Summary
denying remand where the defendants offered summary judgment-type evidence including: an affidavit stating that the plaintiff required knee surgery and had missed work for months and as evidence of damages, an MRI of the plaintiff's spine which reflected a bulging disc
Summary of this case from Watts v. HarrisonOpinion
Civil Action Number 02-01008, Section "L"(5)
July 1, 2002
ORDER REASONS
Before the Court is Plaintiff's Motion to Remand (Doc. No. 5). For the following reasons, the motion is DENIED.
I. BACKGROUND
On March 6, 2001 Plaintiff, Cedric James, filed suit in the Civil District Court for the Parish of Orleans alleging injuries stemming from an accident that occurred on November 26, 2001 in a Home Depot store in New Orleans, Louisiana. Plaintiff claims that while shopping in the store, a "small porcelain sink being displayed on the wall of the store fell" striking the Plaintiff. See Memorandum in Support of Plaintiff's Motion to Remand, at 1. In his petition, Plaintiff sought damages for "physical, emotional and mental pain and anguish, disability, loss of enjoyment of life, and loss of physical function." See Petition for Damages, at 2, attached as Exhibit One to Plaintiff's Motion to Remand. Plaintiff further alleged that "he has sustained a loss of wages and wage earning capacity, and he will sustain a future loss of wages and wage earning capacity; he has incurred medical expenses and costs for medical treatment, and he will incur future medical costs and the cost of future medical treatment . . . ." See id. In accordance with Louisiana Code of Civil Procedure article 893, Plaintiff did not plead a specific damage amount in his petition.
Defendant, Home Depot, filed a Notice of Removal on April 4, 2002. Invoking this Court's diversity jurisdiction, Defendant asserted that "the amount in controversy in this matter exceeds the jurisdictional limits" and "complete diversity between the proper parties exists." See Notice of Removal, at 2. On May 2, 2002, Plaintiff moved to remand, arguing that the amount in controversy does not exceed $75,000. Defendant opposes remand and maintains that it is "facially apparent" that Plaintiff's claims exceed $75,000, or, in the alternative, that additional evidence supports the conclusion that the jurisdictional amount was satisfied at the time of removal.
II. ANALYSIS
28 U.S.C. § 1441(a) provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant . . . to the district court." See 28 U.S.C. § 1441(a) (1994). District courts have original jurisdiction of all civil actions between citizens of different states in which the matter in controversy exceeds $75,000.00. See 28 U.S.C. § 1332(a)(1). The removing party bears the burden of proving that a district court has jurisdiction over a matter. See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993).
In this case, complete diversity exists and removal is contested solely on the basis of jurisdictional amount, i.e., whether the matter in controversy exceeds $75,000. The Fifth Circuit Court of Appeals has established a clear analytic framework for resolving jurisdictional disputes over the amount in controversy when, as here, no monetary amount of damages is asserted. Luckett v. Delta Airlines, 171 F.3d 295, 298 (5th Cir. 1999). The removing defendant must prove, by a preponderance of the evidence, that the amount in controversy exceeds $75,000. Id. The defendant may make this showing in two ways: (1) by demonstrating that it is "facially apparent" that the claims are likely in excess of $75,000, or (2) "by setting forth the facts in controversy — preferably in the removal petition, but sometimes by affidavit — that support a finding of the requisite amount." Id. (citing Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)) (emphasis in original); see also Manguno v. Prudential Prop. Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (explaining that the defendant may set forth "`summary judgment type evidence' of facts in controversy that support a finding of the requisite amount"). If a defendant satisfies this burden, the plaintiff must then prove "to a legal certainty" that the claim is less than $75,000. De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
In this case, Plaintiff seeks damages for a variety of serious injuries and losses including injuries to his "left lower extremity and back" as well as "physical, emotional and mental pain and anguish," disability, past loss of wages and future loss of wages and past and future medical expenses and treatment. See Petition for Damages, at 2. The Defendant argues that in light of these serious allegations, it is "facially apparent" that Plaintiff damages could reasonably exceed $75,000. In the alternative, Defendant offers "summary judgment like evidence" to establish the jurisdictional amount. As evidence, Defendant submits the affidavit of trial attorney Douglas Williams, who explains that he based the decision to remove, in part, on telephone conversations with Plaintiff's attorney who indicated that as a result of the incident, the Plaintiff may require knee surgery in the future and has missed work since November. See Supplemental Affidavit of Douglas K. Williams, at 2. Also attached as evidence of the amount of damages is an MRI of Plaintiff's lumbar spine, which reflects a bulging disc. See MRI Report, attached as Exhibit 2-C to Defendant's Opposition to Motion to Remand.
In reply, Plaintiff asserts that "an injury can be `serious' to a plaintiff, but still not meet the monetary threshold of federal diversity jurisdiction." See Reply Brief to Defendant's Memorandum in Opposition to Motion to Remand, at 1. Plaintiff also notes that there is "nothing in the petition which quantifies the level of severity of Plaintiff's injuries" and emphasizes that Plaintiff does not claim that his injuries are permanently disabling. See id. at 3.
The Court finds that the amount in controversy in this case exceeds $75,000. Although the allegations in Plaintiff's are somewhat generic, it is "facially apparent" that his claims exceed $75,000. Plaintiffs seeks damages for physical, emotional and mental pain and anguish, loss of enjoyment of life, disability, past and future wages, past and future medical treatment and expenses, and "serious" physical injuries to the back and lower extremity. See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000) (finding claims for "injuries to her right wrist, left knee and patella, and upper and lower back," as well as "medical expenses, physical pain and suffering, mental anguish and suffering, loss of enjoyment of life, loss of wages and earning capacity, and permanent disability and disfigurement" supported removal jurisdiction). Compare Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850-51 (5th Cir. 1999) (jurisdictional amount not "facially apparent" where Plaintiff's injuries were "less severe" and Plaintiff did not claim damages for emotional distress or disability).
In addition, the Defendant has submitted "summary judgment type evidence" including the results of Plaintiff's MRI, which establishes by a preponderance of the evidence that these claims exceed the jurisdictional amount. Plaintiff has not offered any contradictory evidence to prove that his claims do not exceed $75,000 and has not stipulated, or even asserted, that he does not seek damages in excess of $75,000. See, e.g., Diaz v. EZ Serve Convenience Stores, Inc., No. Civ. 97-3936, 1998 WL 101693, at *2 (E.D. La. Mar. 4, 1998) (denying motion to remand and noting that Plaintiff's had not provided a stipulation or other "credible evidence" that their claims do not exceed $75,000); see also De Aguilar, 47 F.3d at 1412 (noting that litigants who want to avoid removal may file a binding stipulation or affidavit with their complaints).
III. CONCLUSION
For the foregoing reasons, Plaintiff's motion to remand is DENIED.