Opinion
CIVIL ACTION NO. 03-0637, SECTION "N".
June 4, 2003.
ORDER AND REASONS
Before the Court is plaintiffs Motion to Remand. For the reasons that follow, the motion is RESET for hearing on August 6, 2003, to enable the parties to conduct discovery on the issue of jurisdictional amount.
I. BACKGROUND
Plaintiff commenced this action by filing a petition in Louisiana state court, seeking damages for blistering and scarring he allegedly suffered when he applied a product called Epil-Stop to his chest to remove unwanted hair. He filed the petition on behalf of himself and "others similarly situated." Defendants removed to this Court on the basis of diversity jurisdiction. Plaintiff then filed the instant motion to remand, asserting that the matter in controversy does not exceed $75,000, exclusive of interest and costs as required under 28 U.S.C. § 1322.
II. LAW AND ANALYSIS
Where, as here, the "`complaint does not allege a specific amount of damages, the party invoking federal jurisdiction must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount.'" White v. FCI USA, Inc., 319 F.3d 672, 675 (5th Cir. 2003) (quoting St. Paul Reinsurance Co. Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998)). "The defendant can meet the preponderance burden either by establishing that it is `facially apparent' from the petition that the claims exceed the jurisdictional amount, or by producing `summary judgment-type evidence' establishing facts that support such a finding." Price v. Smart Professional Photocopy Corp., No. 02-3507, 2003 WL 203083 at *2 (E.D. La. Jan. 29, 2003) (Vance, J.) (quoting St. Paul, 134 F.3d at 1253). Even if the defendant satisfies this burden, the case is still subject to remand if the plaintiff can "show with legal certainty that his claims do not exceed $75,000," for example by providing contrary evidence and/or a stipulation regarding the value of his claim. Bonck v. Marriott Hotels, Inc., 02-2740, 2002 WL 31890932 at *3 (E.D. La. Dec. 30, 2002) (Vance, J.).
"[A] post-removal affidavit cannot be used to change a damage request." Price, 2003 WL 203083 at *3 n. 4 (citing Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Columbia ("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, 119 S.Ct. 1563 (1999)). "It may, however, be used to `clarify a petition that previously left the jurisdictional question ambiguous.'" Id. (quoting ANPAC, 988 F.2d at 565).
In this case, it is not facially apparent from the petition that Mr. Pappas' damages exceed the jurisdictional amount. Indeed, the petition alleges very little about his claim, other than that he suffered blistering and scarring on his chest after applying defendants' product. Of the quantum cases cited by the parties, only one addressed injuries remotely comparable to those alleged by Mr. Pappas: Reichert v. Barbara, 601 So.2d 802 (La.App. 4" Cir. 1992), in which the court awarded plaintiffs $25,000 in globo for damages including those for pain suffered by the five-year-old child (from acid bums sustained in wart removal), medical expenses, as well as residual scarring and its effect on the child. Id. at 803-04. The two cases referenced by the defendants bear no resemblance to this case. Fuselier v. Amoco was a pipeline explosion case resulting in "open flame burns, the most severe of burns." Id. at 1049. The plaintiff in Fuselier "sustained third degree burns over 18% of his body." Id. "He was hospitalized for 24 days during which time he underwent at least eight surgical debridements and a skin graft. . . . reach[ing] maximum medical improvement about ten months post accident." Id. A psychiatrist testified that "four years after the accident, Fuselier was still suffering from chronic pain syndrome and depression." Id. Similarly, Ayres v. Beauregard Electric was a thermal burn case in which the plaintiff "suffered burns over approximately twenty-eight percent of his total body surface." Id. at 136. "Additionally, he sustained a left shoulder injury. . . . [that] require[d] surgery to correct." Id. He underwent two skin grafts and remained in a doctor's care for sixteen months. Id. In contrast to the multiple, painful surgical treatments required of the burn victims in Fuselier and Ayres, there is no indication that Mr. Pappas even went to a doctor. Thus, examining the face of the petition in light of Louisiana jurisprudence, it does not appear that Mr. Pappas' damages exceed the jurisdictional amount.
607 So.2d 1044, 1046-47 (La.App. 3rd Cir. 1992).
663 So.2d 127 (La.App. 3rd Cir.), writ denied, 664 So.2d 455 (La. 1995).
Defendants have also submitted a settlement proposal letter, apparently drafted by plaintiff's counsel, which they argue shows Mr. Pappas' claims to be greater than $75,000. Even treating the unauthenticated document as though it were proper evidence, which it is not, the Court disagrees that the letter aids the defendants. It reveals no facts tending to augment Mr. Pappas' general damages in any significant respect, and it suggests that Mr. Pappas' special damage claims are quite minimal. For example, the letter indicates that Mr. Pappas missed work for only four weeks. Moreover, like the complaint, the letter makes no mention of any medical expenses, surgical treatment, or hospital stays.
The final element of Mr. Pappas' damages that the defendants highlight is his prayer for attorneys' fees. Although Louisiana law provides no basis for awarding attorneys' fees in products liability cases such as this one, defendants argue that plaintiff might seek attorneys' fees under Louisiana's redhibition law. None of plaintiff's allegations, however, even hint at a claim for redhibition. Moreover, even if they did, the amount that Mr. Pappas might recover in attorneys' fees remains "highly speculative." See Price, 2003 WL 203083 at *3. Defendants have submitted no evidence tending to show that an attorneys' fee award on a redhibition claim would bring the value of Mr. Pappas' claims anywhere near $75,000.
In short, if Mr. Pappas had filed his petition solely on his own behalf, this Court would be of the firm opinion that defendants had failed to carry their burden of establishing by a preponderance of the evidence that the amount in controversy exceeds $75,000. This is not the case, however. Mr. Pappas plainly brought this suit as a putative class action. As defendants point out, the Fifth Circuit has held that the aggregate attorneys' fee allowable in class actions under article 595(A) of the Louisiana Code of Civil Procedure "shall be attributed entirely to the class representatives and included in calculating the amount in controversy." See Grant v. Chevron Phillips Chemical Co., 309 F.3d 864, 877 (5th Cir. 2002), cert. denied, 123 S.Ct. 1634 (2003). Here, the defendants have made no showing to the Court as to what such a fee might be in this case. Thus, a finding of jurisdictional amount based on the present record would be based on sheer speculation. On the other hand, plaintiff acknowledges in his Motion to Remand that class certification " could present quantum within the jurisdiction of the federal court." See Plaintiff's Memo at 5 n. 1 (emphasis added). Although he asks the Court to ignore the class allegation for purposes of this motion (stating that "at present . . . [he has] no clear factual basis to assert a class action"), he concedes that he intends to conduct discovery on the issue and is not prepared to abandon the class allegation at this time. Id. Under these circumstances, especially considering that a case may not be removed on diversity grounds more than one year after commencement of the action, the potential for forum manipulation is too great to simply remand the matter without allowing for more in-depth inquiry into the class allegation and the potential for a substantial attorneys' fee attributable to Mr. Pappas.
Based on the apparent value of Mr. Pappas individual damage claim, such a fee would need to equal or exceed $50,000 to bring this matter within the Court's jurisdiction.
This Court will assume that; despite this statement, plaintiffs putative class action petition is "well grounded in fact" to the best of counsel's knowledge, information, and belief "formed after reasonable inquiry." La. C. Civ. P. art. 863(B).
See 28 U.S.C. § 1446(b).
III. CONCLUSION
Accordingly, IT IS ORDERED that the motion is RESET for hearing on August 6, 2003, to enable the parties to conduct discovery and supplement the record on the issue of jurisdictional amount.