Opinion
Civil Action No. 01-2646; Section "J"(5)
October 25, 2001
ORDER
Before the Court is a Motion to Remand to State Court for Lack of Subject Matter Jurisdiction (Rec. Doc. 9) filed by plaintiff Mark Tudury ("Plaintiff"). Plaintiff's motion, set for hearing on October 24, 2001, is before the Court on briefs without oral argument. Defendant, Wal-Mart Stores, Inc. ("Defendant"), opposes the motion.
After a review of the motion, opposition, and notice of removal, the memoranda of the parties, and other evidence in the record, the Court concludes that Defendant has not met its burden of proving subject matter jurisdiction, and Plaintiff's motion to remand should be granted.
Background
Plaintiff filed suit in state court for injuries he sustained after stepping into a concrete hole and tripping over a plant holder at the Defendant's store in Chalmette. As a result of this accident, Plaintiff injured his thumb, which required him to undergo surgery and physical therapy; Plaintiff also sustained soft tissue injuries to his neck and shoulder. After the thumb surgery, Plaintiff took a leave of absence from his welding job for almost five months. Because of this absence, he lost approximately $18,000 in wages and profit sharing. Furthermore, Plaintiff complains of ongoing pain in his hand and shoulder when exerting himself for prolonged periods of time. In accordance with Louisiana law, Plaintiff's petition did not allege a specific amount of damages. La. Code Civ. Pro. 893.
Defendant removed the suit to this Court alleging subject matter jurisdiction under 28 U.S.C. § 1332(a) and 1441. Plaintiff moved to remand this case arguing that the Defendant failed to timely remove the action under 28 U.S.C. § 1446(b) and failed to satisfy the amount in controversy under 28 U.S.C. § 1332(a).
Analysis
When a case is removed to federal court, defendant bears the burden of proving, by a preponderance of the evidence, that the amount in controversy exceeds $75,000. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999) (citing Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999)). Defendant can meet that burden 1) by demonstrating that it is "facially apparent" from the complaint that plaintiff's claims are likely to exceed $75,000, or 2) "by setting forth facts in controversy — preferably in the removal petition, but sometimes by affidavit — that support a finding of the requisite amount." Id. (quotingLuckett, 171 F.3d at 298). Because it is presumed that a federal court lacks jurisdiction until it has been demonstrated to exist, any doubt as to federal subject matter jurisdiction is to be resolved in favor of remand. Heaton v. Monogram, 1999 WL 1789422, *1 (E.D. La., Nov. 22, 1999) (citing Naartex Consulting Corp. v. Watt, 722 F.2d 779, 792 (U.S. App. D.C. 1983)).
In the instant case, the Defendant claims that the "plaintiff's deposition testimony clearly establishes by a preponderance of the evidence that the amount in controversy could reasonably exceed $75,000." Def.'s Mem. in Opp. to Pl.'s Mot. to Remand, 6. However, after reviewing the deposition testimony Defendant attached in support of its argument, this Court does not find that the testimony supports Defendant's proposition. Plaintiff has only indicated that he has lost less than $20,000 to date and has sought medical treatment of his injuries.
Furthermore, Plaintiff has cited to court decisions consistently awarding sums substantially less than $75,000 to plaintiffs with injuries similar to his own. Brown v. Sears, Roebuck Co., 514 So.2d 439, 445 (La. 1987) (affirming decision to award $3,000 for thumb with severed tendon); Billiot v. K-Mart Corp., 764 So.2d 329, 335 (La.Ct.App. 2000) (affirming award of $5,000 plus medical costs for soft tissue injury);Reed v. Ricard, 744 So.2d 13, 20 (La.Ct.App. 1998) (affirming award of $15,000 for three month muscle strain); Johnson v. Phillips, 544 So.2d 600, 602 (La.Ct.App. 1989) (affirming award of $7,500 for surgery to repair and residual disability of torn thumb ligament).
Under the standard that all doubts must be resolved in favor of remand, this Court finds that the Defendant has not carried its burden of demonstrating that the amount in controversy will be satisfied. Heaton v. Monogram, 1999 WL 1789422, *1 (E.D. La., Nov. 22, 1999) (citingNaartex Consulting Corp. v. Watt, 722 F.2d 779, 792 (U.S. App. D.C. 1983)). Further, because the Defendant has failed to satisfy the requisite amount in controversy, the Court need not reach Plaintiff's argument regarding the timeliness of removal. Accordingly;
IT IS ORDERED that the Motion to Remand to State Court for Lack of Subject Matter Jurisdiction (Rec. Doc. 9) filed by plaintiff Mark Tudury should be and is hereby GRANTED, and this case is REMANDED to the 34th Judicial District Court for the Parish of St. Bernard.