Summary
finding plaintiffs allegation of permanent disability insufficient to establish jurisdictional amount and remanding action to state court
Summary of this case from Crockett v. Sears, Roebuck Co.Opinion
Civ. No. 99-3468, SECTION: "R" (4).
January 26, 2000.
ORDER AND REASONS
Before the Court is the motion of plaintiff to remand. Because defendants have not proved by a preponderance of the evidence that plaintiff's claims exceed the jurisdictional amount, the Court grants the motion to remand.
I. BACKGROUND
On October 19, 1998, plaintiff, Mariah Parker, was shopping at a Sears store located on Clearview Parkway in Metairie, Louisiana. She sustained personal injuries when a store escalator malfunctioned, causing her to fall.
On October 7, 1999, plaintiff instituted this suit against defendants in the 24th Judicial District Court for the Parish of Jefferson. Defendants, Sears Roebuck Co. and Liberty Mutual Insurance Co., timely removed the action to this Court on the grounds of diversity jurisdiction. In their notice of removal, defendants asserted that plaintiff's claims exceed $75,000 "upon information and belief."
Plaintiff now seeks to remand this case on the grounds that the jurisdictional amount on her claims is $75,000 or less.
II. DISCUSSION
A defendant may generally remove a civil action filed in state court if the federal court would have had original jurisdiction. See 28 U.S.C. § 1441 (a). Here, defendant asserted federal subject matter jurisdiction and removed this case on the basis of diversity of citizenship and an amount in controversy in excess of $75,000. See 28 U.S.C. § 1441(b), 1332.
The removing party bears the burden of establishing the existence of federal jurisdiction. See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). The jurisdictional facts supporting removal are examined as of the time of removal. See Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Columbia ("ANPAC") v. Dow Quimica de Colombia S.A., 988 F.2d 559, 565 (5th Cir. 1993), abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998), rev'd on other grounds, 119 S.Ct. 1563 (1999). Nevertheless, the case must be remanded to state court "[i]f at any time before final judgment it appears that the district court lack subject matter jurisdiction." 28 U.S.C. § 1447 (c).
Louisiana law prohibits the plaintiff from pleading a specific amount of monetary damages. See LA. CODE Civ. PROC. art. 893. When the plaintiff has alleged an indeterminate amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). A defendant makes this showing when it is facially apparent that the claims are likely to exceed $75,000. See Allen, 63 F.3d at 1335. In the alternative, the defendant can set forth the facts in controversy, preferably in the removal petition, but sometimes by affidavit or stipulation, that support a finding of the requisite amount. See id. The defendant must do more than point to a state law that might allow plaintiff to recover more than what is pled; the defendant must submit "summary-judgment-type evidence" to establish that the actual amount in controversy exceeds $75,000. See De Aguilar, 47 F.3d at 1412. Once a defendant shows that the amount in controversy exceeds $75,000, the burden shifts to the plaintiff to show with legal certainty that she will not be able to recover more than the amount claimed in the state court complaint. See id. at 1411-12.
In ANPAC, the further Fifth Circuit identified the following circumstances in which the removing party fails to satisfy its burden of showing that removal is appropriate:
(1) the complaint did not specify an amount of damages, and it was not otherwise facially apparent that the damages sought or incurred were likely above [$75,000]; (2) the defendants offered only a conclusory statement in their notice of removal that was not based on direct knowledge about the plaintiff's claims; and (3) the plaintiff timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present.988 F.2d at 566. After reviewing the complaint, the notice of removal, and the parties' briefs, this Court concludes that defendants have failed to satisfy their burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75,000.
Because the complaint failed to allege a specific amount of damages, defendants must prove an amount in controversy in excess of $75,000. The Court first looks to the face of the complaint to determine whether the amount in controversy is facially apparent. The petition describes her injuries as "a lumbar strain, cervical strain, a bilateral shoulder strain, strain of her arms and hands, [and] aggravation of a pre-existing arthritic condition." (Pet. ¶ 5.) Plaintiff also alleges that the defendants are liable for "physical pain and suffering, mental anguish, permanent disability, medical expenses past, present, and future, [and] loss of enjoyment of life." ( Id.) Plaintiff does not, however, allege lost wages or that her injuries required surgery. Moreover, the Court finds no indication in the record that plaintiff requested a trial by jury in state court, which requires the claim to be for at least $50,000. See LA. CODE CIV. PROC. art. 1732(1).
