that it was facially apparent from the De Aguilar petition that the individual damages for wrongful death would likely exceed $50,000.00, unlike the petition in ANPAC which claimed damages for skin rashes and minimum lost income. De Aguilar, 11 F.3d at id. Moreover, the removing defendants rebutted plaintiffs' attorney's affidavit with evidence that damages in that case, as for previous similar wrongful death claims, would probably exceed $50,000.00 per plaintiff, and that these same plaintiffs, in prior lawsuits in other courts had claimed damages of up to $5,000,000.00 per person. Id.
The De Aguilar Court explained that the ANPAC Court, having nothing but minimal offsetting evidence as to the amount in controversy, held that the removing defendants had not met their burden of establishing that the amount in controversy exceeded the jurisdictional amount) and remanded to state court. Id. at 58. Unlike ANPAC, in De Aguilar, even had it not been facially apparent that the damages alleged exceeded the jurisdictional amount, defendants successfully rebutted the plaintiffs' attorney's affidavits by showing that the damages would likely exceed the jurisdictional amount, and that the affidavits constituted a post-removal change in the damages claimed. Id. In the case at bar, (1) it is not facially apparent from the petition whether the jurisdictional amount is met; (2) defendants have made only conclusory statements in their removal that the jurisdictional amount is met; and (3) plaintiffs timely contested removal and defendants have not rebutted plaintiffs' counsel's stipulation that the claim is not worth the jurisdictional amount. Having nothing but minimal offsetting evidence as to the amount in controversy, the Court concludes that the removing defendants have not met their burden of establishing that the amount in controversy exceeds the jurisdictional amount.
Accordingly, the motion to remand this action to the 32nd Judicial District Court for the Parish of Terrebonne is GRANTED.
IT IS ORDERED that this civil action BE AND IS HEREBY TRANSFERRED in its entirety to the 32rd Judicial District Court for the Parish of Terrebonne.