Summary
finding that it was not facially apparent that the amount in controversy exceeded the federal jurisdictional threshold
Summary of this case from Watts v. HarrisonOpinion
Civil Action No. 00-3109 SECTION: "R" (5)
January 5, 2001
ORDER AND REASONS
Before the Court is plaintiff Loyce Alonzo's motion to remand this action to state court pursuant to 28 U.S.C. § 1447(c). For the following reasons; the Court grants plaintiff's motion.
I. Background
Plaintiff Loyce Alonzo filed a petition for damages on June 12, 2000 in the Thirty-Fourth Judicial District for the parish of St. Bernard, Louisiana. In her petition, Alonzo alleges that while she was a patron in Shoney's restaurant in Chalmette, Louisiana, a bottle fell from the top of the salad bar and struck her on the right shoulder and neck, causing severe and permanent injuries. She named two defendants — Shoney's Inc. and John Doe, the restaurant manager. The premise for her claim against John Doe is that he "had a duty to the patrons on the premises to provide a safe premises and/or warn patrons of dangerous conditions." (Pet. Removal, Ex. 2. ¶ VI.)
Shoney's removed the matter to this Court on October 20, 2000. In its petition for removal Shoney's claims that it moved within thirty days of learning that Alonzo's damages would exceed the jurisdictional threshold of $75,000. Shoney's also claims that there is complete diversity except for the fraudulent joinder of a fictitious employee, whose identity can be disregarded for the purposes of removal.
Alonzo now moves to remand. She argues that Shoney's removal was untimely, that complete diversity does not exist, that the jurisdictional threshold is not satisfied, and that the sole purpose of Shoney's removal is to harass Alonzo and cause unnecessary delay.
II. Discussion
A. Legal Standards for Removal and Remand
Generally, a defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction. See 28 U.S.C. § 1441(a). "The removing party bears the burden of establishing that federal jurisdiction exists" at the time of removal. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995) ( De Aguilar II). See also Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) ("[T]he jurisdictional facts that support removal must be judged at the time of removal . . . ."). Here, Shoney's asserted federal diversity jurisdiction and removed this case. See 28 U.S.C. § 2. 332, 1441(b). The Court must remand the matter, however, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." Id. § 1447(c)
Louisiana law prohibits a plaintiff from pleading a specific amount of monetary damages. See LA. CODE CIV. PROC. art. 893. Accordingly, "[w]hen the plaintiff's complaint does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds [$75,000]." Allen, 63 F.3d at 1335 (quoting De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993) ( De Aguilar I)). A defendant satisfies this burden when it is "facially apparent that the claims are likely above [$75,000]." Id. In the alternative, a defendant may "set El forth the facts in controversy — preferably in the removal petition, but sometimes by affidavit — that support a finding of the requisite amount." Id. Conclusory allegations, however, are not sufficient. See id. Instead, a defendant "must produce evidence that establishes that the actual amount in controversy exceeds [$75,000]." De Aguilar II, 47 F.3d at 1412. See also Allen, 63 F.3d at 1336 (A district court can "require parties to submit summary-judgment-type evidence.") Once a defendant establishes by a preponderance of the evidence that the amount in controversy is greater than the jurisdictional amount, however, the plaintiff must show "to a legal certainty that the claim is really for less than the jurisdictional amount to justify [remanding the matter]." Id.
B. Timely Removal
Alonzo first argues that Shoney's removal was untimely because 28 U.S.C. § 1446(b) requires a defendant to file a notice of removal within thirty days after receipt of a copy of the initial pleading setting forth plaintiff's claim. She also argues that subsequent discovery only reiterated the claims originally set forth in her petition for damages. Shoney's counters that Alonzo's original petition only presented a general recitation of damages and, as such, was not removable. It claims the first "hint" that Alonzo's claims might exceed the jurisdictional threshold emerged on September 25, 2000 when Shoney's counsel received her responses to its Interrogatories and Requests for Production of Documents and learned that Alonzo had a herniated cervical disk. Furthermore, Shoney's claims, it learned at Alonzo's deposition on September 28, 2000 that she intended to undergo the surgery recommended by her doctor. Accordingly, Shoney's argues that the October 20, 2000 removal was timely pursuant to section 1446(b).
