Summary
In Seaman, the plaintiff sought damages for "serious injuries to his mind and body, including, but not limited to neck and back, past and future mental and physical pain and suffering, lost wages, loss of future earning capacity, medical expenses and related expenses."
Summary of this case from Jacob v. Greyhound Lines, Inc.Opinion
Civ. No. 99-3811.
February 18, 2000.
MEMORANDUM AND ORDER
On March 11, 1999, Plaintiff, Larry Seaman, commenced this action in the 25th Judicial District Court for the Parish of Plaquemines, against Defendants, Tetra Applied Technologies, Inc. ("Tetra"), as the owner, operator and/or controller of the vessel Tetra Rig 3, and ABC Insurance Company, as Tetra's alleged liability insurer. He is seeking damages, costs and interests for "serious injuries to his mind and body, including, but not limited to neck and back, past and future mental and physical pain and suffering, lost wages, loss of future earning capacity, medical expenses and related expenses." Plaintiff claims that he sustained his injuries when he fell down a set of stairs immediately after the Tetra Rig 3 struck Plaintiff's vessel, the M/V TERRI LYNN, on September 27, 1998. Plaintiff served Tetra on March 17, 1999.
Plaintiff's Petition for Damages, ¶ 9.
On December 20, 1999, Tetra filed a petition for removal alleging diversity jurisdiction. Tetra averred that it first became aware that the amount in controversy exceeds $75,000.00, exclusive of costs and interests, upon receipt of a doctor's report recommending that Plaintiff undergo lower back surgery for his alleged injuries. Tetra claims that it received this report on December 2, 1999.
Motion
On January 18, 2000, Plaintiff filed a motion to remand the case, claiming that, pursuant to 28 U.S.C. § 1446(b), Tetra's removal is untimely. Plaintiff argues that, based on the allegations in his Petition for Damages, Tetra knew that the amount in controversy exceeds the jurisdictional amount required by 28 U.S.C. § 1332. Plaintiff also seeks attorney's fees and costs pursuant to 28 U.S.C. § 1447(c). Tetra opposes Plaintiff's motion, arguing that it timely removed the action.
Discussion
Generally, a defendant may remove a civil action filed in state court if the federal court has original jurisdiction over the subject matter of the case. pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over the subject matter of all actions where (1) the amount in controversy exceeds $75,000.00, exclusive of interest and costs and (2) complete diversity of citizenship exists between the plaintiffs and the defendants.
See 28 U.S.C. § 1441(a).
The removing party bears the burden of establishing the existence of federal jurisdiction. In determining whether the defendant has met its burden with respect to diversity jurisdiction, federal courts examine the jurisdictional facts as of the time of removal.
See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
See Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 849 (5th Cir. 1999) (citing Allen, 63 F.3d at 1335; Asociasion Nacional de Pescadores a Pequena Escala o Artesanales de Columbia (ANPAC) v. Dow Quimica de Columbia, S.A., 988 F.2d 559, 565-66 (5th Cir. 1993)).
Recently, the Fifth Circuit articulated a clear framework for evaluating the basis of the jurisdictional amount for diversity jurisdiction in actions removed from Louisiana state courts. In situations where the state court petition for damages fails to claim a specific amount in controversy, the removing party bears the burden of proving by a preponderance of the evidence that the jurisdictional amount exceeds $75,000.00, exclusive of interest and costs. The removing party may meet this burden either by (1) demonstrating that it is "facially apparent" from the complaint that the amount in controversy exceeds the jurisdictional amount or (2) "setting forth facts in controversy — preferably in the removal petition, but sometimes by affidavit — that support a finding of the requisite amount."
See Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
Id.
When examining the complaint to determine whether it is facially apparent that the amount in controversy exceeds the jurisdictional amount, courts look beyond "fairly vanilla" allegations and seek to determine the extent of plaintiff's injuries. Courts also examine the complaint to determine if plaintiff requested a trial by jury in state court, which requires the claim to be for at least $50,000 in Louisiana.
See Parker v. Millar Elevator Services Co., 2000 WL 64289, at *3 (E.D.La. Jan. 26, 2000) (citing Palmer v. Wal-Mart Stores, Inc., 1996 WL 20862, at *1 (E.D. La. Jan. 17, 1996)).
See Parker, 2000 WL 64289, at *2 (citing La. Code Civ. P. Art. 1732(1)).
When the complaint fails to establish that the jurisdictional amount has been met, the removing party must set forth facts in controversy that support a finding that the amount in controversy exceeds $75,000.00, exclusive of costs and interest. To meet its burden, the removing party must do more than direct the Court's attention to state law that might allow recovery over the jurisdictional amount; it "must submit `summary-judgment-type evidence' to establish that the amount in controversy exceeds the jurisdictional amount." Once the removing party meets its burden, the burden shifts to the plaintiff to show with legal certainty that the recoverable amount will not exceed the jurisdictional amount.
De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
See id.
In addition to the allegational and evidentiary requirements of removing state court actions, Title 28, United States Code, Section 1446(b) imposes timing constraints on the removing party:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
Here, it is clear that Tetra timely removed the action within thirty days from the date it first ascertained that the action was removable. Plaintiff's Petition for Damages alleges only that Plaintiff fell down a set of stairs and injured his neck and back and seeks general damages for those injuries. Plaintiff merely alleges that he "sustained serious injuries to his mind and body, including, but not limited to neck and back, past and future mental and physical pain and suffering, lost wages, loss of future earning capacity, medical expenses and related expenses." These allegations are "fairly vanilla" and in no way indicate the severity of Plaintiff's injuries. The amount in controversy is, therefore, not facially apparent from the complaint. Indeed, had Tetra sought removal based on the allegations in Plaintiff's Petition for Damages, Tetra would have failed to carry its burden to prove that federal jurisdiction over the subject matter of the case exists.
Rather than file a premature removal petition, Tetra waited until it received some evidence that the amount in controversy exceeds the jurisdictional amount. After receiving that evidence, Tetra timely filed its removal petition.
Accordingly,
IT IS ORDERED that Plaintiff's Motion to Remand and for Attorney's Fees and Costs is DENIED.
New Orleans, Louisiana, this 17 day of February, 2000.