Opinion
CIVIL ACTION NO. 03-1900, SECTION: "T" (2)
August 21, 2003
ORDER AND REASONS
Before the Court is a Motion to Remand, filed by the plaintiff, Sylvester Daniels ("Daniels"). The Court, having considered the arguments of the parties, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
I. BACKGROUND:
The plaintiff, Daniels, was involved in a motor vehicle accident on or about June 29, 2002, with Brenda Griffin Magee ("Magee"). The accident was caused by the negligence of Magee. The plaintiff settled with Magee for her policy limits often thousand dollars (s10,000.00). On March 20, 2003, plaintiffs uninsured motorist carrier, Metropolitan Property and Casualty Insurance Company ("Metropolitan"), made an unconditional tender of four thousand four hundred dollars ($4,400.00) to plaintiff. On June 11, 2003, Metropolitan made another unconditional tender to plaintiff of fifty-five thousand six hundred dollars ($55,600.00). The plaintiff then filed suit against his uninsured motorist carrier, Metropolitan, in the Civil District Court for the Parish of Orleans. The defendant filed notice of removal to the United States District Court for the Eastern District of Louisiana based upon diversity of citizenship jurisdiction, and that the amount in controversy exceeded the federal jurisdictional amount of seventy-five thousand dollars ($75,000.00). The plaintiff subsequently filed this motion to remand the case back to the Civil District Court for the Parish of Orleans. The plaintiff asserts that diversity jurisdiction is destroyed because the amount in controversy does not exceed seventy-five thousand dollars ($75,000.00), and that the case should be remanded. The defendant argues that diversity jurisdiction is not destroyed because the amount in controversy does exceed seventy-five thousand dollars (S75,000.00).
II LAW AND ANALYSIS:
A. The Law on Removal and Remand:
The removing party bears the burden of establishing that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.), cert. denied, 516 U.S. 865, 116 S.Ct. 180, L.Ed.2d 119 (1995). Further, "unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith." Id.
"When the plaintiffs complaint does not allege a specific amount of damages, 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). However, the Fifth Circuit states that the preponderance burden forces the defendant to do more than point to state law that might allow the plaintiff to recover more than what is pled. Id.
Jurisdictional facts that support removal must be judged at the time of removal. Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (1995). Moreover, once diversity jurisdiction has attached, it cannot be subsequently divested by the voluntary reduction of the amount in controversy below jurisdiction. 28 U.S.C. § 1447(c); St. Paul Indemnity Co. v. Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Reisman v. New Hampshire Fire Ins. Co., 312 F.2d 17 (5th Cir. 1963); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256 (5th Cir. 1995). Any evidence submitted after the complaint has been filed is allowable only if relevant to the time of removal. Asociacion Nacional de Pescadores v. Dow Quimica de Colombis S.A., 988 F.2d 559 (5th Cir. 1993), cert. denied, 510 U.S. 1041, 114 S.Ct. 685, 126 L.Ed.2d 653 (1994); De Aguilar v. Boeing Co., 47 F.3d 1404 (5th Cir. 1995).
Additionally, "a unilateral, post-removal stipulation does not deprive the removal court of jurisdiction." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed.2d 845 (1938); Candies v. Monsanto Co., 1998 WL 57055 (E.D.La.). 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.
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 [S75,000]; (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 seventy-five thousand dollars ($75,000.00) 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 L.Ed. 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.
The prevailing law in this area was summarized by the Fifth Circuit in the recent case of Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) as follows:
Several Fifth Circuit decisions have established a clear analytical framework for resolving disputes concerning the amount in controversy. Plaintiffs in Louisiana state courts, by law, may not specify the numerical value of the damage claim. La. Code Civ. P. an. 893. In such a situation, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993). 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 S75,000, 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."Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) (emphasis in original). Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999)
In Fairchild v. State Farm Mutual Automobile Insurance Co., 907 F. Supp. 969 (M.D.La. 1995), the court found that a settlement letter from the plaintiffs attorney evaluating her claim at one hundred ten thousand dollars ($110,000.00) 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.La. 1 995) (citing Wilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir. 1994)).
B. The Court's Analysis
In the present case, plaintiff argues that the case should be remanded because Metropolitan has unconditionally tendered sixty thousand dollars (S60,000.00) to Daniels, thereby limiting the amount in controversy to forty thousand dollars ($40,000.00). This amount represents the difference between the one hundred thousand dollar (S100,000.00) policy limit and the amount thus far paid. The plaintiff takes this reasoning from Payne v. State Farm Mutual Automobile Insurance Company, 266 F.2d 63, 65 (5th Cir. 1969), which states that in a case where a claim is asserted on an insurance policy limiting liability, the amount of the claim can be determined with legal certainty. The amount in controversy is the value of the policy and not the amount claimed in good faith by the plaintiff. Carnes Co. v. Employers' Liability Assurance Corp., 5th Cir. 1939, 101 F.2d 739.
Although this is true, the defendant has provided evidence to show that the amount in controversy may exceed seventy-five thousand dollars ($75,000.00). In a letter to defendant dated June 7, 2003, plaintiffs counsel evaluated his claim against defendant at around one hundred fifty thousand dollars ($150,000.00). As stated above, in Fairchild v. State Farm Mutual Automobile Insurance Co., 907 F. Supp. 969 (M.D.La. 1995), a settlement letter from the plaintiffs attorney evaluating her claim at one hundred ten thousand dollars ($110,000.00) 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.La. 1995) (citing Wilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir. 1994)). Therefore, this letter could also be considered valuable evidence of the amount in controversy.
The defendant also conveyed to plaintiff an Irrevocable Stipulation, dated July 21, 2003. The defendant requested that plaintiff stipulate that he does not assert damages in excess of seventy-five thousand dollars ($75,000.00). As of now, plaintiff has not made such stipulation. Again, as stated above, 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. Therefore, here, in the absence of such stipulation, this is evidence that damages are in excess of seventy-five thousand dollars (S75,000.00), and thus the case cannot be remanded. This court concludes that Defendant has proven by a preponderance of the evidence that the amount in controversy exceeds seventy-five thousand dollars (S75,000.00).
Accordingly,
IT IS ORDERED that the Motion to Remand of the plaintiff, Sylvester Daniels, is hereby DENIED.