Opinion
Civil Action No. 01-2079
August 15, 2001
Defendant removed this case on July 6, 2001, pursuant to 28 U.S.C. § 1441. Plaintiff maintains that Defendant has not demonstrated that the $75,000 amount in controversy requirement has been satisfied to support diversity jurisdiction over this case, and has filed a motion to remand, which is presently before the Court. After reviewing the arguments of counsel, the record and the applicable law, IT IS ORDERED that Plaintiff's Motion is DENIED.
The parties may neither consent to nor waive federal subject matter jurisdiction. See Simon v. Wal-Mart Stores. Inc., 193 F.3d 848 (5th Cir. 1999). Where jurisdiction is premised on diversity of citizenship, the parties must be diverse and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a). The removing defendant must prove by a preponderance of the evidence that the jurisdictional minimum exists. See Simon, 193 F.3d at 850. This showing may be made by either: (1) demonstrating that it is apparent on the face of the complaint that the claims are likely to exceed $75,000; or (2) setting forth the facts in controversy that support a finding of the jurisdictional minimum. See id.
Once a defendant has satisfied his burden, a plaintiff may only defeat jurisdiction by showing to a "legal certainty" that the amount in controversy will not satisfy the jurisdictional requirements. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); De Aguilar v. Boeing Company, 47 F.3d 1404, 1412 (5th Cir. 1995). Parties seeking to prevent removal may meet this legal certainty standard by offering a binding stipulation to prove to a legal certainty that recovery will not exceed the jurisdictional minimum, but that stipulation must be filed in the state court before removal occurs. See id. at 1412;see also 14C Wright, Miller, Cooper, Fed. Prac. Proc.: Jurisdiction 3d § 3726 (1998).
In her state court petition, Plaintiff stipulated that her damages are less than $75,000, but the complaint does not contain any stipulation regarding the damages of other members of her putative class. However, Plaintiff correctly points out, and Defendant does not dispute, that damages may generally not be aggregated for the purposes of satisfying the amount in controversy requirement for diversity jurisdiction. See Ard v. Transcontimental Gas Pipe Line Corp., 138 F.3d 596,600 (5th Cir. 1998) (citing Synder v. Harris, 394 U.S. 332, 335 (1969)). At least one individual plaintiff must have damages of at least $75,000 in order to justify removal to federal court. See id.
See Complaint at 36.
Defendant, however, relies on In re Abbott Laboratories, 51 F.3d 524 (5th Cir. 1995), aff'd, 529 U.S. 333 (2000), for the proposition that, in some circumstances, the Court may attribute the attorney's fees awarded in a class action to one plaintiff, and thereby bring one party over the $75,000 threshold amount and the case within the jurisdiction of the federal courts. In Abbott, the Fifth Circuit examined Article 595 of the Louisiana Code of Civil Procedure, which states that "[t]he court may allow the representative parties their reasonable expenses of litigation, including attorney's fees, when as a result of the class action a fund is made available or a recovery or compromise is had which is beneficial, to the class." La. Civil Code art. 595.
Defendant properly notes that the courts are split as to whether Article 595 alone is sufficient to permit aggregation See Braxton v. IMC Phosphates MP. Inc., 2000 WL 1576827 at *2 (E.D. La. 2000) (Clement, J.) (describing the split of opinion among Louisiana federal judges). Some courts believe that Article 595 is sufficient in all cases, see e.g., McKnight v. Illinois Cent. R.R., 967 F. Supp. 182 (E.D. La. 1997) (Duval, J.); Kimball v. Modern Woodmen of Am., 939 F. Supp. 479 (M.D. La. 1996) (Parker, J.); Brooks v. Georgia Gulf Corp.; 924 F. Supp. 739 (M.D. La. 1996) (Polozola, J.), while others insist that there must be some other statutory "hook" to support the attribution of attorney's fees to a single plaintiff. See, e.g., Ryder v. Gilbert S. Corp., 2000 WL 1499274 (ED. La. Sept. 21, 2000) (Sear, J.); Johnson v. Cytec Indus., Inc., 1999 WL 212753 (E.D. La. Apr. 13, 1999) (Vance, J.); Greer v. Mobil Oil Corp., 1997 WL 180477 (E.D. La. Apr. 14, 1997) (Clement, J.); Ace Pest Control Co. v. K-Mart Corp., 979 F. Supp. 443 (E.D. La. 1997) (Porteous, J.); Cooper v. Koch Pipeline, 1995 WL 931091 (E.D. La. Dec. II, 1995) (Fallon, J.). However, in this case, Defendant maintains that the Court need not weigh in on this hotly disputed issue, because paragraph 19 of Plaintiff's complaint specifically invokes the Louisiana Commission on Human Rights Act, which provides for the award of attorney's fees to a plaintiff. See La. R.S. 51:2264 ("Any person deeming himself injured by any alleged violation of the provisions of this Chapter shall have a civil cause of action in district court to enjoin further violations and to recover the actual damages sustained by him, together with the costs of court and a reasonable fee for his attorney of record, all of which shall be in addition to any other remedies contained in this Chapter.") (emphasis added).
The Court finds that the Defendant has satisfied its burden of proving by a preponderance of the evidence that the attorney's fees in this action will be sufficient to bring the named plaintiff over the jurisdictional amount. See Defendant's Exh. A (attesting to the fact that approximately 12,587 "street" life insurance were issued by the company, all of which could be implicated by this lawsuit). In response, Plaintiff has submitted a copy of the named Plaintiff's policies to demonstrate that, in her case, the premiums involved were only $3.90 and $2.17 respectively, see Plaintiff's Exhs. 1 2, and suggests that "[t]he facts on the present record in this matter are unclear, even to the plaintiff, and it is impossible to tell what the eventual damages will be, if any, without discovery." See Plaintiff's Reply at 1. With regard to Defendant's estimation as to the size of the class, which is also directly relevant to issue of the potential attorneys fees at stake, Plaintiff merely responds that Defendant's figures are "remote and outlandish." See id. at 2. The Court also notes that Plaintiff has made no binding stipulation that would cap its potential award of attorneys fees.
The Fifth Circuit has made clear that once a Defendant shows by a preponderance of the evidence that the jurisdictional minimum has been met, unless Plaintiff can demonstrate "to a legal certainty" that the $75,000 amount in controversy will not be satisfied in this case, the Defendant is entitled to remove the case to federal court. The Court finds that Plaintiff has not met this difficult standard.
Therefore, IT IS ORDERED that Plaintiff's Motion to Remand is hereby DENIED.