Summary
suggesting that a "stipulation between the parties" is required in Louisiana, rather than a mere unilateral statement
Summary of this case from Wilson v. Hochheim Prairie Cas. Ins. Co.Opinion
CIVIL ACTION NO: 02-3507 SECTION "R" (5)
January 29, 2003
ORDER AND REASONS
ORDER AND REASONS
Before the Court is plaintiff's motion to remand or, in the alternative, request for a jury trial. For the following reasons, the Court grants plaintiff's motion to remand.
I. Background
Plaintiff Donyell Price alleges that she was terminated from her employment with defendant Smart Professional Photocopy Corporation because of her race and because she was pregnant. Price worked on commission as a copy representative at Charity Hospital. Her job responsibilities included answering phones, abstracting information from patient charts, copying and faxing medical information to hospitals and clinics, and keeping logs of work performed. She alleges that she never received a write-up or verbal warning during the course of her employment. Price discovered that she was pregnant in September 2001. She alleges that she faced hostility from the site coordinator, Tory Matherne, after she informed her co-workers and supervisor of her pregnancy. Price left for maternity leave on April 21, 2002, and gave birth to her child on April 24, 2002. One month later, defendant informed her that there were no open positions to which she could return. Price alleges that she was replaced by a less qualified, nonpregnant female.
Price filed a petition in state court raising purely state law claims, namely, violations of Louisiana's anti-discrimination laws, LA. Rsv. STAT. ANN. § 23:341, et seq. and LA. REV STAT. § 23:332, et seq. The damages that Price seeks to recover consist of general compensatory damages (including loss of professional reputation and the inconvenience of bringing this lawsuit), back pay, front pay, and attorney's fees. In the petition, Price "stipulates that all damages, including attorney's fees but excluding interest and costs, do not exceed $75,000.00." (Petition ¶ XI.) It does not appear that defendant ever agreed to plaintiff's stipulation. Rather, defendant timely removed the lawsuit to this Court based upon diversity jurisdiction — plaintiff is a citizen of Louisiana and defendant is incorporated in California and maintains its principal place of business in Georgia. Defendant asserts, despite Price's "stipulation" to the contrary, that the amount in controversy exceeds the jurisdictional minimum. Price now moves the Court to remand this lawsuit on the ground that the jurisdictional minimum of $75,000 is not met. 28 U.S.C. § 1332(a). Along with her motion to remand, Price submits a sworn statement, signed but not notarized, in which she states that she read and signed the original petition and that she understands that she is bound by the stipulation as to damages in the petition. (Pl.'s Mot. to Remand, Ex. B.) Price adds that she has received no medical treatment for her emotional and general damages. (Id.)
Although Louisiana law does not permit plaintiff to plead a specific amount of damages, she is permitted to make "a general allegation that the claim exceeds or is less than" a particular amount if making such an allegation is necessary to establish the lack of jurisdiction of federal courts due to insufficiency of damages. LA. CODE CIV. PROC. art. 893.
II. Discussion
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). As the removing party, defendant bears the burden of establishing that federal jurisdiction exists at the time of removal. See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995); De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). The jurisdictional facts supporting removal must be examined as of the time of removal. Asociacion Nacional de Pescadores a Peguena Escala o Artesanales de Columbia ("ANPAC") 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), rev'd on other grounds, 119 S.Ct. 1563 (1999). Because the exercise of removal jurisdiction raises significant federalism concerns, these provisions are strictly construed. See Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872 (1941); Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996)
In De Aguilar, the Fifth Circuit addressed whether a plaintiff's stipulation as to damages in a state court petition controls the amount in controversy. In that case, the state court defendants attempted to remove a lawsuit based on diversity jurisdiction even though the plaintiffs alleged in the state court petition that the amount in controversy did not exceed $50,000. The Fifth Circuit began by noting that the sum claimed by the plaintiff controls if the claim is made in good faith. De Aguilar, 47 F.3d at 1408 (citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590 (1938)). The problem, however, is that many states do not limit damage awards to the amount specified in state pleadings, "creat[ing] the potential for abusive manipulation by plaintiffs, who may plead for damages below the jurisdictional amount in state court with the knowledge that the claim is actually worth more . . . ." Id. at 1410. This sort of manipulation amounts to bad faith. Accordingly, when a defendant seeks to remove a lawsuit in which the plaintiff has stipulated in the state court petition to an amount in controversy that is below the jurisdictional minimum, the defendant must show, by a preponderance of the evidence, that the amount in controversy actually exceeds the jurisdictional amount. Id. at 1411. The De Aguilar court expressly rejected a "some possibility" standard in favor of the preponderance standard, which "forces the defendant to do more than point to a state law that might allow the plaintiff to recover more than what is pled." Id. at 1411-12. This ensures that federal jurisdiction may not be predicated on "bare allegations." ANPAC, 988 F.2d at 566. The defendant can meet the preponderance burden either by establishing that it is "facially apparent" from the petition that the claims exceed the jurisdictional amount, or by producing "summary judgment-type evidence" establishing facts that support such a finding. St. Paul Reinsurance Company, Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); see also Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882-83 (5th Cir. 2000). Importantly, even if the defendant meets the preponderance burden, a plaintiff can still defeat removal by showing to a legal certainty that she will not be able to recover more than the damages for which she has prayed in the state court petition. De Aguilar, 47 F.3d at 1411-12. This may be accomplished., for example, by submitting, along with the complaint, a stipulation between the parties as to the amount in controversy. Greenberg, 134 F.3d at 1254 n. 18; see also LA. CODE CIV. PROC. art. 5; Bullock v. Graham, 681 So.2d 1248, 1250 (La. 1996) (holding that the plaintiff's recovery could not exceed the amount of an uncontested stipulation between the parties that was not in derogation of law).
