Opinion
Civil No. EP-03-CA-479(KC)
February 13, 2004
ORDER
Plaintiff moves to remand the present case to state court. For the reasons set forth herein, the motion is denied.
I. BACKGROUND
The following allegations are taken from plaintiff's First Amended Original Petition. Plaintiff is a resident of El Paso, Texas. Defendant is a Michigan corporation which does business in El Paso.
Defendant's Notice of Removal contains both plaintiff's original state court petition and the amended petition which serves as the relevant complaint for purposes of this action. The amended petition provided is missing page two. The pagination of pages one and three of the two petitions indicates that there was no substantial modification to page 2, thus the allegations in the original page 2 are assumed to be the same in both petitions. Notwithstanding this assumption, defendant is directed to file a copy of page 2 of the amended petition as it is the operative complaint for purposes of this action.
Plaintiff, a woman forty-six years of age, was employed by defendant from July 1998 until April 6, 2002. In March 2002, plaintiff was given a bonus of $2,728 rather than the expected bonus of $3,637, which was attributed to an adverse evaluation notwithstanding the fact that she was not given a periodic evaluation. In April 2002, plaintiff's position was allegedly eliminated, as a result of which defendant terminated her employment. On January 22, 2002, plaintiff was denied the opportunity to apply for the position of Director of Accounting, which was given to a much younger woman unqualified for the requirements of the position. Plaintiff thereafter filed a charge of discrimination with the Texas Human Rights Commission and the Equal Employment Opportunity Commission alleging age discrimination. Plaintiff filed her original petition in County Court at Law Number Seven for El Paso County, Texas on May 3, 2003. She thereafter filed an amended petition on October 24, 2003. Defendant removed the case to this Court on November 19, 2003.
Plaintiff seeks monetary damages in the form of wages and benefits denied her since May 5, 2002, compensatory damages pursuant to § 21.2585 of the Texas Labor Code, attorney's fees, costs and expert fees pursuant to § 21.259 of the Texas Labor Code and prejudgment interest.
II. DISCUSSION
Plaintiff argues that defendant cannot establish that there is more than $75,000 in controversy as required by 28 U.S.C. § 1332(a). Defendant responds that there is sufficient evidence to establish that the amount in controversy exceeds the jurisdictional amount.
Plaintiff does not argue that there is any question as to diversity of citizenship, as such would be contrary to her pleadings. As such, the present Order is limited to discussion of the jurisdictional amount.
A. Standard
Defendant bears the burden of showing that removal was proper. Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998). "As the party invoking federal diversity jurisdiction, [defendant] bears the burden of establishing the amount in controversy by a preponderance of the evidence." Hartford Ins. Group v. Lou-Con Inc., 293 F.3d 908, 910 (5th Cir. 2002). The complaint is first examined to determine if it is facially apparent that the claims exceed the jurisdictional threshold. Id. If a basis for jurisdiction is not facially apparent, a court may then consider "summary judgment type evidence" addressing "jurisdictional facts . . . judged as of the time the complaint is filed." Id. Doubts as to the existence of federal jurisdiction are to be resolved in favor of state court jurisdiction. Acuna v. Brown Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).
B. Amount in Controversy
Plaintiff argues that a declaration in her petition that "the maximum amount claimed . . . is $75,000" forecloses defendant's claim that this Court has diversity jurisdiction and further that she mitigated damages thus reducing any award below the jurisdictional threshold. Defendant responds that plaintiff may not deprive a court of jurisdiction through such an affirmative declaration and that it can establish that the amount in controversy exceeds the threshold amount.
