Opinion
CIVIL ACTION NO. 03-1096, SECTION "C" (5).
July 15, 2003.
ORDER AND REASONS
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).
Although the plaintiff has not responded to the order for briefing on the jurisdictional amount because he is in the process of changing attorneys, the Court can make the necessary determination based on the brief of the defendant, who bears the burden of proving subject matter jurisdiction.
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 a fall from a wheelchair in which the plaintiff struck his head. The primary injury claimed in the petition is aggravation of hearing loss.
As a result of the above described incident, Plaintiff, BRODERICK MORRIS, suffered numerous injuries. In addition to the injuries of cuts, bruises and scrapes, as well as injuries to his nervous system and psyche, past, present, and future, the fall caused the plaintiff to strike his head on the pavement of the ramp and the adjacent surface of the parking lot, and as a result the Plaintiff suffered caused a significant hearing damage. The Plaintiff had imperfect hearing before this accident, which was made significantly worse by the fall.
(Rec. Doc. 1, ¶ IV).
The removing defendant admits that it has no evidence to support a finding of the jurisdictional minimum due to the lack of discovery. It relies on cases which include as damages an award for hearing loss, but which are readily distinguishable from the allegations of injury presented here. In Davis v. Hoffman, 800 So.2d 1028 (La.App. 4th Cir. 2001), a child was hit by a school bus and suffered a closed head injury, contused spleen, fluid on the pelvis, lacerations and some hearing loss severe enough to as to cause extensive hospitalization and missing one year of school and a $300,000 award. The Court can not extrapolate from this award a finding a injury predominately concerning a hearing loss meets the jurisdictional minimum. Similarly, the $90,000 award in Daigle v. Johnson, 633 So.2d 268 (La.App. 1St Cir. 1993), rev'd on other grounds, 721 So.2d 868 (La. 1998), is distinguishable. That case involved an automobile accident wherein the plaintiff suffered severe whiplash and resulting cervical and lumbar strain, and was subsequently diagnosed with irreversible hearing loss and tinnitus. Although these facts are closer to those presented here, that plaintiff's primary injury was orthopedic and, in any event, the severity of that plaintiff's hearing loss was permanent and quantified with medical evidence. Finally the $100,000 award in Russell v. Noullet, 706 So.2d 540 (La.App. 4th Cir.), rev'd on other grounds, 721 So.2d 868 (La. 1998), is also based on injuries much more severe than those claimed here: concussion, post-concussion syndrome, cervical musculoigamentous strain, severe and chronic headaches because of injury to ear, personality problems, visual problems, numbness in the arms, injury to spine muscles and tendons and ligaments, nervous shock and chronic vomiting in addition to tinnitus and partial hearing loss in one ear.
Instead, the facts set forth in the petition present circumstances more akin to those presented in O'Brien v. Remington Arms Co., Inc., 601 So.2d 330 (La.App. 2d Cir.),writ denied, 604 So.2d 1003 (La. 1992). In that case, the plaintiff received a $25,000 award for tinnitus and hearing loss caused by an explosion which occurred while the plaintiff was using a rifle. Similarly, a $35,000 award was sustained inLowery v. Savana, 759 So.2d 1020 (La.App. 2d Cir. 2000), where the plaintiff proved serious injury resulting from a lengthy battery, was bedridden and missed one week of work, continued to suffer headaches, faintness and dizziness, had vision problems and difficulty hearing in one ear and was diagnosed with post-traumatic stress syndrome. In Broussard v. Union Pacific Railroad Co., 700 So.2d 542 (La.App. 2d Cir.),writ denied, 704 So.2d 1202 (La. 1997), a $50,000 award for hearing loss caused by loud noises over a long period of time was given.
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. 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 Civil District Court for the Parish of Orleans, State of Louisiana, due to a lack of subject matter jurisdiction under 28 U.S.C. § 1447(c).