Opinion
CIVIL ACTION NO. 03-0130.
April 14, 2003
ORDER AND REASONS
Before the Court is the Motion for Remand filed by Plaintiff, Melissa U. Levy, on January 28, 2003. For the following reasons, Plaintiff's motion is GRANTED.
BACKGROUND
The instant case is before the Court from the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, pursuant to a Notice of Removal filed by Defendants, Clifford J. Stockstill and National Casualty Insurance Company, on January 14, 2003. Defendants maintain that removal was proper because the amount in controversy exceeds the requisite jurisdictional amount and the controversy is between citizens of different states for purposes of 28 U.S.C. § 1332, 1441. Contending that the jurisdictional amount established by § 1332 is not met here, Plaintiff filed a sworn stipulation with her motion to remand, stating that her and her daughter's damages do not exceed $75,000, exclusive of interest and costs.
The material facts are not in dispute. Plaintiff is a resident of Louisiana. Defendant Clifford J. Stockstill is a resident of Mississippi. Mr. Stockstill's insurer, Defendant National Casualty Insurance Company, is a foreign company with its principal place of business in Arizona. This suit arises out of an automobile accident that occurred on December 7, 2001, while both parties were driving on Interstate 10 in St. Tammany Parish, Louisiana. Plaintiff's minor daughter, Jaclyn B. Levy, was a passenger in her vehicle at the time of the accident. Mr. Stockstill's vehicle allegedly struck Plaintiff's vehicle when Mr. Stockstill changed lanes on I-10.
On December 3, 2002, Plaintiff sued Defendants in Louisiana state court, seeking damages for past and future physical pain and suffering, past and future mental anguish, past and future medical expenses, and property damage that she and/or her daughter allegedly sustained or will sustain as a result of the December 7, 2001 automobile accident. Plaintiff further alleges that the accident and resulting damages to Plaintiff and her daughter were caused by Mr. Stockstill's negligence. As required under Louisiana law, Plaintiff did not plead a specific monetary amount of damages in her petition. See La. Code Civ. P. art. 893.
LAW AND ANALYSIS
"Except as otherwise expressly provided by Act of Congress," any civil action brought in state court over which United States district courts have original jurisdiction may be removed to the appropriate federal district court. 28 U.S.C. § 1441(a). A district court will be found to have original jurisdiction under § 1332(a) where the amount in controversy exceeds $75,000, exclusive of interest and costs, and is between citizens of different states. 28 U.S.C. § 1332(a)(1). Removal based on diversity jurisdiction under § 1332 is proper, however, only if none of the defendants properly joined and served is a citizen of the state in which the action is brought. 28 U.S.C. § 1441(b). Here, all of the parties agree, and from the facts it is evident, that complete diversity exists and that neither defendant is a citizen of Louisiana. Thus, the sole issue to be decided for purposes of Plaintiff's motion to remand is whether the amount in controversy exceeded $75,000, exclusive of interest and costs, at the time of removal.
The burden of establishing that federal jurisdiction exists rests with the removing party. Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). In cases where the plaintiff's petition does not specify an amount in controversy, such as this one, the Fifth Circuit has established a framework for evaluating the jurisdictional amount for purposes of diversity jurisdiction. Under that framework, the removing defendant can meet its burden of proving by a preponderance of the evidence that the amount in controversy has been met by showing (1) that it is "facially apparent" from the petition that the amount in controversy likely exceeds the jurisdictional amount, or by (2) "setting forth the facts in controversy . . . that support a finding of the requisite amount." Luckett v. Delta Airlines, Inc. 171 F.3d 295, 298 (5th Cir. 1999) (quoting Allen, 63 F.3d at 1335). Once the removing party has met this burden, the plaintiff must then show with legal certainty that her recovery will not meet the jurisdictional amount. De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
In determining whether the removing party has met its burden, the court must look to the facts of the case as they existed at the time of removal. Allen, 63 F.3d at 1335. Thus, although a plaintiff may not defeat removal by thereafter modifying the demand, a post-removal stipulation by the plaintiff may be used to clarify the amount in controversy at the time of removal, if the basis for diversity jurisdiction was ambiguous then. See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000) (summary calendar) (if facially apparent that amount in controversy exceeds $75,000, post-removal affidavits, stipulations, and amendments reducing the amount do not deprive court of jurisdiction); De Aguilar, 47 F.3d at 1407 (same); Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Columbia (ANPAC) v. Dow Quimica de Columbia, S.A., 988 F.2d 559, 565 (5th Cir. 1993) (affidavit regarding damages may clarify petition leaving jurisdiction question ambiguous).
