Opinion
Civil Action No. 04-3482, Section "C" (3).
March 29, 2005
ORDER
This matter comes before the Court on the issue of whether the minimum jurisdictional amount in controversy exists in this removed case. Having determined that the defendant has not shown that the jurisdictional amount was in controversy at the time of removal, this matter is hereby REMANDED to state court pursuant to 28 U.S.C. § 1447(c).
The parties may neither consent to nor waive federal subject matter jurisdiction. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848 (5th Cir. 1999). Bare assertions by the removing party are insufficient to invest a federal court of jurisdiction.Asociacion Nacional De Pescadores A Pequena Escala O Artesanales De Colombis (ANPAC) v. Dow Quimica De Colombia, S.A., 988 F.2d 559 (5th Cir. 1993), cert. denied, 114 S.Ct. 685 (1994). Instead, the Fifth Circuit advises the district courts that they should review their subject matter jurisdiction in cases such as this. Id.; Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999). In order to remain in federal court, the removing parties must prove by a preponderance of the evidence that the jurisdictional minimum exists. Id. This showing may be made by either: (1) demonstrating that it is facially apparent that the claims are likely above the jurisdictional minimum; or (2) setting forth the facts in controversy that support a finding of the jurisdictional minimum. Id. It is the recognized burden of the party invoking jurisdiction "both to allege with sufficient particularity the facts creating jurisdiction, in view of the nature of the right asserted, and, if appropriately challenged, or if inquiry be made by the court of its own motion, to support the allegation." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 287, fn. 10 (1938), citing, McNutt v. General Motors Corp., 298 U.S. 178, 182-189 (1936); Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039 (5th Cir. 1982), cert. denied, 459 U.S. 1107 (1983).
The facts presented do not support a finding of the jurisdictional minimum. This case involves an alleged fall that occurred in June 2004 in one of defendant's store. Suit was filed in November 2004 and removed on the basis of diversity. The removing defendant states that a post-accident MRI shows a herniated disc at C5-6 and C6-7. The plaintiff had a fusion in 1995 at the C4 and C5 levels. The recent MRI allegedly disclosed post-fusion changes at the C5-C6 levels and "defendant is uncertain whether these changes were caused by this fall." (Rec. Doc. 6, p. 2). Defendant also states that plaintiff was scheduled to undergo shoulder surgery in January 2005, but provides no evidence to that effect. The Court contacted counsel for the defendant and gave an additional opportunity to provide any medical evidence it had to support the allegations and was advised that no evidence was available.
Based on the record and the law, the Court finds that the defendant has not shown that the amount in controversy exceeds $75,000 at this time. See e.g., Misewicz v. Gamso, 860 So.2d 119 (La.App. 4th Cir. 2003); Lee v. Alsobrooks, 712 So.2d 1060 (La.App. 5th Cir. 1998). In addition, the Court is mindful that removal jurisdiction is strictly construed. See: Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100 (1941); Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986); Butler v. Polk, 592 F.2d 1293 (5th Cir. 1979); C. Wright, A. Miller E. Cooper, 14B Federal Practice Procedure: Civil, § 3721. When subject matter jurisdiction is doubtful, remand is appropriate. C. Wright, A. Miller E. Cooper, 14C Federal Practice Procedure: Civil, § 3739.
Accordingly,
IT IS ORDERED that this matter be and hereby is REMANDED to the 40th Judicial District Court for the Parish of St. John the Baptist, State of Louisiana, due to a lack of subject matter jurisdiction under 28 U.S.C. § 1447(c).