Opinion
No. 00-1901
August 23, 2000
ORDER AND REASONS
Before the Court is Plaintiffs' Motion to Remand. For the following reasons, the Motion is GRANTED.
A. BACKGROUND
On July 3, 1999, Rudesia Crockett allegedly slipped, fell and broke her leg in the Clearview Sears. On June 12, 2000, Rudesia's parents, Alesia Crockett and Rudy Fletcher, filed suit against Sears and Liberty Mutual Insurance Company in the 24th Judicial District Court for Jefferson Parish, Louisiana, alleging, inter alia, that
As a result of this accident, Rudesia Fletcher sustained severe and disabling bodily injuries with consequential general and special damages, including without limitation physical pain and suffering, a broken left tibia, mental anguish, permanent disability, emotional distress, loss of enjoyment of life, humiliation, medical bills, and a broken pair of glasses . . . .
Petition V. Alesia Crockett, who witnessed the slip and fall, also seeks damages for mental anguish. Id. VI. On June 29, 2000, Defendants Sears and Liberty Mutual timely removed the state court action to this Court on the basis of diversity jurisdiction, claiming in their Notice of Removal that the damages alleged in paragraph V of the Petition are worth in excess of $75,000. Plaintiff contests Defendants' valuation of damages and now moves the Court to remand the case to state court.
B. LAW AND ANALYSIS
A defendant may remove a civil action brought in state court to a federal district court that would have had jurisdiction had the plaintiff opted to bring the action there. See 28 U.S.C. § 1441. Where, as here, jurisdiction is premised on diversity of citizenship, the parties must be diverse and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332 (a). The removing defendant must prove by a preponderance of the evidence that the jurisdictional amount is satisfied either (1) by demonstrating that it is apparent from the face of the Petition that the claims are likely to exceed $75,000 or (2) by setting forth facts in controversy that support a finding of the requisite amount. See Simon v. Wal-Mart Stores. Inc., 193 F.3d 848, 850 (5th Cir. 1999); Luckett v. Delta Airlines. Inc., 171 F.3d 295, 298 (5th Cir. 1999).
In the case at bar, Defendants have taken the first tack, asserting that it is facially apparent that Plaintiffs' claims are likely to exceed $75,000. The Court disagrees. As the cases cited by both Plaintiffs and Defendants indicate, damage awards for broken legs vary widely; therefore, it is not apparent from the face of the Petition that Plaintiffs' claims are likely to exceed $75,000, even when the Plaintiffs' allegations of permanent disability are considered. SeeGirvan, 646 So.2d 481 (plaintiff with permanent impairment received award less than $75,000); Parker v. Millar Elevator Servs. Co., 2000 WL 64289 at *3 (E.D. La. Jan. 26, 2000) (finding plaintiffs allegation of permanent disability insufficient to establish jurisdictional amount and remanding action to state court). Because Defendants have not set forth facts in controversy that support a finding of the requisite amount, they have failed to meet their burden of showing that the jurisdictional amount is satisfied.
Compare Prejean v. East Baton Rouge Parish Sch. Bd., 729 So.2d 686 (La.App. 1st Cir. 1999) (trial court awarded $35,000 in general damages and $15,682 in medical expenses for "severe" leg fracture), writ denied, 743 So.2d 209 (La. 1999), and Girvan v. New Orleans Pub. Serv.. Inc., 646 So.2d 481 (La.App. 4th Cir. 1994) (affirming jury verdict of $2200 in medical expenses, $1200 in lost wages, and general damages of $35,000 "to an active man in his mid-30s who suffered a broken leg [tibia and fibula], required approximately six months of treatment, and has permanent impairment of his leg caused by misalignment of the bones during the healing process"), writ denied, 650 So.2d 1178 (La. 1995), withFleming v. Smith, 638 So.2d 467 (La.App. 5th Cir. 1994) (affirming award of $76,800 for broken fibula in right leg and tom cartilage in left knee), Burdis v. Lafourche Parish Police Jury, 618 So.2d 971 (La.App. 1st Cir. 1993) (awarding $50,000 in general damages, $20,000 for past and future medical expenses, and $24,500 in lost earnings to plaintiff whose fractured tibia and fibula had not healed properly and who reported pain three years after accident), writ denied, 620 So.2d 843 (La. 1993), Suhre v. Jefferson Parish Sch. Bd., 601 So.2d 718 (La.App. 5th Cir. 1992) (total award of $108,346.05 for broken leg and pelvis included $2,000 for future medical expenses and $20,000 for permanent cosmetic disfigurement), and Roberts v. State. through Dep't of Transp. and Dev., 576 So.2d 85 (La.App. 2d Cir. 1991) (finding $150,000 general damage award appropriate for plaintiff who "suffered a very severe injury to her left leg [a compound fracture of the left femur], which will apparently continue to give her pain and preclude her from activities she was able to perform prior to the injury"), writ denied, 581 So.2d 685 (La. 1991).
The evidence submitted by Plaintiffs indicates that Defendants could not set forth such facts. As shown by copies of medical bills, a sworn affidavit, and a February 2, 2000, demand letter, Plaintiffs request approximately $2600 in medical expenses and $12,500 in general damages. See Fairchild v. State Farm Mut. Auto. Ins. Co., 907 F. Supp. 969, 971 (M.D. La. 1995) (a "settlement letter is valuable evidence to indicate the amount in controversy at the time of removal") (citingWilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir. 1994)).
C. CONCLUSION
For the reasons set forth above, IT IS ORDERED that Plaintiffs' Motion to Remand is GRANTED and the case is hereby REMANDED to the 24th Judicial District for the Parish of Jefferson, State of Louisiana, for further proceedings.