MEMORANDUM OPINION and ORDER

JOHN McBRYDE, United States District Judge

Came on for consideration the motion of plaintiff, Rudy Rodriguez, to remand. Having reviewed the motion, the response of defendant, Conagra Foods, Inc., and applicable authorities, the court concludes that the motion should be granted.

I. Background

Plaintiff instituted this suit in the 17th Judicial Court, Tarrant County, Texas, on August 5, 2002, alleging disability discrimination in violation of Chapter 21 of the Texas Labor Code. Pet. at 4. Defendant removed the action to this court by notice of removal filed September 12, 2002, claiming both diversity jurisdiction and federal question jurisdiction.

In his motion to remand, plaintiff urges that neither form of jurisdiction exists. Mot. at 1. First, plaintiff challenges diversity jurisdiction on the ground that defendant has not satisfied its burden that the amount in controversy exceeds $75,000. Id. at 2-3. Second, plaintiff disputes federal question jurisdiction because his petition alleges only state-law causes of action. Id. at 4. In response, defendant maintains that both forms of jurisdiction exist, and that, regardless, plaintiff waived his right to remand by engaging in discovery and other pre-trial matters following removal. Resp. at 1.

II. Diversity Jurisdiction

Under 28 U.S.C. § 1441, a cause of action is removable if it might have been originally brought in federal court. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). District courts have original jurisdiction over a cause of action where there is complete diversity between all parties and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332; Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). Plaintiff contends that defendant failed to meet its burden as to the amount in controversy. Mot. at 3.

Plaintiff does not specify in his petition the amount of damages that he seeks. If no amount in controversy is stated, the removing defendant must show by a preponderance of the evidence that the amount in controversy exceeds $75,000. Luckett, 171 F.3d at 298 (citing De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993)); HD Tire Auto. — Hardware Inc. v. Pitney Bowes. Credit Corp., 227 F.3d 326, 328 n. 2 (5th Cir. 2000). A defendant may make this showing in one of two ways: "(1) 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.Luckett, 171 F.3d at 298 (internal citations and quotations omitted). In its notice of removal, defendant made only the conclusory allegation that the amount in controversy exceeded $75,000. Notice of Removal at 2.

In his motion to remand, plaintiff states that it is highly unlikely that his economic damages will meet the threshold, and that the other compensatory and punitive damages that he seeks "are not readily susceptible to calculation." Mot. at 3. In response, defendant points to the nature of plaintiff's allegations and the damages he seeks to show the likelihood that the amount in controversy exceeds $75,000: "[Plaintiff] specifically seeks lost wages and benefits; compensatory and punitive damages for physical pain, including future pecuniary losses, emotional pain, suffering, in convenience [sic], mental anguish, and loss of enjoyment of life; and attorney's fees." Resp. at 4-5 (referring to Pet. at 4).

While plaintiff indeed seeks these damages, the court concludes that defendant has failed to satisfy its burden that it is more likely than not that plaintiff's damages will exceed the $75,000 threshold. See Luckett, 171 F.3d at 298. At this stage of the litigation, the court is not inclined to speculate or assume the amount in controversy so as to improvidently confer diversity jurisdiction in this case.

III. Federal Ouestion Jurisdiction

Pursuant to 28 U.S.C. § 1441(b), "[a]ny civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." See also 28 U.S.C. § 1331. The court determines the existence of federal question jurisdiction by applying the "well-pleaded" complaint rule, whereby the court examines what appears on the face of plaintiff's complaint. Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983).

Plaintiff's petition does not state a federal claim on its face. Instead, plaintiff relies exclusively on a state-law cause of action for disability discrimination under the Texas Labor Code. Nevertheless, defendant argues that "[j]urisdiction in this Court is proper because [plaintiff] asserts a claim under the Americans with Disabilities Act (`ADA')." In support of this puzzling position, defendant points not to plaintiff's petition, but rather, to plaintiff's charge of discrimination filed with the Equal Employment Opportunity Commission ("EEOC"). In the EEOC charge, plaintiff states: "I believe I was discriminated against because the company regarded me as having a disability based on medical records, which is a violation of the Americans with Disabilities Act of 1990." Def.'s App. at 15. Defendant contends that because plaintiff's petition referenced the charge, he "made the charge and its federal allegations therein a part of his Petition." Resp. at 2 (referring to Pet. at 3).

Defendant's argument that the EEOC charge magically transforms plaintiff's petition into one asserting federal claims lacks merit. The well-pleaded complaint rule makes plaintiff the "master of the claim" for removal purposes, meaning that he "may avoid federal jurisdiction by exclusive reliance on state law." Caterpillar, 482 U.S. at 392 n. 7. Plaintiff has not engaged in "artful pleading" to disguise a federal claim as a state claim. Plaintiff's allegations of discrimination may give rise to a viable state-law claim, as well as a federal claim, and he exercised his option to sue on the state-law claim only. See, e.g., Caterpillar, 482 U.S. at 392 n. 7; Lamb v. Laird, 907 F. Supp. 1033, 1035 (S.D.Tex. 1995). Plaintiff may avoid removal by alleging only state-law claims and disregarding federal ones. See, e.g., Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995) (stating: "A plaintiff with a choice between federal- and state-law claims may elect to proceed in state court on the exclusive basis of state law, thus defeating the defendant's opportunity to remove . . ."). Accordingly, federal question jurisdiction does not exist in this case.

IV. Waiver of Remand

Defendant argues that, irrespective of the propriety of diversity jurisdiction or federal question jurisdiction, plaintiff waived his right to remand by engaging in discovery and initiating a Rule 26(f) conference. Resp. at 6. This argument wholly lacks merit: "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);see also FED. R. Civ. P. 12(h)(3). The court concludes that plaintiff did not waive his right to remand where his objection is premised on the court's lack of subject matter jurisdiction.

Therefore, this court lacks jurisdiction to hear plaintiff's claims and the case must be remanded. However, the court has concluded that an award to plaintiff against defendant of attorneys' fees and other costs and expenses would be inappropriate in this case.

V. ORDER

For the reasons discussed,

The court ORDERS that plaintiff's motion to remand be, and is hereby, granted.

The court further ORDERS that the above-captioned action be, and is hereby, remanded to the state court from which it was removed.