Plaintiff's argument that this Court is without jurisdiction by virtue of her allegation that the maximum amount claimed is below that required for diversity jurisdiction is without merit. This argument has been raised and rejected on two grounds. First, Texas Rule of Civil Procedure 47(b), governing claims for unliquidated damages as in the present case, provides that "[a]n original pleading . . . shall contain . . . in all claims for unliquidated damages only the statement that the damages sought are within the jurisdictional limits of the court." (Emphasis added.) As plaintiff's allegation defining an amount of unliquidated damages violates Rule 47(b), it will not be considered in assessing whether the amount in controversy affords this Court jurisdiction. De Aguilar v. Boeing Co., 47 F.3d 1404, 1412-13 (5th Cir. 1995). Second, the practice of pleading a jurisdictional amount in an effort to defeat federal jurisdiction, in the present case $75,000 vice an amount that "exceeds . . . $75,000," 28 U.S.C. § 1332(a), whether in the ad damnum clause or elsewhere in the complaint, constitutes "manipulation . . . surely characterized as bad faith," De Aguilar, 47 F.3d at 1410, that "cannot . . . be condoned." Boelens v. Redman Homes, Inc., 759 F.2d 504, 507 (5th Cir. 1985). A plaintiff may not unilaterally act "to destroy the jurisdictional choice that Congress intended to afford a defendant in the removal statute." Id.
As plaintiff's attempt to limit her claim via pleading is invalid, the question becomes whether defendant can establish that the amount in controversy exceeds $75,000. De Aguilar, 47 F.3d at 1413. The complaint, on its face, identifies only one monetary value, the roughly $1,000 differential between the bonus expected and bonus received by plaintiff. As such, this Court's jurisdiction is not evident from the face of the complaint and jurisdiction must therefore depend on evidenced adduced establishing that the controversy involves in excess of $75,000.
The evidence of damages submitted by the parties revolves around the questions of lost wages and mitigation of damages through subsequent employment. "[T]he jurisdictional facts that support removal must be judged at the time of the removal." White v. FCI USA, Inc., 319 F.3d 672, 676 (5th Cir. 2003). There is no dispute that plaintiff was earning $86,600 per annum and claims lost wages from May 5, 2002. As the case was removed on November 19, 2003, a period of over 18 months later, plaintiff's wages claim would be $133,230.77.
While the lost wages alone would appear to exceed the amount required for diversity jurisdiction, plaintiff adds the following information relevant to mitigation through her affidavit. She obtained employment at El Paso First Health Network on December 30, 2002, earning a salary of $50,000 per year. Plaintiff received as additional $12,000 in unemployment benefits. Adding the two numbers valued at the time the case was removed equates to $44,383.56 in salary and $12,000 in benefits, or $56,383.56. As such, the "value of the claim." Hartford Ins. Group, 293 F.3d at 911, deducting the amounts provided by plaintiff from the lost wages claim, would be $76,847.21, an amount in excess of the $75,000 as required for diversity jurisdiction.
While a defense may not impart jurisdiction when jurisdiction would otherwise be lacking in the face of a well-p leaded complaint, Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987), the present analysis concerns an assessment of the amount of plaintiff's claim in the present case. A preclusion on recovery imposed by the relevant state law may be considered during the summary judgment-style analysis, as this Court may not turn a blind eye to apparently undisputed evidence of mitigation when it reduces the potential recovery. As the parties do not brief the question of whether under Texas law a plaintiff has a duty to mitigate, it suffices to say that the Texas Legislature "intended to correlate state law with federal law in employment discrimination cases," Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003), and as a matter of federal law all amounts earned in mitigation are deducted from lost wages. 42 U.S.C. § 2000e-5(g)(1). See Lakeway Land Co. v. Kizer, 796 S.W 2d 820, 828 (Tex.App. 1990) (discussing mitigation in discrimination cases); Bush v. Roadway Express, Inc., 152 F. Supp.2d 1123, 1126 (S.D. Ind. 2001) (applying a similar analysis reducing amount based on duty to mitigate damages under state law). While this in no way constitutes an exhaustive study of the existence of a duty to mitigate under Texas law, such is not required as the analysis serves only to prove that this Court has jurisdiction whether plaintiff's mitigation evidence is considered or not.
III. CONCLUSION
Plaintiff's motion to remand (Doc. No. 6) is denied.
SO ORDERED.