Opinion
Civil Action No. 04-2146, Section I/3.
February 18, 2005
ORDER AND REASONS
Before the Court is a motion, filed on behalf of plaintiff, Linda Nelson, to remand this action to Orleans Parish Civil District Court pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction. For the reasons set forth below, plaintiff's motion is DENIED.
BACKGROUND
This matter arises out of an alleged incident that occurred at a retail store operated by defendant, Family Dollar Stores of Louisiana, Inc. ("Family Dollar"). Plaintiff alleges that on July 3, 2003, a Family Dollar employee pushed a hand truck into her while she was shopping in defendant's store and knocked her into some shelves causing personal injuries. On July 2, 2004, plaintiff filed this action in Orleans Parish Civil District Court against, inter alia, Family Dollar alleging that the employee's negligent operation of the hand truck proximately caused plaintiff's injuries. On July 30, 2004, Family Dollar removed this action pursuant to 28 U.S.C. § 1441 alleging diversity jurisdiction pursuant to 28 U.S.C. § 1332. On December 6, 2004, plaintiff filed the instant motion to remand arguing that this Court lacks subject matter jurisdiction over this action because the jurisdictional amount is not present in this case.ANALYSIS
A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction. Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citation omitted). The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper. Id. (citations omitted). In order to determine whether jurisdiction exists, a court will consider the claims in the state court pleadings as they existed at the time of removal. See id.; Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995). Any ambiguities are construed against removal because removal statutes should be strictly construed in favor of remand. Acuna v. Brown Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).I. Amount in Controversy
Federal courts have original jurisdiction over cases between citizens of different states "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332. However, Louisiana plaintiffs are ordinarily prohibited from specifying a monetary amount of damages in their state court petitions. La. Code Civ. Proc. art 893(A)(1); Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). When a plaintiff has not alleged a specific amount of damages, a removing defendant bears the burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75,000. Luckett, 171 F.3d at 298; De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993) (" DeAguilar I"). The defendant may make the requisite showing in either of two ways: (1) by demonstrating that it is facially apparent that the claims are likely above $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. Grant v. Chevron Phillips Chem. Co., 309 F.3d 864, 868 (5th Cir. 2002); Luckett, 171 F.3d at 298; Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). Once a defendant has made such a showing, diversity jurisdiction may be defeated only if the plaintiff demonstrates to a "legal certainty" that the amount in controversy does not exceed $75,000. Grant, 309 F.3d at 869; see Fairchild v. State Farm Mut. Auto. Ins. Co., 907 F.Supp. 969, 970 (E.D. La. 1995). The Fifth Circuit has emphasized that "`this is not a burden-shifting exercise'; rather, the `plaintiff must make all information known at the time he filed the complaint.'" Grant, 309 F.3d at 864 (quoting DeAguilar II, 47 F.3d at 1412). One such way for a plaintiff to satisfy the legal certainty test is to file a binding stipulation or affidavit in a Louisiana state court along with the petition. See De Aguilar II, 47 F.3d at 1412.
It is undisputed that complete diversity of citizenship exists in this case.
Regardless of the method of proof used to establish the jurisdictional amount, the jurisdictional facts must be judged at the time of removal. See De Aguilar v. Boeing Co. 47 F.3d 1404, 1412 (5th Cir. 1995) (" De Aguilar II"). A subsequent reduction of the amount claimed cannot oust the district court's jurisdiction. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000); Marcel v. Pool Co., 5 F.3d 81, 84 (5th Cir. 1993). Although a court may consider post-removal evidence that clarifies the jurisdictional facts as they existed at the time of removal, a court may not consider post-removal events in determining whether the amount in controversy is met. See St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1254 n. 18 (5th Cir. 1998); Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia S.A., 988 F.2d 559, 565 (5th Cir. 1993), abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998).
Plaintiff's petition alleges that as a result of defendant's negligence, plaintiff sustained serious, progressive and disabling injuries which consisted of headaches, dizziness, blurred vision in the left eye, cervical spine strain and general bruises and contusions about her body. Plaintiff seeks damages for physical pain and suffering, mental anguish and distress, lost wages, loss of earning capacity, medical expenses and other reasonable damages. Defendant argues that the plaintiff's allegations make it facially apparent that the amount in controversy is met in this case. The Court agrees.
Id., ¶ 5.
Id., ¶ 7.
