Opinion
CIVIL ACTION NO. 01-1695, SECTION "T" (4)
August 13, 2001
Before the Court is a Motion to Remand filed by the Plaintiff pursuant to 28 U.S.C. § 1447. The matter was considered before this Court on August 1, 2001, without oral argument. The Court, having considered the memoranda filed, the record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS I. Background:
The above-captioned matter arises out of an incident that occurred on June 2, 2001, at the Chevron station located at 447 North Rampart Street in New Orleans, Louisiana. On the evening in question, the Plaintiff allegedly suffered various personal injuries as a result of being beaten by four unknown males while attempting to purchase gasoline from the Defendant. The Plaintiff avers that after being approached by the four unknown males, he repeatedly asked the Chevron attendant to call the police, but the attendant allegedly refused to do so. He subsequently filed suit against the Defendant in the Civil District Court for the Parish of Orleans, State of Louisiana.
On June 4, 2001, the Defendant removed the action to this Court, claiming that diversity jurisdiction existed pursuant to 28 U.S.C. § 1332. The Plaintiff timely filed the instant Motion to Remand, challenging the subject matter jurisdiction of this Court. Specifically, the Plaintiff claims that the amount in controversy in the instant case does not exceed $75,000, the jurisdictional threshold necessary for diversity jurisdiction. Accordingly, the Plaintiff asserts that this matter should be remanded to the Civil District Court for the Parish of Orleans, State of Louisiana.
II. Discussion:
A. The Law on Removal and Remand:
Pursuant to 28 U.S.C. § 1441, any civil action may be removed from state court to federal court if it is proven that the federal court has original jurisdiction. See 28 U.S.C. § 1441. In the instant action, the Defendant claims that removal to federal court is proper based upon 28 U.S.C. § 1332, diversity of citizenship. In removal actions, the removing party bears the burden of establishing that federal jurisdiction exists. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995), cert. denied, 516 U.S. 865, 116 S.Ct. 180, L.Ed.2d 119 (1995). In order to do so under 28 U.S.C. § 1332, the removing party must prove that complete diversity of citizenship exists between the parties and that the amount in controversy exceeds $75,000, exclusive of attorney fees and costs. See 28 U.S.C. § 1332. In the present action, the dispute between the parties concerns the amount in controversy requirement for diversity jurisdiction.
The Plaintiff, in his state court Petition for Damages, does not seek to recover a specific monetary sum; rather, he merely prays for judgment in his favor, as is required by Louisiana law. See LA. Code Civ. Proc. Ann. art. 893(A)(1) (West 1999). In such a situation, "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)). A removing defendant can make such a showing in one of two ways. See Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). First, a defendant may demonstrate that it is "facially apparent" that the Plaintiffs claims are likely above the $75,000 jurisdictional limit. See id. Second, a defendant may set forth the facts in controversy that support a finding of the requisite jurisdictional amount. See id. This requires a defendant to submit "summary judgment type evidence" to support the claim that the actual amount in controversy exceeds the jurisdictional limit. See De Aguilar, 47 F.3d at 1412.
In Associacion Nacional de Pescadores a Pequena Escala o Artesanales de Columbia ("ANPAC") v. Dow Quimica de Colombia S.A., the Court of Appeals for the Fifth Circuit specifically identified three circumstances in which a removing party will fail to satisfy its burden of proving that removal is warranted. See ANPAC, 988 F.2d 559, 566 (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, 199 S.Ct. 1563 (1999). The Fifth Circuit explained that:
[a]t least where the following circumstances are present, the [removing party's] burden 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 [$75,000]; (2) the defendants offered only a conclusory statement in their notice of removal that was not based on direct knowledge about the plaintiffs' claims; and (3) the plaintiffs timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present.Id.
If such is the case, then removal is improper. However, it is important to note that "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
B. Application to the Facts:
As stated above, because Louisiana law prohibits the Plaintiff from pleading a specific amount of monetary damages, Pruden has 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 Plaintiff's claim exceeds the jurisdictional amount of $75,000. In his Petition for Damages, Pruden contends that he sustained "physical injuries including but not limited to injuries to the muscles, ligaments, tendons, and other structures of the head, face and eye." Plaintiff's Petition for Damages, ¶ X. Additionally, the Plaintiff avers that he was hospitalized as a result of these injuries and was required to undergo unspecified medical treatment, all of which caused him to incur medical expenses. Id. The Plaintiff further claims that he "suffered physical pain and keen mental anguish" and that he incurred a loss of earnings. Id. Finally, the Plaintiff claims that his "conditions may continue, worsen or become permanent and full residuals and sequela [sic] of his injuries are as yet not fully known but will be severe."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 Plaintiff's 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 the Luckett framework, the Court determines that the Plaintiff's petition more closely resembles the petition in Simon rather than the petition inLuckett. The Plaintiff in the present case does not allege loss of property, emergency transportation, a specific length of hospitalization, or specific types of medical treatments. Simply put, Pruden's 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 Plaintiff's 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 Plaintiff's claim must exceed $50,000, exclusive of interest and costs. While the Plaintiff's 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 Plaintiff's petition.
Because the requisite jurisdictional amount is not "facially apparent" in the Plaintiff's petition, the Court must now determine whether the Defendant has shown by a preponderance of the evidence, with "summary judgment like" proof, that the Plaintiff's claim exceeds $75,000. With regard to the jurisdictional amount, the Defendant's Notice of Removal merely states the following:
The plaintiff is seeking damages from Chevron for his "severe personal injuries[,]'including damages for `physical pain and mental anguish,' `medical expenses,' and loss of earnings. . . .Although the plaintiff has not specified his damages, it is apparent that his potential damages exceed the jurisdictional requirement of SEVENTY-FIVE THOUSAND AND NO/100 ($75,000) DOLLARS.
Defendant's Notice of Removal, ¶ IV.
While the Defendant summarily contends that it is apparent that the Plaintiff's damages exceed the jurisdictional amount, this Court disagrees. The Defendant asserts that the "overwhelming evidence clearly shows" that the Plaintiff's damages exceeded $75,000 at the time of removal. See Defendant's Memorandum in Opposition to Motion to Remand, page 4. 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 Plaintiff's 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.
III. 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 Plaintiff's Motion to Remand be, and the same is hereby, GRANTED.
IT IS FURTHER ORDERED that the above-captioned matter, Case Number 01-1695, be, and the same is hereby REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.