Opinion
Civil Action No. 01-2420; Section "J"(2)
October 24, 2001
ORDER
Before the Court is a Motion to Remand to State Court for Lack of Subject Matter Jurisdiction (Rec. Doc. 6) filed by plaintiffs Walter Alveris, Gustave Battaglia, Robert Billiot, Roger Callia, Lamara Campo, Perry Chester, Charles Chauffe, Stanley Doucette, Albert Frazer, Johnny Frazier, Richard Hughes, Ricky Menesses, Rene Nunez, Raymond Oelking, Eldridge Pierce, Melvin Roberts, Jr., Daniel Ruiz, Ronald Ruiz, Henry Steele III, and Donald Vitrano (hereinafter referred to as "Plaintiffs"). Plaintiff's motion, set for hearing on October 24, 2001, is before the Court on briefs without oral argument. Defendant, Shell Oil Company ("Defendant"), opposes the motion.
After a review of the motion, opposition, and notice of removal, the memoranda of counsel, and other evidence in the record, the Court concludes that Defendant has not met its burden of proving subject matter jurisdiction, and Plaintiffs' motion to remand should be granted.
Background
Plaintiffs filed suit in state court for noise-induced hearing loss they allege to have sustained while in the Defendant's employment. In accordance with Louisiana law, Plaintiff's petition does 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). Plaintiffs have also filed a stipulation into the record that they will not pursue or attempt to collect judgments in excess of $75,000 per plaintiff.
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)).
The Fifth Circuit held in Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (2000) that a post-removal stipulation regarding the amount in controversy does not deprive a federal court of subject matter jurisdiction as long as the requisite amount is facially apparent at the time of removal. Satisfaction of the requisite amount is not facially apparent in the case at bar. While Defendants cite to several cases where plaintiffs with hearing loss have received more than $75,000 in damages, all of the plaintiffs in the referenced cases had substantial injuries along with hearing loss. See. e.g., Carpenter v. Johnson, 664 So.2d 1354 (La.Ct.App. 1995) (assault victim suffered total deafness and organic brain damage awarded $413,126.38 on appeal); Morris v. Owens-Illinois. Inc., 582 So.2d 1349 (plaintiff awarded $200,000 in general damages where he suffered hearing loss, tinnitus, a jaw fracture, disequilibrium, vertigo, and lacerations). These cases are not representative of the injuries alleged by plaintiffs in the case at bar.
Furthermore, this Court has previously held under the jurisprudence ofGebbia that where the amount in controversy is ambiguous at the time of removal, a court may consider a stipulation regarding the amount in controversy as submitted by the plaintiffs with their Motion to Remand.Davis v. Illy Expresso, Civ. A. No. 01-0053, 2001 WL 238188, *1 (E.D. La., Mar. 8, 2001) (citing Gebbia, 233 F.3d at 883).
Defendant offers no other persuasive authority for this Court to retain subject matter jurisdiction over this action. 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) (citing Naartex 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 Plaintiffs' 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. 6) filed by plaintiffs Alveris, et al. should be and is hereby GRANTED, and the case is hereby REMANDED to the 34th Judicial District Court for the Parish of St. Bernard.