Opinion
CIVIL ACTION NO. 01-3411, SECTION "K"(5).
January 16, 2003.
MINUTE ENTRY
Before the Court is Motion to Remand filed by plaintiffs, Kenneth Martin and Terry Martin, individually and on behalf of their minor child, Kaitlynn Martin. Having reviewed the petition, the memoranda and the relevant law, the Court finds no merit in the motion.
On September 7, 2001, plaintiffs filed a Petition for Damages in the Civil District Court for the Parish of Orleans, State of Louisiana. In the petition, they allege that Glenn D. Turner, the owner of a 1995 Toyota and Robert Dowell, Jr., who drove that car, and State Farm Mutual Automobile Insurance Company ("State Farm"), the insurer of Glen Turner, and the unnamed insurer of Robert Dowell are liable to plaintiffs for damages caused by an accident that occurred on September 9,2000 when Terry Martin, who was pregnant with Kaitlynn Martin, and Kenneth Martin were struck by the Toyota driven by Dowell.
Kenneth Martin alleged that he sustained injuries to his cervical spine and loose front teeth as well as a tooth being knocked out. Kenneth Martin also alleged lost wages, past, present and future. (Petition ¶ IX). Terry Martin alleged complications with her pregnancy, back problems causing the pregnancy to be more painful, a hole in her water bag which grew as the pregnancy continue causing her to deliver before term, her left leg, migraine headaches and lower back pain which goes deep into her left hip. (Petition ¶ X). It is also alleged that Kaitlynn Martin was born prematurely as a result of the collision, has a heart murmur and is behind developmentally.
Based on these injuries, all three plaintiffs complain of prolonged pain and suffering, past, present and future; medical expenses, past, present and future; and emotional distress and mental anxiety, past, present and future. The two adults also seek residual disability and reduced earning capacity; and lost wages, past, present and future.
This matter was removed to the Court by State Farm on November 13, 2001. On June 6, 2002, plaintiffs filed a Stipulation with the Clerk of Court avowing that "plaintiffs' damages do not exceed $75,000." On December 9, 2001, the instant Motion to Remand was filed.
The motion to remand should be denied, because it is facially apparent from the petition that the claims are likely to be above $75,000.00. In Smith v. Walmart Stores, Inc. 1995 WL 716773 (E.D. La.), this Court outlined the test for determining whether amount in controversy is sufficient to confer jurisdiction:
While it is well settled that the removing party bears the burden of establishing the facts necessary to show that federal jurisdiction exists, (citations omitted) we have applied different standards of proof depending upon whether the complaint alleges a dollar amount of damages. Where the plaintiff has alleged a sum certain that exceeds the requisite amount in controversy, the amount controls if made in good faith (citation omitted). In order for a court to refuse jurisdiction ""it [must] appear to a legal certainty that the claim is really for less than the jurisdictional amount. . . .
The converse situation . . . where a plaintiff fails to specify the amount in controversy . . . does not impose the same legal certainty test. Instead, ""[w]hen the plaintiff's complaint does allege a specific amount of damages the removing defendant must prove by a preponderance of the evidence that amount in controversy exceeds [$75,000.00].Id. at *1.
The instant matter presents ""the converse situation"" since Louisiana law prevents a plaintiff from alleging a specific dollar amount. In the instant case, the preponderance of the evidence test demonstrates that from the allegations contained in plaintiffs' petition, it is facially apparent from that the claims are likely above $75,000 amount in controversy. Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
Once a defendant has established, by a preponderance of the evidence, that the amount in controversy is sufficient to confer jurisdiction to the federal courts, the burden shifts back to the plaintiff to show, to a legal certainty, that the claim is really for less than the jurisdictional amount. De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). Where state law prevents a party from pleading a specified amount of damages (as Louisiana's law does), and the claim is for unliquidated damages, one way for a plaintiff to satisfy the legal certainty test is to ""file a binding affidavit with the complaint.""Robinson v. Delchamps, Inc., 1998 WL 352131 (E.D. La.) (citingDe Aguilar, 47 F.3d at 1412). ""Litigants who want to prevent removal must file a binding stipulation or affidavit with their complaints; once a defendant has removed the case . . . later filings [are] irrelevant."" De Aguilar, 47 F.3d at 1412. This affidavit must be filed along with the complaint. Id.
At this point, the plaintiffs' post removal efforts to persuade the Court that their claims will be less than $75,000.00, are not meritorious. If the plaintiffs wanted to ensure that their claims remained in state court, they could have easily filed a binding stipulation with the petition. However, since they has neglected to do so, they are bound to the description of their claims as set forth in the petition, which clearly indicates a recovery in excess of the jurisdictional amount. Accordingly,
IT IS ORDERED that the Motion to Remand (Doc. 10) is DENIED.