Summary
holding that although plaintiff sustained "serious and debilitating injuries," it was reasonable to conclude that requisite jurisdictional amount was not met
Summary of this case from Miknaitis v. DotyOpinion
Civil Action No: 01-764 Section: "R"(2)
December 6, 2001
ORDER AND REASONS
Before the Court is plaintiff's motion to remand. For the following reasons, the Court grants the motion.
I. BACKGROUND
On February 22, 2001, Richard Jeffcoats filed this action in Civil District Court for the Parish of St. Bernard, State of Louisiana. Plaintiff seeks damages for personal injuries he sustained after falling outside of defendant's drug store on March 4, 2000. He seeks to recover for past, present and future pain and suffering; past, present and future mental anguish, shock, and trauma; past, present and future disability; past, present and future lost wages; and past, present and future medical expenses. ( See Petition for Damages at ¶ 6.) As directed by Article 893 of the Louisiana Code of Civil Procedure, plaintiff did not plead a specific damage amount in his petition. See LA. CODE Civ. PROC. art. 893(A)(1).
Defendant removed this case to federal court on March 21, 2001, based on diversity jurisdiction. On July 17, 2001, plaintiff filed a supplemental and amending petition alleging that the total value of his claim is less than $75,000. He filed this motion to remand on August 31, 2001. Plaintiff argues that this Court lacks jurisdiction because he has indicated in his supplemental petition that his claims do not exceed $75,000.
II. DISCUSSION
A defendant may generally remove a civil action filed in state court if the federal court would have had original jurisdiction. See 28 U.S.C. § 1441(a). Here, defendants asserted federal subject matter jurisdiction and removed this case on the basis of diversity of citizenship and an amount in controversy in excess of $75,000. See 28 U.S.C. § 1441(b); 1332.
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 Asociacion National de Pescadores a Pequena Escala o Artesanales de Columbia ("ANPAC") v. Dow Quimica de Columbia 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, 119 S.Ct. 1563 (1999). Nevertheless, the case must be remanded 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). Once a defendant has properly removed a state court action based on diversity jurisdiction, the plaintiff cannot defeat removal by subsequently altering his damage demand. See St. Paul Mercury, 303 U.S. 283, 295, 58 S.Ct. 586, 593 (1938) (if "plaintiff after removal, by . . . amendment of his pleadings, reduces the claim below the requisite amount, this does not deprive the district court of jurisdiction."); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264-65 (5th Cir. 1995); Marcel, 5 F.3d 81, 84 (5th Cir. 1993); ANPAC, 988 F.2d at 565 ("[P]ost-removal events cannot deprive a court of jurisdiction one it has attached.").
Louisiana law prohibits the 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. See 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 can submit "summary judgment-type evidence" to establish that the actual amount in controversy exceeds $75,000. See De Aguilar, 47 F.3d at 1412. Once a defendant shows that the amount in controversy exceeds $75,000, the burden shifts to the plaintiff to show with legal certainty that she will not be able to recover more than the amount claimed in the state court complaint. See Id. at 1411-12.
In ANPAC, the Fifth Circuit stated that the removing party did not fulfill its burden when: (1) the plaintiffs' complaint did not specify damages and it was not facially apparent that the relief sought would exceed the amount in controversy limitation; (2) the defendant offered only a conclusory statement that the damages requested exceeded the jurisdictional requirement; and (3) the plaintiff contested removal in a timely fashion with a sworn, unrebutted, affidavit indicating that the amount in controversy was not present. ANPAC, 988 F.2d at 566; see also Marcel, 5 F.3d at 84.
Here, the Court finds that defendant has not carried it's burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75,000. The Court first looks to the face of plaintiff's state court petition. Here, plaintiff does not allege any specific injuries, but he does seek damages for past, present and future medical expenses, past, present and future pain and suffering, past, present and future disabilities, and loss of wages. The types of damages plaintiff seeks are factors that generally weigh in favor of finding the facially apparent test satisfied. See generally Easley v. Pace Concerts, Inc., 1999 WL 649632, at *4 (E.D. La. 1999); Tauzier v. Dodge, 1998 WL 227170, at *2 (E.D. La. 1998). In this case, however, plaintiff filed a supplemental and amending petition in which he stipulated that his claim is less than $75,000. While a plaintiff cannot reduce his demand after removal, he can, as is the case here, clarify his demand after removal. Marcel, 5 F.3d at 85. In addition to a specific allegation of damages less than $75,000, plaintiff's petition fails to detail his injuries. Although plaintiff asserts that he sustained "serious and debilitating injuries" as a result of his fall, it is reasonable to conclude that his injuries will not come close to reaching the jurisdiction amount. See Petition for Damages at ¶ 4. In fact, in Palmer v. Wal-Mart Stores, Inc., 1996 WL 20862, *1 (E.D. La. 1996), the court granted plaintiff's motion for remand even when the plaintiff alleged that she suffered "severe and possible permanent" injuries, because her allegations were "fairly vanilla" and did not reveal the extent of her injuries. Id. Further, plaintiff contested removal in a timely fashion. Accordingly, after weighing all of these factors, the Court finds that defendant has not shown by a preponderance of the evidence that it is apparent from the face of plaintiff's petition that his damages will exceed $75,000.
Furthermore, defendant has not submitted any summary judgment-type evidence to establish that the amount in controversy actually exceeds $75,000. Defendant's notice of removal contains only a conclusory statement that plaintiff's damages "may exceed the sum of $75,000," See Def.'s Notice Removal ¶ 5). Additionally, in its opposition to the remand motion, defendant merely reasserts its conclusory statements that plaintiff's claims exceeds the jurisdictional limit. See Def.'s Opp. at 2. Thus, the Court concludes that defendant has not satisfied its burden under De Aguilar that the amount in controversy at the time of removal exceeded $75,000.
III. CONCLUSION
For the foregoing reasons, plaintiff's motion to remand is GRANTED, and this case is hereby REMANDED to Civil District Court for the Parish of St. Bernard, State of Louisiana, for further proceedings.