The number and nature of the alleged injuries and damages sought weigh in favor of finding that it is facially apparent from plaintiff's petition that the amount in controversy exceeds $75,000. In Robinson v. Delchamps, Inc., 1998 WL 352131, *1 (E.D. La. Jun. 30, 1998), a plaintiff alleged negligence on the part of defendant arising out of a slip and fall suffered while on the premises of defendant's store. Robinson, 1998 WL 352131 at *1. In denying plaintiff's motion to remand, the court noted that the plaintiff alleged nine different types of damages, including past and future physical and mental pain and suffering, loss of income, and medical expenses. Id. Additionally, the court noted that plaintiff alleged that she would continue to suffer in the future. Id. The court, in viewing both the petition on its face and the factual underpinnings, held that the amount in controversy met the jurisdictional requirement. Id.
See also Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 881 (5th Cir. 2000) (holding that the jurisdictional amount was met when plaintiff alleged damages for 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).
The Court finds Robinson persuasive on the facts presented in this case. Plaintiff has alleged that she suffered serious injuries, including a spinal injury, which have caused headaches, dizziness and blurred vision. Additionally, plaintiff alleges that her injuries are both progressive and disabling. As compensation for her injuries, plaintiff seeks both past, present, and future damages. The Court finds that defendant has met its burden of demonstrating that it is facially apparent from plaintiff's petition that the amount in controversy is likely to exceed $75,000. Accordingly, this Court has diversity jurisdiction unless plaintiff demonstrates to a legal certainty that the amount in controversy does not exceed $75,000.
In support of remand, plaintiff points to two pre-removal letters addressed to defendant in which her counsel offered to settle plaintiff's claim with Family Dollar for $13,695. Additionally, plaintiff states in her brief to this Court that she stipulates that the amount in controversy is not met in this case. The Court finds that neither the letters nor plaintiff's post-removal attempt to stipulate meets the "legal certainty" standard that is necessary to defeat this Court's jurisdiction.
Rec. Doc. No. 15.
Although the settlement letters may be relevant to demonstrating plaintiff's counsel's evaluation of an appropriate compromise prior to instituting a lawsuit, an offer to settle a case does not necessarily establish a fixed ceiling on a plaintiff's damages should a case proceed to trial. See e.g., Jackson v. Am. Bankers Ins. Co. of Fla., 976 F.Supp. 1450, 1454 (S.D. Ala. 1997) ("[I]t is not the settlement value of a case that determines whether the jurisdictional amount is in controversy. The appropriate measure is the litigation value of the case assuming that the allegations of the complaint are true and assuming a jury returns a verdict for the plaintiff on all claims made in the complaint."); Carnahan v. Southern Pac. R.R. Tans. Co., 914 F. Supp. 1430, 1431-32 (E.D. Tex.) ("[T]he rational amount for which one is willing to settle is generally less than the maximum jury award that is reasonably plausible at the conclusion of a successful trial."); McCartney v. Rosenblatt, 1991 WL 129993, *2 (E.D.Pa. July 15, 1991) ("[O]ffers to settle a claim by plaintiffs involve their willingness to take less than the amount which they could expect to obtain by a jury verdict in order to secure immediate payment and avoid the inconvenience of litigation. It is impossible to determine, from a settlement demand, how much less than the objective value of a claim a party is willing to take to obtain immediate relief."). As the Fifth Circuit has noted, the "legal certainty" standard requires a plaintiff to show either some state law which would operate to prevent recovery in excess of the federal jurisdictional amount or that a plaintiff is "bound irrevocably" to recover an amount less than the federal jurisdictional amount. See De Aguilar II, 47 F.3d at 1412 n. 10. That showing has not been met in this case. The letters from plaintiff's counsel state that counsel will "suggest" and "recommend" a compromise in the amount of $13,695, but they do not contain any indication that plaintiff bound herself to recover less than the federal jurisdictional amount should settlement not occur.
Rec. Doc. No. 14, Ex. 1.
Finally, to the extent that plaintiff attempts to now stipulate that she will not seek an amount in excess of $75,000, plaintiff's post-removal stipulation will not satisfy the legal certainty test. See Nelson v. Nationwide Mut. Ins. Co., 192 F. Supp.2d 617, 619 (E.D. La. 2001) ("[I]f it is facially apparent from the petition that the amount in controversy exceeds $75,000 at the time of removal, post-removal affidavits, stipulations, and amendments reducing the amount do not deprive the district court of jurisdiction.").
Accordingly, the Court finds that the federal jurisdictional amount requirement is met in this case and this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332. IT IS ORDERED that plaintiff's motion to remand this action for lack of subject matter jurisdiction is DENIED.