Opinion
Civil Action No. SA-04-CA-790-XR.
August 24, 2005
ORDER
On this date, the Court considered Plaintiff's motion for reconsideration (docket no. 25) and Plaintiff's motion for leave to file a motion for remand (docket no. 26).
Plaintiff initially filed this lawsuit in the 407th judicial district court on April 15, 2004. Defendant filed an answer in state court on May 24, 2004. Defendant removed this matter to this court on September 1, 2004. In its removal documents, Defendant stated that when it received discovery responses from Plaintiff, it became aware that Plaintiff was seeking in excess of $75,000. Defendant filed its removal within 30 days of its receipt of the discovery answers. Plaintiff, at that time, filed no motion for remand.
On June 9, 2005, this Court granted Defendant's motion for summary judgment because Plaintiff filed no response and accordingly no genuine issues regarding any material fact were raised. On June 20, the Court reconsidered its Order at Plaintiff's request because the Plaintiff blamed the lack of any response to inattention by his former counsel. The Court granted Plaintiff until July 22 to file a response. Plaintiff secured new counsel and a response was timely filed.
On August 9, 2005, the Court again reviewed Defendant's motion and Plaintiff's response and again granted the motion. The Court stated that Plaintiff again failed to present competent summary judgment evidence that any Home Depot employee (1) used an improper method to load the roofing materials, (2) improperly placed the load on the trailer, or (3) caused any imbalance in the trailer. Plaintiff merely provided a conclusory statement that the 93 bundles of composition roofing shingles were negligently placed behind the trailer's axles. Plaintiff provided no competent summary judgment evidence as to how the quantity of roofing materials purchased that day should have been placed on a trailer such as his.
Plaintiff now files a "motion for leave to file a motion for remand out of time." Plaintiff argues that Defendant's removal was deficient because "Defendant's mere surmise or assertion that the amount in controversy exceeds 75,000 is not supported by evidence of any kind." Plaintiff fails to offer any meaningful excuse as to why he has delayed so long in filing a motion for remand. Plaintiff does not deny that he seeks in excess of 75,000.
The party seeking to maintain federal jurisdiction is required to establish by a preponderance of the evidence that the amount in controversy exceeds $75,000. Grant v. Chevron Phillips Chem. Co. L.P., 309 F.3d 864, 868 (5th Cir. 2002). When the case is one that has been removed from state court, such party may satisfy this burden in either of two ways: (1) by demonstrating that it is "facially apparent" from the petition that the claim likely exceeds $75,000 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). Defendant met its burden. Plaintiff's Original Petition sought extensive actual damages, DTPA damages and punitive damages. This, coupled with Defendant's statement that recent discovery responses verified that Plaintiff's claim exceeded $75,000, was sufficient to satisfy Defendant's removal. Plaintiff's "motion for leave to file a motion for remand out of time" is DENIED.
As to Plaintiff's motion for reconsideration, Plaintiff requests that the Court take notice of an affidavit wherein Plaintiff states, in part, the following: "I have used similar trailers on other occasions . . . and I am familiar with and have specific knowledge of properly loading materials of like weight and type. . . . I observed through the rear view mirror and the side mirrors some of the loading. I saw the Home Depot Fork Lift Operator load two pallets of shingles, side by side onto the rear of the trailer behind the axles. Additionally, I observed through the rear view and side view mirrors other Home Depot employees load, by hand, the other materials shown on the attached invoice including rolls of roofing paper and lumber onto the sides and front of the trailer. . . . ."
Plaintiff offers no excuse why this affidavit was not submitted in response to the Defendant's motion for summary judgment. Fed.R.Civ.P. 59(e). More troublesome is that the affidavit still is insufficient to overcome the Defendant's motion. The Court is sympathetic that Plaintiff suffered injuries from a severe accident. However, competent summary judgment evidence is needed to overcome a motion for summary judgment. It was necessary for Plaintiff, or some other qualified witness, to testify that given the trailer used by Plaintiff it was necessary that the roofing materials be loaded in a certain manner, and the manner needed to be described with some specificity. Although Plaintiff states that he now saw a Home Depot employee "load two pallets of shingles, side by side onto the rear of the trailer behind the axles," it is still necessary for Plaintiff to offer competent summary judgment evidence that such a loading was improper and would cause the trailer to be "imbalanced." The affidavit fails to address these points. Plaintiff's motion for reconsideration, which the Court treats as a Rule 59(e) motion is DENIED.