Opinion
CIVIL ACTION NO. 04-2072, SECTION "R" (3).
December 30, 2004
ORDER AND REASONS
Before the Court is plaintiff Betty Whiddon's motion to remand this case to the 21st Judicial District Court for the Parish of Tangipahoa. Defendant Wal-Mart Stores, Inc. removed the case to this Court based on diversity jurisdiction and opposes the motion to remand. For the following reasons, the Court denies plaintiff's motion to remand.
I. BACKGROUND AND PROCEDURAL HISTORY
On January 31, 2003, plaintiff Betty Whiddon went shopping at the Wal-Mart store located in Hammond City, Tangipahoa Parish, Louisiana. Whiddon alleges that several shopping carts pushed by an employee identified only as "ABC Employee," struck and injured her.
On January 30, 2004, Whiddon sued Wal-Mart Stores for damages in state court. She also named "ABC Employee" in her complaint. On July 23, 2004, Wal-Mart removed the action to this Court under 28 U.S.C. § 1441(a). Wal-Mart grounded jurisdiction on diversity of citizenship under 28 U.S.C. § 1332. Wal-Mart argues that the parties are diverse and attaches Whiddon's discovery responses, in which Whiddon states that the amount in controversy exceeds $75,000.
On August 20, 2004, Whiddon moved the Court to remand this matter. Whiddon does not dispute that she and Wal-Mart reside in different states and that the amount in controversy is greater than $75,000. Instead, she indicates that she plans to amend the complaint to identify "ABC Employee," whom she believes is a Louisiana resident who, once identified, will destroy diversity. On November 8, 2004, the Court ordered Whiddon to amend her complaint to identify "ABC Employee" by December 15, 2004. That date has now passed and Whiddon has not moved to amend her complaint. Accordingly, the Court now considers the merits of Whiddon's motion to remand.
II. LEGAL STANDARD
A defendant may typically remove a civil action filed in state court if the federal court would have had original jurisdiction. See 28 U.S.C. § 1441(a). The removing party bears the burden of establishing the existence of federal jurisdiction. See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). Generally, the jurisdictional facts supporting removal are examined as of the time of removal. See Gebbia v. Walmart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000); Asociacion Nacional de Pescadores a Pequena Escala O Artesanales de Colombia ("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, 526 U.S. 574 (1999); Bonck v. Marriott Hotels, Inc., 2002 WL 31890932, at *1 (E.D. La. Dec. 30, 2002). The Court must remand the case to state court "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction[.]" 28 U.S.C. § 1447(c).
III. DISCUSSION
Wal-Mart grounds jurisdiction on diversity of citizenship under 28 U.S.C. § 1332. For the Court to have diversity jurisdiction over this action, the action must be between citizens of different states and the matter in controversy must exceed $75,000. 28 U.S.C. § 1332.
A. Diversity of Citizenship
Whiddon argues that the Court should remand because she plans to amend the complaint to substitute the true identity of "ABC Employee." Whiddon believes "ABC Employee" is a Louisiana resident who, once identified and substituted for the fictitious defendant named in the complaint, will destroy diversity between the parties. Wal-Mart argues that courts disregard fictitious defendants for purposes of removal and asserts that diversity jurisdiction exists because Wal-Mart and Whiddon are citizens of different states.