Section 1446(b) governs the timeliness of removal. It requires a defendant to file a notice of removal within thirty days after receipt of a copy of the initial pleading setting forth plaintiff's claim. See 28 U.S.C. § 1446(b). See also Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992) (thirty day time period starts to run "only when the pleading affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court"). However, it also provides:
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . . . .Id. Failure to file timely a notice of removal requires the district court to remand the matter to state court. See Royal v. State Farm Fire Cas. Co., 685 F.2d 124, 127 (1982) (per curiam); Evett v. Consolidated Freightways Corp., 110 F. Supp.2d 510, 512 (E.D. Tex. 2000).
After reviewing Alonzo's petition for damages, the Court finds that it is not facially apparent that the amount in controversy exceeds the federal jurisdictional threshold. See Seaman v. Tetra Applied Techs., 2000 WL 222851, at 2 (E.D. La. Feb. 18, 2000) ("These allegations are 'fairly vanilla' and in no way indicate the severity of plaintiff's injuries. The amount in controversy is, therefore, not facially apparent from the complaint."); Allison v. Allstate Ins. Co., 1997 WL 31175, at 2-3 (W.D. La. Jan. 22, 1997). Accordingly, Alonzo's suit was not removable until Shoney's was apprised by some "other paper" that her claim satisfied the jurisdictional amount. When Shoney's received Alonzo's answer to an interrogatory on September 25, 2000 that she had a herniated cervical disk, it was able to quantify her claim, and the thirty-day clock started. Chapman, 969 F.2d at 164 ("Clearly the answer to interrogatory which triggered the filing of the notice of removal in this case is such an "other paper."). Therefore, as Shoney's filed its petition for removal on October 20, 2000, the Court finds the case timely removed.
C. Diversity
Alonzo further argues that this Court does not have diversity jurisdiction because both Alonzo and John Doe are citizens of Louisiana, and Shoney's principal place of business is in Louisiana. She also argues that Shoney's has not established that this matter satisfies the minimum jurisdictional amount. See 28 U.S.C. § 1332.
1. Unknown Defendant's Citizenship Fraudulent Joinder
After asserting that John Doe is a citizen of Louisiana, Alonzo contends she properly sued John Doe because Shoney's "is only a substrate of its corporeal representatives," and "John Doe is such a representative who by act, omission or indifference actually set in motion the events that led to Loyce Alonzo's injuries." (Mem. Supp. Mot. Remand at 11.) Shoney's argues that courts disregard fictitious defendants for purposes of removal. It also argues that Alonzo fraudulently joined John Doe because she fails to allege the manager's personal action or responsibility and seeks to impose liability solely on the basis of his employee status and supervisory responsibility, which is legally insufficient.
Section 1441(a) states that for the purposes of removal, "the citizenship of defendants sued under fictitious names shall be disregarded." 28 U.S.C. § 1441(a). Notwithstanding the apparent clarity of this language, several district courts have found that, in certain circumstances, a court may consider an unnamed defendant's citizenship. See, e.g., Tompkins v. Lowe's Home Ctr., 847 F. Supp. 462, 464 (E.D. La. 1994) (Livaudais, J.); Culbertson v. Smelter Mutual Ins. Co., 1997 WL 610869, at 2 (E.D. La. Sept. 30, 1997) (Duval, J.). They reason that when plaintiff's complaint provides a definite clue about the identity of a fictitious defendant, a court should consider the fictitious defendant's citizenship. See Tompkins, 847 F. Supp. at 464; Culbertson, 1997 WL 610869, at 2. Although the Fifth Circuit has never addressed this provision, the Court is not persuaded that the unambiguous language "shall be disregarded" allows for the proposed exception. See Newcombe v. Adolf Coors Co., 157 F.3d 686, 690 (9th Cir. 1998) ("citizenship of defendants sued under fictitious names shall be disregarded for purposes of removal"); Alexander v. Electronic Data Sys. Corp., 13 F.3d 940, 948 (6th Cir. 1994); Dry v. Doe, 1996 WL 431128 (E.D. La. July 31, 1996); Rogoz v. Shell Oil Co., 1991 WL 42552 (E.D. La. Mar. 22, 1991). Therefore, the Court will not consider John Doe's citizenship for the purposes of removal and declines to address the merits of Shoney's contention that Alonzo fraudulently joined John Doe.