Even if post-removal affidavits are considered, however, they may be rebutted by evidence adequately demonstrating that the jurisdictional amount is satisfied. See De Aguilar, 11 F.3d 55, 57-58 (5th Cir. 1993) (affidavits rebutted by the defendant); Nelson v. Nationwide Mut. Ins. Co., 192 F. Supp.2d 617 (E.D.La. 2001) (interrogatory response rendered the plaintiff's stipulation of damages ineffective for purposes of evaluating motion to remand).
Because Plaintiff's petition does not set forth a specific amount in damages, the Court must determine whether Defendants have shown by a preponderance of the evidence that, exclusive of interest and costs, the amount in controversy exceeds the requisite $75,000. Consideration of Embry v. Southern County Mutual Insurance Co., 2000 WL 135920, at *2 (E.D. La.), a case involving facts similar to those here, is particularly helpful to this analysis. There, the court found that it was not facially apparent from the plaintiff's petition that the amount in controversy had been met where the plaintiff's claims were "fairly typical," and failed to indicate the seriousness of the accident and the severity of the resultant injuries. Id. Much like the instant case, Embry involved an automobile accident where the defendant's vehicle struck the plaintiff's vehicle while "improperly" changing lanes. Id. at 2. The petition in Embry described the plaintiff's injuries as "severe and disabling . . . including, but not limited to, neck and back injuries." Id. Except for the addition of a claim for damages for loss of enjoyment of life, the plaintiff in Embry sought the same categories of damages claimed by Plaintiff here. Given the nature of the allegations in the petition and that the plaintiff did not allege lost wages or loss of earning capacity, or claim that she was hospitalized, required surgery or therapy, or suffered from chronic or permanent pain, the court in Embry found that it was not facially apparent that the plaintiff's damages satisfied the jurisdictional amount. Id. at *2-3.
Considering the vague description provided in the petition of the December 7, 2001 accident and Plaintiffs and her daughter's resulting injuries and damages, the Court likewise finds that it is not facially apparent in this case that the jurisdictional amount is met. Significantly, Plaintiff's petition does not identify the specific injuries, or the extent of those injuries, suffered by Plaintiff and her daughter. Cf. Nelson v. Nationwide Mutual Ins. Co., 192 F. Supp.2d 617, 619 (E.D.La. 2001) (not facially apparent from petition that the jurisdictional amount was satisfied, despite detailed categorical descriptions of the damages sought, because petition did not describe nature and extent of injury allegedly sustained). In addition, Plaintiff does not allege that she or her daughter required or will require emergency transportation, hospitalization or surgery, or that any permanent disability, disfigurement, or pain has or will result. Cf. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 849-51 (5th Cir. 1999); Bonck v. Marriot Hotels, Inc., 2002 WL 31890932, *2-3 (E.D. La.); Jacob v. Greyhound Lines, Inc., 2002 WL 31375612, *2-3 (E.D. La.); Embry, 2000 WL 135920 at *2-3. In fact, the petition contains no explanation of the medical treatment that has been or will be necessary or appropriate. Cf. Simon, 193 F.3d at 851; Jacob, 2002 WL 31375612 at *2; Embry, 2000 WL 135920 at *2-3. Nor does Plaintiff seek to recover damages for lost wages or lost earning capacity. See Embry, 2000 WL 135920 at *2-3. Finally, Plaintiff's petition contains no description of the property damage allegedly suffered in the accident.