Sears filed an opposition to plaintiff's motion to remand. In its opposition, Sears cites numerous state court cases involving purportedly similar injuries in which elderly plaintiffs recovered greater than the $75,000 jurisdictional minimum. Upon review, the injuries sustained in the cited cases were generally more extensive than Ms. Parker's. For example, in Gaston v. G D Marine Services, Inc., 631 So.2d 547, 549 (La.App. 4th Cir. 1994), the plaintiff was hospitalized for several weeks following the accident and was still seeking treatment at the time of trial, some three years later. The Gaston plaintiff also underwent arthroscopic surgery. See id. In Dupre v. Insurance Company of North America, the injured seaman plaintiff was taken immediately to the hospital at the time of injury and sought treatment for a litany of neck and back problems and suffered from psychological problems. See 646 So.2d 461 (La.App. 4th Cir. 1994). Moreover, the Court's independent research reveals several cases involving injuries similar to plaintiff's in which the courts awarded damages substantially below the $75,000 threshold. See, e.g., Lloyd v. Dixie Lloyds Insurance Company, 595 So.2d 400 (La.App. 3 Cir. 1992) ($9,000 for cervical and lumbar strain in addition to an aggravation of preexisting arthritic condition of her knee); Fowler v. Wal-Mart Stores, 716 So.2d 511 (La.App. 2nd Cir. 1998) ($25,000 for complaints of lower back sprain, aggravation of pre-existing degenerative spinal arthritis with residual problems); Howard v. City off Alexandria, 581 So.2d 321 (La.App. 3rd Cir. 1991) ($10,000 for one year intermittent lumbar and cervical soft tissue injury). Thus, the cases relied upon by defendant do not amount to a preponderance of the evidence.
Finally, although plaintiff alleges permanent disability, this is not sufficient for the case to be retained in this Court. In Palmer v. Wal-Mart Stores, Inc., 1996 WL 20862, at *1 (E.D. La. Jan. 17, 1996), the court granted plaintiff's motion to remand even when plaintiff alleged that she sustained severe and possibly permanent injuries, because her allegations were "fairly vanilla" and did not reveal the extent of her injuries. Id. Therefore, the Court finds that given the accident described in the petition, it is not facially apparent that plaintiff's claims are more likely than not to exceed $75,000.
Because the defendant has not satisfied the facially apparent test, the Court considers whether the defendant submitted "summary-judgment-type evidence" to establish the amount in controversy. Here, as in ANPAC, defendant has submitted no evidence of the true value of plaintiff's claims but merely averred in its petition for removal that the amount in controversy exceeds $75,000. See ANPAC, 988 F.2d at 565. The defendant has failed to set forth specific facts such as an affidavit or sufficient medical bills to support its allegation that the jurisdictional amount exceeds $75,000. Indeed, defendant's attached medical records indicate that plaintiff was not treated at a hospital for this incident and she did not fall and hit the stairs but was caught by her granddaughter. (See Sears Opp'n Mot. Remand Ex. C.) Furthermore, the proffered records and answers to interrogatories reveal that plaintiff is "nearing maximum medical improvement" and her medical expenses total only $2,935.10. ( See id. Ex. A, Ans. Interr. No. 12; Ex. B C.) Accordingly, the Court finds that the defendant has not satisfied its burden of showing by a preponderance of the evidence that more than $75,000 was in controversy at the time of removal.
Finally, in her motion to remand, plaintiff stipulates that her damages "should not exceed the statutory minimum of $75,000." This stipulation, however, is not a sworn affidavit. The Fifth Circuit has held that while a plaintiff may not defeat removal by changing her demand after the removal notice has been filed, post-removal stipulations may be used to clarify the amount for the first time. See ANPAC, 988 F.2d at 565; see also Domangue v. Commodore Cruise Line, Ltd., 1998 WL 205429, at *1 (E.D. La. Apr. 27, 1998). "A stipulation like plaintiff's, which is not a sworn affidavit and falls short of stipulating that the claimant will not seek more than the jurisdictional amount is not binding, however, . . . the court may assess jurisdiction with reference to all the evidence." Domangue, 1998 WL 205429, at *1. As such, although not binding, the plaintiff's stipulation may be considered as evidence in determining whether the amount in controversy has been met.
After considering all the evidence, the Court finds that defendants have failed to prove by a preponderance of the evidence that plaintiff's total damages more likely than not exceed the jurisdictional amount. Accordingly, this Court does not have subject matter jurisdiction and must remand this case to state court.
III. CONCLUSION
For the foregoing reasons, plaintiff's motion to remand is granted. This case is hereby remanded to the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana, for further proceedings.
New Orleans, Louisiana, this 26th day of January, 2000.