Opinion
Civil Action No. 01-0529, Section "T"(4)
July 3, 2001
Before this Court is a Motion to Remand pursuant to 28 U.S.C. § 1447 filed on behalf of the Plaintiff, Gladys M. Ross. The parties waived oral argument, and this matter was submitted for the Court's consideration on June 20, 2001. The Court, having considered the memoranda filed, the Court record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND:
On January 26, 2001, the Plaintiff, Gladys Ross, filed the above-captioned action in the Civil District Court for the Parish of Orleans, State of Louisiana, after sustaining injuries while shopping at one of the Defendant's stores located in New Orleans, Louisiana. Specifically, the Plaintiff was injured when a container fell from atop a display case and struck her right foot. As a result, the Plaintiff required outpatient medical treatment. The Defendant timely filed a Notice of Removal with this Court, claiming that there exists complete diversity of citizenship between the parties and that the amount in controversy exceeds the jurisdictional amount. Therefore, the Defendant claims that this Court possesses original jurisdiction over the above-captioned action pursuant to 28 U.S.C. § 1332. The Plaintiff, however, timely filed the instant Motion to Remand, claiming that the amount in controversy does not exceed $75,000, exclusive of interest and costs. Accordingly, the Plaintiff seeks to have the instant action remanded back to the Civil District Court for the Parish of Orleans pursuant to 28 U.S.C. § 1447.
II. DISCUSSION:
A. The Law on Removal and Remand:
Pursuant to 28 U.S.C. § 1441, any civil action may be removed from state court to federal court if it is proven that the federal court has original jurisdiction. See 28 U.S.C. § 1441. In the instant action, the Defendant claims that removal to federal court is proper based upon 28 U.S.C. § 1332, diversity of citizenship. In removal actions, the removing party bears the burden of establishing that federal jurisdiction exists. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995), cert. denied, 516 U.S. 865, 116 S.Ct. 180, L.Ed.2d 119 (1995). In order to do so under 28 U.S.C. § 1332, the removing party must prove that complete diversity of citizenship exists between the parties and that the amount in controversy exceeds $75,000, exclusive of attorney fees and costs. See 28 U.S.C. § 1332. In the present action, the dispute between the parties concerns the amount in controversy requirement for diversity jurisdiction.
The Plaintiff, in her state court Petition for Damages, does not seek to recover a specific monetary sum; rather, she merely prays for judgment in her favor, as is required by Louisiana law. See LA. Code Civ. Proc. Ann. art. 893(A)(1). In such a situation, "the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds [the jurisdictional amount.]" De Aguilar, 47 F.3d at 1409 (quoting De Aguilar v. Bocina Co. ("De Aguilar I"), 11 F.3d 55, 58 (5th Cir. 1993)). A removing defendant can make such a showing in one of two ways. See Luckett v. Delta Airlines. Inc., 171 F.3d 295, 298 (5th Cir. 1999). First, a defendant may demonstrate that it is "facially apparent" that the Plaintiff's claims are likely above the $75,000 jurisdictional limit. See Id. Second, a defendant may set forth the facts in controversy that support a finding of the requisite jurisdictional amount. See Id. This requires a defendant to submit "summary judgment type evidence" to support the claim that the actual amount in controversy exceeds the jurisdictional limit. See De Aguilar, 47 F.3d at 1412.
In Associacion Nacional de Pescadores a Pepuena Escala o Artesanales de Columbia ("ANPAC") v. Dow Quimica de Colombia S.A., the Court of Appeals for the Fifth Circuit specifically identified three circumstances in which a removing party will fail to satisfy its burden of proving that removal is warranted. See ANPAC. 988 F.2d 559, 566 (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, 199 S.Ct. 1563 (1999). The Fifth Circuit explained that:
[a]t least where the following circumstances are present, the [removing party's] burden has not been met: (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 plaintiffs' claims; and (3) the plaintiff's timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present.Id. If such is the case, then removal is improper. However, it is important to note that "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447 (c).
If a defendant is successful in proving that the amount in controversy exceeds the jurisdictional limit, the burden shifts to the plaintiff to show with legal certainty that he or she will not be able to recover more than $75,000. See De Aguilar, 47 F.3d at 1411-12. If a plaintiff is able to do so, then the case will be remanded to state court. See id. However, once diversity jurisdiction has attached, it cannot be subsequently divested by the voluntary reduction of the amount below the jurisdictional limit. 28 U.S.C. § 1447 (c); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256 (5th Cir. 1995). Furthermore, any evidence submitted after the complaint has been filed is allowable only if relevant to the time of removal. See ANPAC, 988 F.2d at 565.
B. Application to the Facts:
As stated above, because Louisiana law prohibits the Plaintiff from pleading a specific amount of monetary damages, the Plaintiff has alleged an indeterminate amount of damages. See LA. Code Civ. Proc. Ann. art. 893(A)(1) (West 1999). Therefore, the Court first must look to the petition itself to determine whether it is "facially apparent" that the Plaintiff's claim exceeds the jurisdictional amount of $75,000. In her Petition for Damages, the Plaintiff contends that she sustained severe injuries to her right foot as a result of being struck by a falling contained filled with bottles of fingernail polish and fingernail files. (Plaintiff's Petition for Damages, page 2, ¶ IV). The petition states that as a result of this accident, the Plaintiff has developed paresthesia of the ankle, foot, and toes, a limp, and tendinitis in her ankle. (Id.) In addition, the Plaintiff contends, with virtually no specificity, that she is entitled to both general and special damages, including past and future pain and suffering, past and future lost wages, and medical expenses, both past and future. (Id. at ¶ V).
