Opinion
Civil Action No. 00-2919 Section "T"(5)
October 25, 2000
Before the Court is a Motion to Remand filed on behalf of the plaintiff, Troy Rodrigue. The parties waived oral argument and this matter was submitted for the Court's consideration on October 25, 2000. The Court, having considered the memoranda filed, the Court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
In September 1999, the Plaintiff, Troy Rodrigue, was standing on a dock located in Port Aransas, Texas, when a mooring line allegedly broke from a barge and struck the Plaintiff in the leg. Rodrigue claims that he sustained immediate injuries to his knee and leg as a result of the aforementioned accident. Subsequently, Rodrigue filed a Petition for Damages against the Defendants in the Thirty-Second Judicial District Court for the Parish of Terrebone.
On September 29, 2000, the Defendant, Tetra Technologies, Inc., timely filed a Notice of Removal, alleging that diversity jurisdiction existed under 28 U.S.C. § 1332. Specifically, Tetra alleged that complete diversity of citizenship exists because the Plaintiff fraudulently joined Global Industries as a Defendant. In addition, Tetra alleged that the amount in controversy exceeds the jurisdictional limit required by federal law to evoke subject matter jurisdiction on diversity grounds.
On October 6, 2000, the Plaintiff timely filed a Motion to Remand, in which he stipulates that the amount in controversy is below the jurisdictional limit required to invoke diversity jurisdiction. Specifically, the Plaintiff filed with his Motion to Remand a sworn affidavit in which he stipulates that "[his] claim is worth less than $75,000, exclusive of interest and costs." Accordingly, the Plaintiff claims that the present action should be remanded to state court.
The Defendant timely filed a Memorandum in Opposition to Motion to Remand, in which it argues that removal was proper. Tetra claims that at the time of removal the Plaintiff had made a settlement demand in an amount in excess of $75,000. To support this argument, the Defendant attached an affidavit and copy of a letter of settlement from the plaintiff dated July 25, 2000. Therefore, the Defendant claims that the amount in controversy exceeded the jurisdictional limit at the time of removal to warrant federal jurisdiction in this matter.
II. DISCUSSION:
A. The Law on Removal and Remand:
Pursuant to 28 U.S.C. § 1441, any civil action maybe 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). 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).
If a defendant is successful in proving that the amount in controversy exceeds the jurisdictional limit, the burden shifts to the plaintiff to show with legal certainty that he or she will not be able to recover more than $75,000. See De Aguilar, 47 F.3d at 1411-12. If a plaintiff is able to do so, then the case will be remanded to state court. See id. However, once diversity jurisdiction has attached, it cannot be subsequently divested by the voluntary reduction of the amount below the jurisdictional limit. 28 U.S.C. § 1447(c); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 LEd. 845 (1938); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256 (5th Cir. 1995). Furthermore, any evidence submitted after the complaint has been filed is allowable only if relevant to the time of removal. See ANPAC, 988 F.2d at 565. Accordingly, a unilateral, post-removal stipulation or affidavit will not deprive the removal court of jurisdiction. See St. Paul Mercury Indemnity Co., 303 U.S. at 292. Nevertheless, a post-removal stipulation or affidavit may be successful in effectuating a remand in cases in which such is used to clarify an ambiguous petition, rather than reduce the initial amount in controversy after removal. See Marcel v. Pool Co., 5 F.3d 81, 85 (5th Cir. 1993); ANPAC, 988 F.2d at 565.
B. Application to the Facts:
As stated above, because Louisiana law prohibits the Plaintiff from pleading a specific amount of monetary damages, the Plaintiff 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, the Plaintiff contends that he sustained "immediate injury to his leg and knee" as a result of the accident. (Plaintiff's Petition for Damages, page 2, paragraph 8). However, the petition does not contain a description of the nature and extent of the injury that the Plaintiff allegedly sustained. In addition, the Plaintiff contends, with virtually no specificity, that he is entitled to both general and special damages, including past and future pain and suffering, humiliation, loss of enjoyment of life, past and future lost wages, and medical expenses, both past and future.
