Opinion
Civil Action 01-0858 Section "T"(2)
September 17, 2001
Before the Court is a Motion to Remand filed on behalf of the plaintiffs, Rose Johnson and Kenneth Johnson on April 26, 2001 and Defendants' reply/opposition thereto, filed May 21, 2001. The parties waived oral argument and these motions were submitted for the Court's consideration on the briefs alone. The Court, having studied the legal memoranda submitted by the parties, the court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
The plaintiffs, Rose Johnson and Kenneth Johnson, originally filed suit in the Fortieth Judicial District Court for the Parish of St. John the Baptist, State of Louisiana (Case No. 43115). This suit involves a personal injury claim arising out of an alleged trip and fall wherein plaintiffs' injuries are alleged to have been caused by the defendants' negligence. Defendant, Stage Stores, Inc., filed a Notice of Removal alleging diversity of citizenship and that the plaintiffs' demands exceeded the jurisdictional amount. The plaintiffs now seek to remand this matter to state court.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of the Plantiffs in Support of the Motion to Remand:
The plaintiffs contend that their cause of action should not have been removed to Federal Court due to the fact that the Federal Court lacks subject matter jurisdiction to hear this case. Plaintiffs argue that the Court does not have federal question jurisdiction or diversity jurisdiction and that 28 U.S.C. § 1447 (c) compels this Court to remand the case to state court. Plaintiffs assert that the defendants in this matter have the burden of proving proper jurisdiction in Federal Court for removal. Additionally, it is argued that the defendants bear the burden of proving the propriety of the removal in a challenge to remand. Plaintiffs allege that their complaint specifically stated that the amount being sought from each plaintiff did not exceed the $75,000 jurisdictional requirement for Federal Court jurisdiction. Additionally, plaintiffs contend that each claim must satisfy the jurisdictional amount in order for them to be haled into Federal Court. Furthermore, plaintiffs urge that there can be no aggregation of claims nor can attorney fees be added to obtain the requisite jurisdictional amount for Federal Court jurisdiction as defendant argues in his opposition brief. Finally, based on De Aguilar v. Boeing Co., 47 F.3d 1404, 1411 (5th Cir. 1995), the plaintiffs allege that the defendants cannot show by a preponderance of the evidence the necessary amount in controversy in order to confer jurisdiction on the Federal Court.
The Court notes that plaintiffs' counsel has referred to this case as a class action lawsuit. The Court cannot decipher from the pleadings why this assertion has been made in the plaintiffs' Motion to Remand. Additionally, the Court cannot find any document in the record containing a paragraph 8 wherein the plaintiffs suggest that their claim does not equal or exceed $50,000 (sic). In the future, the Court would suggest that plaintiffs' counsel take all necessary diligence to assure that his motion bears some similarity to the pleadings before this Court.
B. Arguments of the Defendant in Opposition to the Motion to Remand:
The Court notes that the Opposition to the Motion to Remand was filed on behalf of both Stage Stores, Inc. and ESIS Insurance Company. However, ESIS has never been served or has answered any pleadings in this matter. Therefore, "defendant" shall refer to Stage Stores, Inc. for purposes of this memo.
Defendant claims that the cause of action is properly before this Court based on complete diversity and the requisite amount in controversy. Defendant avers that ESIS is a nominal party whose citizenship is irrelevant, thereby destroying plaintiffs' argument that diversity is not met.
Defendant contends that it is facially apparent that the jurisdictional amount in controversy is met, but, if this Court finds it is not, then the defendant has offered sufficient rebuttal evidence to prove the plaintiffs' claims exceed the jurisdictional requirement. In the alternative, defendant argues that it will remove its opposition to plaintiffs' Request for Remand if plaintiffs will stipulate by affidavit or signed and executed document that their damages will not exceed $75,000.
III. LAW AND ANALYSIS:
A. Law on Removal and Remand:
Removal of cases initially filed in state court are governed generally by 28 U.S.C. § 1441. Section 1441(a) permits removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441. United States Courts have original jurisdiction of "all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331.