Furthermore, the cases proffered by Defendants in support of their opposition to Plaintiff's motion to remand provide little assistance. Defendants cite cases where the courts have held that, even though a specific amount in controversy is not stated in the initial petition for damages, it still is facially apparent from the damages described that the amount in controversy requirement is met. All of those cases, however, are distinguishable from the instant case. De Aguilar involved a wrongful death suit. 11 F.3d 55, 56-57 (5th Cir. 1993). In Marcel v. Pool Co., 5 F.3d 81, 82-84 (5th Cir. 1993) (summary calendar), the plaintiff sustained multiple, severe injuries requiring surgery and hospitalization. In Fairchild v. State Farm Mut. Auto Ins. Co., 907 F. Supp. 969 (M.D.La. 1995), the plaintiff's petition indicated that she sought to recover damages for "severe injuries," past and future loss of her earnings as a dentist, and mental anguish resulting from concern about potential injuries to her unborn child. Similarly, in Martin v. Turner, Civil Action No. 01-3411 (E.D. La. 1/16/03), plaintiff Mr. Martin suffered injuries to his cervical spine and teeth, and sought damages for lost past, present, and future wages, as well as residual disability, prolonged pain and suffering, emotional distress and mental anguish, and past, present, and future medical expenses allegedly resulting from the automobile accident in question. Plaintiff Ms. Martin allegedly suffered the same types of damages from complications with her pregnancy and premature delivery caused by the automobile accident. Further, the Martins' then-unborn child also allegedly was born premature as a result of the accident, had a heart murmur, and was behind developmentally. See Minute Entry entered on January 17, 2003, at 2.
In addition, the plaintiffs' damages in De Aguilar, Marcel and Fairchild had only to exceed $50,000, exclusive of interest and costs, to satisfy the requisite jurisdictional amount.
Additionally, in evaluating whether the jurisdictional amount has been satisfied for removal purposes, courts often look to see if the plaintiff has asked for a jury trial. In Louisiana state court, a jury trial is available only if the amount in controversy exceeds $50,000, exclusive of interest and costs. See La. Code Civ. P. art. 1732(1). Here, Plaintiff has not requested a jury trial. Although certainly not definitive, this fact provides additional support for the conclusion that it is not facially apparent from Plaintiff's petition that the amount in controversy exceeds $75,000.
Because it is not facially apparent from the petition that the amount in controversy has been met, Defendants must present "summary-judgment-type evidence" from which the Court can conclude that any recovery in the instant case will exceed the jurisdictional amount, if they wish to remain in federal court. De Aguilar, 47 F.3d at 1412; Embry, 2000 WL 135920 at *2. The Court, however, has been provided with only extremely limited facts surrounding the accident and has not been shown any evidence as to the nature or the extent of the injuries from which a reasonable assessment of the damages can be made. Indeed, Defendants offer no more evidence than that which the face of Plaintiff's petition provides. Specifically, Defendants merely state in their Memorandum in Opposition to Motion to Remand that ". . . by examining the petition as well as the nature of the alleged injuries it is facially apparent that these claims could exceed the requisite amount in controversy. First, the plaintiff alleges that she sustained `Medical expenses — past and future,' `Physical pain and Suffering — past and future,' `Mental anguish — past and future' and property damage." By offering only conclusory statements regarding their assessment as to the amount of damages likely to result from this case, Defendants fail to make the necessary showing. See Allen, 63 F.3d at 1335 (removal cannot be based on only conclusory allegations).
See Memorandum in Opposition to Motion to Remand at 3.
It is clear from the jurisprudence cited herein that Defendants must establish by a preponderance of the evidence that the requisite jurisdictional amount is satisfied. Defendants have failed to meet that burden. Thus, the Court finds that removal was improper and that the case should be remanded.
CONCLUSION
Because it is not facially apparent from Plaintiff's petition that the damages sought here likely will exceed $75,000, exclusive of interest and costs, and Defendants have not offered sufficient evidence demonstrating that the amount in controversy required for diversity jurisdiction exists, Defendants' removal of this action was improper. Accordingly, for the foregoing reasons, IT IS ORDERED that Plaintiff's Motion for Remand is GRANTED.