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finding allegation of disfigurement in Gebbia to be one of a few distinguishing factors
Summary of this case from Bonck v. Marriott Hotels, Inc.Opinion
Civil Action No: 01-2394, Section: "G"(4).
March 26, 2002
MEMORANDUM AND ORDER
Background
On July 18, 2001, plaintiff, Scott Touchet, commenced this litigation by filing suit in the 25th Judicial District Court for the Parish of Plaquemines, Louisiana. In his state court petition, plaintiff alleges that he was injured on or about July 19, 2000, while working on an offshore fixed platform owned and/or operated by Union Oil Company of California and/or Unical [sic] Corporation (collectively referred to as "Unocal"). Plaintiff, who was employed by TCB Industries, Incorporated, alleges that "suddenly and without warning, the walking surface upon which he was walking gave way causing him to fall through said grating and injure his neck, back, and other parts of his body." He seeks damages for ". . . mental and physical pain and suffering, past and future; medical expenses, past and future; loss of wages and impairment of earning capacity, past and future; permanent disability; and loss of enjoyment of life."
Petition for Damages, paragraph IV.
Petition for Damages, paragraph VIII.
The plaintiff does not make demand for a specific amount of damages, and in fact, is prohibited from doing so by La. Code Civ. P. art. 893, which provides that no specific monetary amount of damages shall be included in the allegations or prayer for relief of any demand.
On August 6, 2001, Unocal filed its notice of removal of the plaintiff's state court lawsuit to the United States District Court, Eastern District of Louisiana. In its notice of removal, Unocal alleges that this court has original jurisdiction pursuant to 28 U.S.C. § 1332 (a), for the reason that the suit is between citizens of different states, and the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. Defendant relies in its notice of removal solely on the allegations of the plaintiff's petition to establish that the amount in controversy exceeds the sum of $75,000.
Notice of Removal, Paragraph 5.
On February 28, 2002, during the course of a scheduled telephone status conference, plaintiff's attorney stated that he had made an offer of settlement that was substantially less than $75,000. Based upon that statement, and the discussion in general between the parties concerning the facts of the case, I questioned the plaintiff's attorney as to whether the amount in controversy had exceeded the sum of $75,000 at the time of removal. He stated that he did not believe that it had, and on March 8, 2002, plaintiff's attorney filed a motion to remand and a stipulation that plaintiff's damages are less than $75,000, exclusive of interest and costs. Defendant opposes the motion to remand.
Discussion
The Fifth Circuit has "established a clear analytical framework for resolving disputes concerning the amount in controversy for actions removed from Louisiana state courts pursuant to § 1332(a)(1)."Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000); citingLuckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Circ. 1999). Under La. Code Civ. P. art. 893, plaintiffs may not request a specific amount of damages in their state court petitions. Accordingly, the removing defendant "must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000." Id.
The defendant may prove the amount in controversy in one 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 by affidavit — that support a finding of the requisite amount.'" Luckett, at 298, quoting Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
The facts that support removal must be judged as of the time of removal. If it is facially apparent from the petition at the time of removal that the amount in controversy exceeds $75,000, the district court is not divested of jurisdiction by the filing of a post-removal stipulation. Gebbia, at 882. Conversely, if the amount in controversy is not facially or otherwise apparent at the time of removal, a district court may consider a stipulation filed in conjunction with a motion to remand. See, e.g., Alveris v. Shell Oil Company, 2001 WL 1313073 (E.D.La); Nelson v. Nationwide Mutual Ins. Co., et al., 2001 WL 1479107 (E.D.La.).
I find that the state court petition does not facially establish an amount in controversy adequate to establish the jurisdictional requirement. The plaintiffs alleges, without specificity, injuries to his "neck, back, and other parts of his body." There is nothing in the petition to suggest the level of severity of these alleged injuries. Further, the plaintiff's list of damages is a typical listing of damage categories that a prudent attorney will include in his petition when medical treatment or complaints of pain are ongoing. Accordingly, I will consider plaintiff's post-removal stipulation as one factor in determining whether jurisdiction existed at the time of removal.
The sole evidence which the defendant has produced to support its position that the amount in controversy is in excess of $75,000, is the plaintiff's deposition. This deposition, which was taken on October 30, 2001, less than three months after removal, does not support the defendant's contentions. Although Mr. Touchet does state in his deposition that he is unable to do any heavy lifting, he was out of work only twelve weeks, and suffered lost wages of only $9,312. His medical expenses to date are $5,309.30. He has had no surgeries and none have been recommended. Although defendant suggests that plaintiff's allegation of "permanent disability" in his petition substantially increases the amount in controversy, defendant has not offered any evidence suggesting the existence or extent of disability, or of a loss of earning capacity, or of a loss of any income other than the wages of $9,312 that accrued while he was off work for twelve weeks.
In Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000), the plaintiff claimed damages for medical expenses, physical and mental pain and suffering, loss of enjoyment of life, loss of wages and earning capacity, permanent disability, and disfigurement. She alleged injuries to her upper and lower back, as in the case before me. However, she made further specific allegations of injuries to her right wrist, and left knee and patella. The Fifth Circuit found that it was "facially apparent" from the petition that the amount in controversy exceeded $75,000. The additional allegations of injury to her right wrist, left knee and patella, and of disfigurement, distinguish the petition in Gebbia from the petition at issue in this case.
In Nelson v. Nationwide Mutual Ins. Co., et al., 2001 WL 1479107 (E.D. La.), cited by Unocal, the defendant submitted the plaintiff's answers to interrogatories as evidence of the amount in dispute. In the answers, plaintiff stated that he claimed $250,000 in general damages, and anticipated $25,000 future medical expenses for a possible spinal surgery. These answers clearly established an amount in controversy in excess of $75,000. Unocal, who has the burden of proving jurisdiction by a preponderance of the evidence, has failed to provide me with comparable proof. Further, Unocal has not provided me with any jurisprudence reflecting judgments in excess of $75,000 for similar injuries and circumstances.
Finally, Unocal argues that plaintiff should not be allowed on the eve of trial to seek remand. Defendant is correct that plaintiff waited more than seven months after removal to file his motion for remand, and did so only one month prior to trial. Further, I take notice of defendant's suggestion that plaintiff's belated jurisdictional challenge may be intended to circumvent the potential ramifications of his failure to timely file witness and exhibit lists. Nevertheless, I expressed my own concerns about jurisdiction during the February 28, 2002 telephone status conference, when I learned for the first time that the initial settlement offer was for an amount substantially less than $75,000. 28 U.S.C. § 1447 (c) provides, in relevant part, that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." Neither the court nor the parties to a federal civil action can confer or acquiesce to subject matter jurisdiction where none exists. See Simon v. Wal-Mart Stores, Inc., 193 F.3d 848 (5th Cir. 1999).
Conclusion
Unocal has failed to prove by a preponderance of the evidence that the amount in controversy at the time of removal was in excess of $75,000, exclusive of interest and costs. Since the petition is facially ambiguous as to this issue, I consider the plaintiff's stipulation as evidence that the amount in dispute is, indeed, less than the jurisdictional amount.
Accordingly,
Considering the foregoing,
IT IS ORDERED, that the plaintiff's motion to remand is GRANTED.