A defendant who desires to remove a civil action from a state court to a federal district court must file a notice of removal within thirty days after the receipt by the defendant of a copy of the initial pleading setting forth the claim for relief upon which such action is based. 28 U.S.C. § 1446 (b). Furthermore, 28 U.S.C. § 1447 (c) provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."
In this particular case, jurisdiction is asserted based upon diversity of citizenship. 28 U.S.C. § 1332. The removing party bears the burden of establishing that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.), cert. denied, 516 U.S. 865, 116 S.Ct. 180, 133 L.Ed.2d 119 (1995). Further, "unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith." Id. "When the plaintiffs complaint does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds [the jurisdictional amount]." De Aguilar, 47 F.3d at 1409,quoting De Aguilar v. Boeing Co. ("De Aguilar I"), 11 F.3d 55, 58 (5th Cir. 1993). Additionally, the Fifth Circuit has stated that the preponderance burden forces the defendant to do more than point to state law that might allow the plaintiff to recover more than what is pled.Id.
Jurisdictional facts that support removal must be judged at the time of removal. Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (1995). Moreover, once diversity jurisdiction has attached, it cannot be subsequently divested by the voluntary reduction of the amount in controversy below jurisdiction. 28 U.S.C. § 1447 (c); St. Paul Indemnity Co. v. Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Reisman v. New Hampshire Fire Ins. Co., 312 F.2d 17 (5th Cir. 1963); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256 (5th Cir. 1995). Any evidence submitted after the complaint has been filed is allowable only if relevant to the time of removal. Asociacion Nacional de Pescadores v. Dow Quimica de Colombis S.A., 988 F.2d 559 (5th Cir. 1993), cert. denied, 510 U.S. 1041, 114 S.Ct. 685, 126 L.Ed.2d 653 (1994); De Aguilar v. Boeing Co., 47 F.3d 1404 (5th Cir. 1995). Additionally, "a unilateral, post-removal stipulation does not deprive the removal court of jurisdiction." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed.2d 845 (1938); Candies v. Monsanto Co., 1998 WL 57055 (E.D.La.).
In this case, defendant contends that diversity exists and that the amount in controversy has been met by these plaintiffs. This Court disagrees for the following reasons.
B. The Court's Analysis:
The prevailing law in this area was summarized by the Fifth Circuit in the recent case of Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) as follows:
Several Fifth Circuit decisions have established a clear analytical framework for resolving disputes concerning the amount in controversy. Plaintiffs in Louisiana state courts, by law, may not specify the numerical value of the damage claim. La. Code Civ. P. art. 893. In such a situation, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993). The defendant may make this showing in either of two ways: (I) by demonstrating that it is "facially apparent" that the claims are likely above $75,000, or (2) "by setting forth the facts in controversy — preferably in the removal petition, but sometimes by affidavit — that support a finding of the requisite amount." Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) (emphasis in original). Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
Because Louisiana law prohibits the Plaintiffs from pleading a specific amount of monetary damages, plaintiffs have alleged an indeterminate amount of damages. See LA. Code Civ. Proc. Ann. art. 893(A)(1) (West 1999). Therefore, the Court first must look to the petition itself to determine whether it is "facially apparent" that the Plaintiffs' claim exceeds the jurisdictional amount of $75,000. In their Petition for Damages, Mr. and Mrs. Johnson contend that Mrs. Johnson sustained "grievous personal injuries to her entire body and mind, worst of which is a back injury." Plaintiffs' Petition for Damages, ¶ II. Additionally, Plaintiffs aver that Mrs. Johnson suffered "sprains, strains, contusions and abrasions." Id. Finally, plaintiffs claim that they "suffered past and future physical pain and suffering, past and future mental anguish, disability, disfigurement, past and future medical expenses, enjoyment of life or hedonic damages and consortium." Id.