Since De Aguilar, the Fifth Circuit has "remained vigilant to the potential for manipulation by the plaintiff who prays for damages below the jurisdictional amount even though he knows that his claim is actually worth more." St. Paul Reinsurance Company, Ltd. v. Greenberg, 134 F.3d 1250, 1254 n. 18 (5th Cir. 1998).
The Court therefore begins by addressing whether defendant has shown, by a preponderance of the evidence, that the amount in controversy exceeds the jurisdictional minimum. Defendant produces no "summary judgment-type" evidence. Instead, defendant asserts that it is facially apparent from the petition that the jurisdictional minimum is met. As to plaintiff's claim for general compensatory damages, defendant surmises that plaintiff might seek to recover for mental anguish. If she did, it is unclear from the face of the petition what these damages might amount to. To recover anything for mental anguish, Price must establish the manifestation of some discernable injury to her emotional state. Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 808 (5th Cir. 1996). The petition makes no mention of any such injury. Furthermore, even if Price establishes such an injury, she might recover as little as $7,500, which is the amount that the plaintiff recovered in Farpella-Crosby. Id. Defendant cites to a number of cases in which a plaintiff was awarded mental anguish damages in excess of $75,000, but those cases involved injuries that, at least as appears from the face of the petition, were more extreme than those sustained by Price. See Hanley v. Doctors Hospital of Shreveport, 2002 WL 1207474, *1-2 (La.Ct.App. 2002) (awarding $180,000 for emotional pain and suffering where the plaintiff was "obviously depressed" and suffered from diarrhea and constant headaches and stomach aches); Craven v. Universal Life Ins. Co., 670 So.2d 1358, 1372 (La.Ct.App. 1996) (awarding $100,000 in general damages to the plaintiff, a victim of a quid pro quo sexual harassment, who suffered from depression)
The only indication that Price has suffered emotional damages of any kind appears not in the petition but in her sworn statement, attached to her motion to remand, in which she attests that "I have received no medical treatment for my emotional and general damages." (Pl.'s Mot. to Remand, Ex. B.)
The Court further finds that it is unclear to what extent plaintiff could recover on her claims for loss of professional reputation, loss of back pay, and loss of front pay. Defendant asserts that Price earned a salary of $22,809.60 when she was terminated. Price does not assert what her salary was in her petition, and defendant produces no evidence to support its argument about how much salary Price received. The nature of any loss of professional reputation, and whether she had difficulty obtaining further employment, is unknown.
Having addressed plaintiff's claims for general damages, loss of professional reputation, front pay, and back pay, all that remains of plaintiff's claims for damages are "other damages, " a claim as vague as vague can be, and a request for attorney's fees. Under Louisiana's anti-discrimination statutes, a prevailing party can be awarded attorney's fees. LA. REV. STAT. ANN. ¶ 23:303(A). The amount that Price may recover in attorney's fees remains highly speculative. In its motion in opposition to plaintiff's motion to remand, defendant concedes that an award of attorney's fees can range from $10,000 to $123,000. (Def.'s Opp. to Pl's Mot. to Remand, at 5.)
A tally of plaintiff's claims for general damages, front pay, back pay, and attorney's fees, at least as these claims appear from the face of the petition, is not likely to yield a sum greater than $75,000. In making this calculation, the Court notes that it is free to consider plaintiff's signed and sworn statement, attached to her motion to remand, in which she attests that she "understand[s] that I am bound by the stipulation in which I stated that my damages do not exceed $75,000 exclusive of interest and costs and inclusive of attorneys' fees." (Pl.'s Mot. to Remand, Ex. B.) The Court therefore concludes that defendant has failed to show by a preponderance of the evidence that the jurisdictional amount is met. This burden cannot be met simply by citing to a string of worst case scenarios, lawsuits in which plaintiffs obtained large recoveries for injuries that, as far as anyone can tell from the petition, surpass those sustained by Price. De Aguilar, 47 F.3d at 1412. If the preponderance burden could be met in this manner, the jurisdictional minimum requirement would be stripped of any meaning.
Jurisdiction attaches at the time of removal, and post-removal events cannot be used to deprive a court of jurisdiction. ANPAC, 988 F.2d at 565. Therefore, a post-removal affidavit cannot be used to change a damage request. Id. It may, however, be used to "clarify a petition that previously left the jurisdictional question ambiguous." Id.; Parker v. Millar Elevator Services Co., 2000 WL 64289, *3 (E.D.La. 2000).
III. Conclusion
For the reasons stated above, the Court grants plaintiff's motion to remand.