Opinion
Civil Action No: 00-0773, Section: "J"(1)
June 22, 2000
MINUTE ENTRY
In its June 22, 2000 minute entry, the Court vacated its earlier order to remand this case pursuant to the Fifth Circuit's mandate and re-opened the matter. See In re New Orleans Steamboat Co., No. 00-30605 (5th Cir. June 21, 2000). The Court's order to remand resulted from the disposition of plaintiff's Motion to Dismiss and to Remand (Rec. Doc. 8), where the Court held, sua sponte, that the action was not removable because of a defect in the removal procedure. Because it disposed of plaintiff's motion on grounds not raised in the motion, and did not reach the question of whether diversity jurisdiction is present, the Court must now revisit the Motion to Dismiss and to Remand.
In her motion, plaintiff moves the Court to remand this matter because her damages will not exceed the amount in controversy requirement of $75,000. Plaintiff also moves for attorneys' fees and costs associated with the alleged improper removal and remand. Defendants dispute plaintiff's argument, noting that damages in this case could very well exceed the jurisdictional amount.
Defendants also point out that, subsequent to the court's earlier remand order, plaintiff has amended her state court petition to allege that her damages now exceed $75,000. However, the Court must look at the status of plaintiffs damages as of the time of removal, not some later date. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851 (5th Cir. 1999). Moreover, plaintiff cannot stipulate to or waive objection to federal subject matter jurisdiction. Id. at 850.
To satisfy diversity jurisdiction in federal court, there must be complete diversity of citizenship between the parties and the amount in controversy must exceed $75,000.00. 28 U.S.C. § 1332. As this matter was removed from state court, defendants bear the burden of establishing that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Essentially, defendants must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount of $75,000. Id. Then, "[i]f a defendant can show that the amount in controversy actually exceeds the jurisdictional amount, the plaintiff must be able to show that, as a matter of law, it is certain that he will not be able to recover more than the damages for which he has prayed in the state court complaint." Id. at 1411.
Here, the Court finds that defendant did not carry its burden. The parties' diversity of citizenship is not in dispute, and plaintiff's original state court petition, although not alleging a specific amount of damages, does state that "Petitioner's claim does not appear to exceed the sum of $75,000.00 in damages, exclusive of legal interest and court costs at this time." Petition, ¶ VIII.
In a case such as this, where the state court petition does not contain a specific monetary demand, the Fifth Circuit has articulated a clear analytical framework for evaluating whether federal subject matter jurisdiction exists.
In such a situation, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. The defendant may make this showing in either of two ways: (1) by demonstrating that it is "facially apparent" that the claims are likely above $75,000, or (2) by setting forth facts in controversy — preferably in the removal petition, but sometimes by affidavit — that support a finding of the requisite amount.Simon 193 F.3d at 850.
The Notice of Removal filed by defendants fails to set forth specific facts to support a finding of the requisite jurisdictional amount in controversy. Instead, defendants have merely referred to plaintiff's state court petition and have made only conclusory allegations that "upon information and belief' plaintiffs damages exceed $75,000. Defendants did not file any supporting affidavit to show why these claims exceed the amount in controversy requirement.
In fact, not until plaintiff filed her motion to remand did defendants file any type of evidence" to attempt to meet its burden of demonstrating the existence of diversity jurisdiction. With their opposition memorandum, defendants attached a letter dated April 7, 1999 from plaintiff to defendant New Orleans Steamboat Company.
Plaintiff's original state court petition claims damages allegedly sustained when a large table on the MAT Natchez fell on plaintiffs foot, causing her foot to be "crushed". In a letter sent to defendants, plaintiff stated that the falling table "shattered" her big toe, that her trip to New Orleans was mined, that she spent $6,500.00 in her trip to New Orleans, and that she has difficulty wearing certain types of shoes. Exhibit "A", Defendants' Opposition. Plaintiff's petition seeks recovery for "any and all damages sustained as a result of the accident, including past, present and future mental and physical pain and suffering, past, present and future medical expenses, disability, loss of enjoyment of life, loss of insurability, loss of earning capacity and any other damages sustained by the plaintiff. . . ." Petition, ¶ VII. Despite the litany of damages contained in the Petition, plaintiff alleges a fracture of her big toe. It is not "facially apparent" that plaintiffs claims would exceed $75,000.00.
See: Allen v. J.C. Penny Co., Inc., 2000 WL 381935 (E.D.La. April 12, 2000) (Sear, J.) (remanding claim for aggravation of pre-existing back condition, where plaintiff alleged damages for pain and suffering, lost wages, and $21,000 in past medical expenses); Embry v. Southern County Mutual Insurance Company, 2000 WL 135920 (E.D.La. February 4, 2000) (remanding claim involving "severe and disabling injuries" to plaintiffs neck and back, with MRI diagnosis of herniated discs at C3-4 and C4-5 levels); Bourgeois v. GES, Inc., No. 99-3196 (Minute Entry of December 10, 1999) (Sear, J.) (remanding claim for "crushing injury" to plaintiffs foot, including allegations of pain and suffering damages and lost wages).
Defendants rely upon plaintiffs letter to demonstrate that her damages will exceed the $75,000 jurisdictional amount. Defendants maintain that plaintiff's alleged "permanent functional and mobility impairments, along with significant changes to her activities of daily living, presents the likelihood of a damage claim in excess of $75,000. of course, this would be in addition to any claim for medical expenses and other special damages, e.g., $6,500 in expenses while [plaintiff] was in Louisiana."Defendants' Opposition, at 3, ¶ 2.
The Court disagrees that this letter containing nothing more than bald allegations satisfies defendant's burden to prove that plaintiff's damages will likely exceed the jurisdictional amount. A claim for a broken toe, although potentially severe, will unlikely exceed $75,000, regardless of any accompanying mental distress and discomfort. Furthermore, to the extent that there is uncertainty concerning whether plaintiff's claim will exceed the jurisdictional amount, "[d]oubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction." Acuna v. Brown Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).
Accordingly, because this Court lacks subject matter jurisdiction, pursuant to 28 U.S.C. § 1447(c),
IT IS ORDERED that plaintiff's Motion for Remand is GRANTED and that this matter should be and is hereby REMANDED to the Civil District Court for the Parish of Orleans.
Under the circumstances of this case, the Court declines to award attorneys' fees and associated costs. See Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000) ("It is well settled that the district court has broad discretion in determining the appropriateness of an award of attorneys' fees.").