After a review of the petition as it existed at the time of removal, the Court is of the opinion that the damages claimed in the Plaintiffs petition do not rise to the level of the facts set forth in prior cases to "facially" support removal. For example, in Luckett v. Delta Airlines, Inc., supra, the plaintiff "specifically alleged damages for property, travel expenses, an emergency ambulance trip, a six-day stay in the hospital, pain and suffering, humiliation, and temporary inability to do housework following her hospitalization." Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999). In Simon v. Wal-Mart Stores. Inc., supra, however, the plaintiff "alleged with little specificity, damages from less severe physical injuries and unidentified medical expenses." Id. at 851. In examining the present action within theLuckett framework, the Court determines that the Plaintiffs' petition more closely resembles the petition in Simon rather than the petition inLuckett. The Plaintiffs in the present case do not allege loss of property, emergency transportation, a specific length of hospitalization, or specific types of medical treatments. Simply put, the Johnsons' petition "describes damages inadequately to support removal." See Simon 193 F.3d at 851. Therefore, the Court finds that the jurisdictional amount required for removal is not "facially apparent" from the Plaintiffs petition.
The Court also notes that neither the Plaintiff nor the Defendant demanded a jury trial in this action. Louisiana Civil Code article 1732 provides that a jury trial shall not be available in a lawsuit in which "the amount of no individual petitioner's cause of action exceeds fifty thousand dollars exclusive of interest and costs." La.C.C.P. art. 1732 (a) (West 2001). Therefore, under Louisiana law, in order to be entitled to trial by jury, the Plaintiffs claim must exceed $50,000, exclusive of interest and costs. While the Plaintiffs failure to request a jury trial in this case is not dispositive of the issue of the amount in controversy, this Court is of the opinion that such evidence further supports the notion that the amount in controversy for federal jurisdiction is not facially apparent from the Plaintiffs petition.
Because the requisite jurisdictional amount is not "facially apparent" in the Plaintiffs' petition, the Court must now determine whether the Defendant has shown by a preponderance of the evidence, with "summary judgment like" proof that the Plaintiffs' claim exceeds $75,000. With regard to the jurisdictional amount, the Defendant's Notice of Removal merely states that, "the plaintiff counsel indicates that the amount in controversy exceeds the federal jurisdictional amount exclusive of interest and costs." Defendant's Notice of Removal, ¶ V. While the Defendant summarily contends that it is apparent that the Plaintiffs' damages exceed the jurisdictional amount, this Court disagrees. The Defendant asserts that "by examining the petition as well as the nature of the alleged injuries it is facially apparent that these claims could exceed the requisite amount in controversy" referencing plaintiffs' petition ¶ 4. See Defendant's Memorandum in Opposition to Motion to Remand, page 5. However, the Defendant's Notice of Removal does not set forth any specific facts to support its conclusory allegation that the jurisdictional amount exceeds $75,000. Instead, it merely quotes the Plaintiffs complaint. Furthermore, the Defendant's Memorandum in Opposition to the Motion to Remand does not specifically set forth sufficient facts in controversy to support a finding of the requisite jurisdictional amount. Accordingly, this Court finds that the Defendant has failed to come forth with "summary judgment type" proof that the amount in controversy exceeds $75,000, exclusive of interest and costs.
As the requisite amount in controversy has not been met, this Court does not have jurisdiction over this case and questions relating to the diversity of citizenship of the parties (whether ESIS Insurance Company is a nominal party, a third party administrator, or the insurer of the Defendant) are moot.
IV. Conclusion:
For the foregoing reasons, the Court finds that it does not appear by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount required for subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Consequently, removal of this action to federal court is improper.
Accordingly,
IT IS ORDERED that the Plaintiffs' Motion to Remand be, and the same is hereby, GRANTED.
IT IS FURTHER ORDERED that the above-captioned matter, Case Number 01-0858, be, and the same is hereby REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.