After a review of the petition as it existed at the time of removal, the Court is of the opinion that the damages claimed in the Plaintiff's petition do not rise to the level of the facts set forth in prior cases to "facially" support removal. For example, in Luckett v. Delta Airlines. Inc., supra, the plaintiff "specifically alleged damages for property, travel expenses, an emergency ambulance trip, a six-day stay in the hospital, pain and suffering, humiliation, and temporary inability to do housework following her hospitalization." Simon v. Wal-Mart Stores. Inc. 193 F.3d 848, 850 (5th Cir. 1999). In Simon v. Wal-Mart Stores, Inc., supra, however, the plaintiff "alleged with little specificity, damages from less severe physical injuries and unidentified medical expenses."Id. at 851. In examining the present action within the Luckett framework, the Court determines that the Plaintiff's petition more closely resembles the petition in Simon rather than the petition inLuckett The Plaintiff in the present case does not allege loss of property, emergency transportation, hospital stays, or specific types of medical treatments. Simply put, Ross's petition "describes damages inadequately to support removal." See Simon, 193 F.3d at 851.
Furthermore, this Court finds that the Plaintiff's petition closely resembles the plaintiff's petition in Moore v. J.C. Penney Co., Inc., No. Civ. A. 00-0083, 2000 WL 385516 (E.D.La. April 13, 2000), a case that Judge Berrigan of this Honorable Court remanded on the basis of lack of evidence supporting the requisite amount in controversy. See Moore v. J.C. Penney Co., Inc., No. Civ. A. 00-0083, 2000 WL 385516, at *1 (E.D.La. April 13, 2000). In Moore, the plaintiff's petition alleged that the defendants were liable for ""such damages as are reasonable in the premisses, including past physical pain and suffering, future physical pain and suffering, past metal pain and suffering, future mental pain and suffering, medical expenses, loss of earnings, future loss of earning capacity, and permanent disability to the body, [and] loss of consortium.'" Id. (quoting Plaintiff's Petition for Damages, para. 2). Such allegations are almost identical to Ross's allegations in the present case. See Plaintiff's Petition for Damages, page 2, ¶ V. Therefore, the Court finds that the jurisdictional amount required for removal is not "facially apparent" from the Plaintiff's petition.
Because the requisite jurisdictional amount is not "facially apparent" in the Plaintiff's petition, the Court must now determine whether the Defendant has shown by a preponderance of the evidence, with "summary judgment like" proof, that the Plaintiff's claim exceeds $75,000. In its Notice of Removal, the Defendant has submitted no evidence, but merely states that "the amount in controversy exceeds the federal jurisdictional amount, exclusive of interest and costs...." (Doc. No. 1, page 2, ¶ 5). The Defendant's Notice of Removal does not set forth any specific facts to support its conclusory allegation that the jurisdictional amount exceeds $75,000, except for the representation that Plaintiff's counsel has indicated that the amount in controversy indeed exceeds the jurisdictional amount. (See Id.). However, in her Motion to Remand, the Plaintiff avers that the amount in controversy does not exceed such limits. See Doc. 12. Accordingly, this Court finds that the Defendant has failed to come forth with "summary judgment type" proof that the amount in controversy exceeds $75,000, exclusive of interest and costs.
Moreover, not only has the Defendant failed to meet its burden of proving that the amount in controversy exceeds the jurisdictional limit for diversity jurisdiction, but the Plaintiff has submitted two letters of settlement that shed some light on the issue of the amount in controversy in this case. The first letter, dated November 14, 2000, contains the following language: "[w]e are willing to accept $12,581.00 in full and final settlement of all claims Gladys Ross has against Rite Aid Corporation." Doc. 12, Exhibit A. The second letter, dated March 9, 2001, a mere eight days post-removal, contains a settlement demand of $20,138.50, an amount well under the jurisdictional threshold of $75,000. See Doc. 12, Exhibit C.
In Fairchild v. State Farm Mutual Automobile Insurance Co., 907 F. Supp. 969 (M.D.La. 1995), the court found that a settlement letter from the Plainitff's attorney evaluating her claim at $110,000 two months prior to removal was "valuable evidence to indicate the amount in controversy at the time of removal." Fairchild v. State Farm Mutual Automobile Insurance Co., 907 F. Supp. 969, 971 (W.D.La. 1995) (citingWilson v. Belin, 20 F.3d 644, 651 n. 8 (5th Cir. 1994)). This Court agrees, for it finds such letters helpful in clarifying the Plaintiff's ambiguous petition. Accordingly, this Court determines that the letters of settlement submitted by the Plaintiff in this case indicate that it is more likely than not that the jurisdictional amount did not exceed $75,000 at the time of removal.
III. CONCLUSION:
For the foregoing reasons, the Court finds that the jurisdictional amount required for subject matter jurisdiction pursuant to 28 U.S.C. § 1332 is lacking in this case. Consequently, removal of this action to federal court is improper.
Accordingly,
IT IS ORDERED that the Plaintiff's Motion to Remand (Doc. 12) be, and the same is hereby, GRANTED.
IT IS FURTHER ORDERED that the above-captioned matter, Case Number 01-0529, be, and the same is hereby REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.
New Orleans, Louisiana, this 3rd day of July, 2001.