Section 1441(a) states that for the purposes of removal, "the citizenship of defendants sued under fictitious names shall be disregarded." 28 U.S.C. § 1441(a). Notwithstanding the apparent clarity of this language, several district courts have found that, in certain circumstances, a court may consider an unnamed defendant's citizenship. See, e.g., Tompkins v. Lowe's Home Ctr., 847 F. Supp. 462, 464 (E.D. La. 1994); Culbertson v. Smelter Mutual Ins. Co., No. CIV.A. 97-1969, 1997 WL 610869, at *2 (E.D. La. Sept. 30, 1997). They reason that when plaintiff's complaint provides a definite clue about the identity of a fictitious defendant, a court should consider the fictitious defendant's citizenship. See Tompkins, 847 F. Supp. at 464; Culbertson, 1997 WL 610869, at *2. The Court is not persuaded that the unambiguous language "shall be disregarded" allows for the proposed exception. See Newcombe v. Adolf Coors Co., 157 F.3d 686, 690 (9th Cir. 1998) ("citizenship of defendants sued under fictitious names shall be disregarded for purposes of removal"); Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 948 (6th Cir. 1994); Alonzo v. Shoney's, Inc., No. Civ.A. 00-3109, 2001 WL 15641 (E.D. La. Jan. 5, 2001); Dry v. Doe, Civ. A. No. 96-2045, 1996 WL 431128 (E.D. La. July 31, 1996); Rogoz v. Shell Oil Co., Civ.A. No. 90-4963, 1991 WL 42552 (E.D. La. Mar. 22, 1991). And, even if section 1441(a) allows for such an exception, Whiddon's petition does not contain sufficient allegations regarding the identity of the employee to justify consideration of his citizenship. Therefore, the Court will not consider "ABC Employee's" citizenship in determining whether it has jurisdiction over this matter.
The Court notes that it may permit a plaintiff to amend her complaint to substitute a non-diverse party for a fictitious defendant under the factors set forth in Hensgens v. Deere Co., 833 F.2d 1179 (5th Cir. 1987). If the Court permits an amendment under Hensgens, the Fifth Circuit has held that substitution of a non-diverse party for a fictitious defendant destroys diversity for jurisdictional purposes and requires remand. Doleac v. Michalson, 264 F.3d 470, 475-77 (5th Cir. 2001). Even though jurisdiction is generally fixed at the time of removal, Doleac holds that a district court may, if it permits amendment of the complaint to substitute the identify of a fictitious defendant under Hensgens, consider that post-removal change in parties in determining whether diversity jurisdiction has been destroyed. Id. at 477.
Plaintiff has not challenged Wal-Mart's assertion that the parties are citizens of different states. Accordingly, the Court finds that Wal-Mart has met its burden to show that the parties are diverse.
B. Amount in Controversy
In its notice of removal, Wal-Mart asserts that the amount in controversy exceeds $75,000. Wal-Mart attaches Whiddon's discovery responses, in which Whiddon states that her claim is valued at greater than $75,000. Whiddon does not dispute Wal-Mart's contention that the amount in controversy requirement is met.
Louisiana law prohibits a plaintiff from pleading a specific amount of monetary damages. See LA. CODE CIV. PROC. art. 893. When the plaintiff has alleged an indeterminate amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); see also De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). A defendant makes this showing when it is facially apparent that the claims are likely to exceed $75,000. See Allen, 63 F.3d at 1335. In the alternative, the defendant can set forth the facts in controversy, preferably in the removal petition, but sometimes by affidavit or stipulation, that support a finding of the requisite amount. See id. The defendant must do more than point to a state law that might allow plaintiff to recover more than what is pleaded; the defendant must submit evidence that establishes that the actual amount in controversy exceeds $75,000. See De Aguilar, 47 F.3d at 1412. If the defendant meets its burden in either of these ways, the plaintiff must then show with legal certainty that her claims are for less than $75,000. See id. at 1411-12.
Here, Wal-Mart has submitted evidence, in the form of an admission by Whiddon herself, that Whiddon's claims are for more than $75,000. Whiddon has not challenged Wal-Mart's evidence or shown that her claims are for less than $75,000. The Court finds that Wal-Mart has met its burden to show that the jurisdictional amount has been established. Because the parties are diverse and the amount in controversy exceeds $75,000, the Court finds that it has diversity jurisdiction over this matter under 28 U.S.C. § 1441(a) and 28 U.S.C. § 1332.
III. CONCLUSION
For the foregoing reasons, the Court denies Whiddon's motion to remand.