2. Shoney's Principal Place of Business
Alonzo also argues there is no diversity jurisdiction because Shoney's principal place of business is in Louisiana. To support this assertion, she posits that the company operates a restaurant in the Parish of St. Bernard in Louisiana. Shoney's counters that under the total activity test, Nashville, Tennessee is its principal place of business.
Each corporation has "one and only one principal place of business." J.A. Olson Co. v. City of Winona, Miss., 818 F.2d 401, 406 (5th Cir. 1987). The Fifth Circuit applies a "total activity" test to determine that principal place of business. See Grinter v. Petroleum Operation Support Serv., Inc., 846 F.2d 1006, 1008 (5th Cir. 1988). This test requires the Court to consider the location of Shoney's "nerve center" and its "place of activities." See id. (citing J.A. Olson Co., 818 F.2d at 404). When a corporation's various operations are far flung, its principal place of business will generally be its nerve center. See J.A. Olson Co., 818 F.2d at 409.
Here, Shoney's corporate and administrative offices are located in Nashville, Tennessee. From these offices, Shoney's supervises its far-flung enterprises, including its restaurant in St. Bernard Parish. The Court accordingly finds that Shoney's principal place of business is Nashville, Tennessee. As it is uncontested that Shoney's is incorporated in Tennessee, the Court finds that Alonzo and Shoney's are diverse for the purposes of determining jurisdiction. See 28 U.S.C. § 1332.
3. Jurisdictional Amount
Alonzo also argues that Shoney's has not proven by a preponderance of the evidence that the amount in controversy exceeds $75,000. Shoney's argues that the surgery Alonzo is contemplating generally costs $25,000 to $30,000 and that even with a minimal damage award the $75,000 threshold will be easily reached. However, it submits no evidence on the cost of this type of surgery. Rather, Shoney's cites three cases in which the plaintiff was awarded general. damages in excess of $75,000. See Bush v. Diamond Offshore Co., 46 F. Supp.2d 515 (E.D. La. 1999) (Disc pathology at C5-C6; awarded $130,000 in general damages); Birdsall v. Regional Elec. Constr., Inc., 710 So.2d 1164 (La.App. 1st Cir. 1998) (herniated cervical disk and awarded $150,000 in general damages); Este v. State Farm Ins. Cos., 676 So.2d 850 (La.App. 3d Cir. 1996) (diagnosed with cervical disk herniation and awarded $75,000 in general damages)
Notwithstanding the cases cited by Shoney's, the Court has reviewed recent cases in which a plaintiff suffering from a cervical herniated disk has been awarded only $20,000 or $45,000 in general damages. See, e.g., Lapeyrouse v. Wal-Mart Stores, Inc., 725 So.2d 61 (La. 5th Cir. 1998) (awarded $45,000 in general damages); Calcagno v. Gonzales, 1999 WL 974471 (La.App. 5th Cir. Oct. 13, 1999) (awarding plaintiff $20,000). Furthermore, an award for general damages compensates a plaintiff for pain and suffering, and Alonzo testified in her deposition that she has "a pretty high tolerance for pain." (Pet. Removal, Ex. 8 at 62.) Accordingly, merely citing a few cases with awards of substantial general damages does not satisfy Shoney's burden of proving by a preponderance of the evidence that the actual amount in controversy exceeds $75,000. See De Aguilar II, 47 F.3d at 1412. Therefore, as Shoney's presents no other evidence to persuade the Court as to the actual amount in controversy, the Court finds it is devoid of jurisdiction and remands this case to state court. In so concluding, the Court observes that federal courts are of limited jurisdiction, and, as such, construe removal statutes strictly. See Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988) ("[R]emoval jurisdiction raises significant federalism concerns, and we must therefore strictly construe removal jurisdiction.") (citing numerous cases).
III. Conclusion
For the foregoing reasons, the Court grants Loyce Alonzo's motion to remand and remands this case to the Thirty-Fourth Judicial District for the Parish of St. Bernard, Louisiana for further proceedings.