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 quite rise to the level of the facts set forth in prior cases to "facially" support removal. For example, in Luckett, 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, 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 "describes damages inadequately to support removal." See id. Therefore, the Court finds that the jurisdictional amount required for removal 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. In its Notice of Removal, the Defendant has submitted no evidence, but merely states that "based on the allegations in plaintiff's Petition for Damages, the matter in controversy exceeds the sum of $75,000." (Doc. No. 1, page 3, paragraph 10). 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.
However, attached to its Memorandum in Opposition to the Plaintiff's Motion to Remand, the Defendant submits an affidavit of Defense counsel and a copy of a letter of settlement from Plaintiff's counsel received by Defense counsel on September 19, 2000, ten days prior to filing the Notice of Removal. In that letter, Plaintiff's counsel describes the nature and extent of Rodrigue's injuries and medical expenses with particularity. Plaintiffs counsel further demands $75,023.55 in damages, an amount slightly greater than the jurisdictional limit required for removal.
In Fairchild v. State Farm Mutual Automobile Insurance Co., 907 F. Supp. 969 (M.D.L.A. 1995), the court found that a settlement letter from the plainitff's attorney evaluating her claim at $110,000 two months prior to removal was "valuable evidence to indicate the amount in controversy at the time of removal."Fairchild v. State Farm Mutual Automobile Insurance Co., 907 F. Supp. 969, 971 (W.D.L.A. 1995) (citing Wilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir. 1994)). This Court agrees, for the letter of settlement and the supporting affidavit are sufficient to support the allegation that the jurisdictional amount exceeded $75,000 at the time of removal. The letter of settlement specifically states the medical procedures that the Plaintiff underwent and the amount of medical expenses incurred by the Plaintiff as of July 2000. It also lists the amount of lost wages incurred by the Plaintiff and states that the Plaintiff continues to suffer from pain in his knee. Such letter and affidavit are helpful in clarifying an ambiguous petition. Accordingly, the Court determines that the Defendant has shown by a preponderance of the evidence, with "summary judgment like" proof, that the Plaintiff's claim exceeds the jurisdictional amount.
Finally, the Court addresses the Plaintiff's post-removal stipulation, in the form of a sworn affidavit, that his claim does not exceed the jurisdictional amount. As mentioned above, a plaintiff may not defeat removal by subsequently changing his damage request. See St. Paul Mercury Indemnity Co., 303 U.S. at 292. However, when the case is such that the Plaintiff's petition does not contain a request for a specific amount of damages, a post-removal affidavit may be considered by the Court in deciding whether remand is proper. See ANPAC, 988 F.2d. at 565. However, such an affidavit is useful only in limited circumstances. See Id. Specifically, a post-removal stipulation or affidavit may be successful in effectuating a remand in cases in which they are used to clarify, an ambiguous petition, rather than reduce the initial amount in controversy after removal. See Marcel, 5 F.3d at 85; ANPAC, 988 F.2d at 565. In the present action, the Court finds that the Plaintiff's stipulation of damages is not effective to warrant remand because it constitutes an attempt on behalf of the Plaintiff to voluntarily reduce the amount in controversy below the jurisdictional limit. The letter of settlement from Plaintiff's attorney detailing the extent of the Plaintiff's injuries and requesting a specific amount of damages indicates that the amount in controversy exceeded $75,000 prior to removal. Therefore, the Plaintiff's attempt to deprive this Court of jurisdiction through a unilateral, post-removal stipulation will not be successful.
III. CONCLUSION:
For the foregoing reasons, the Court finds that Defendant has proven that it is more likely than not that the amount in controversy exceeds the jurisdictional amount required for removal.
Accordingly,
IT IS ORDERED that the Motion to Remand filed on behalf of the Plaintiff be, and the same is hereby, DENIED.
New Orleans, Louisiana, this 25th day of October, 2000.