Opinion
Case No. 3:04-CV-0072-K.
June 21, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs' Motion to Remand Having considered the merits of the motion, and for the reasons stated below, the motion is DENIED.
I. Background
On December 9, 2003, Plaintiffs filed suit against Defendant Bristol-Myers Squibb Company ("Bristol-Myers") and five unknown Defendants in County Court at Law No. 2 of Dallas County, Texas, for injuries allegedly caused by the use of Bristol-Myers's prescription drug Serzone, which is used to treat depression. Plaintiffs' original petition alleged that they each were seeking an amount "less than $75,000."
Claiming diversity of citizenship pursuant to 28 U.S.C. § 1332, Defendants removed the case to this Court. No issue exists as to the citizenship of the parties. Instead, the principle question to be determined concerns whether the amount in controversy meets the $75,000 threshold set out in § 1332(a).
II. Applicable Legal Standards
Upon the filing of a motion to remand, the removing party bears the burden of demonstrating that federal jurisdiction exists and that removal was proper. See Manguno v. Prudential Prop. Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). To determine whether jurisdiction is present for removal, the Court considers the claims in the state court petition as they existed at the time of removal. See id. The Court construes any ambiguities against removal, because the removal statute should be strictly construed in favor of remand See id.
The question in this case is whether Plaintiffs' claims reach the requisite amount in controversy. In order to determine the amount in controversy, a court considers the state court claims as they existed at the time of removal. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995). When a plaintiff challenges the removal of a case to federal court based on diversity jurisdiction, the removing party has the burden of showing that jurisdiction was proper. See Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993).
As a general rule, if a plaintiff claims damages less that the statutory amount, a bar is generally placed on removal. See Allen v. R.H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). However, this rule has its limitations. For instance, if the plaintiff does not plead a specific amount of damages, removal is proper if the defendant can show by a preponderance of the evidence that the amount in controversy exceeds the statutory limit. See id.; De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993) (hereinafter "De Aguilar I").
A defendant may meet this burden by showing either that it is obvious that the petition on its face alleges damages of more than the statutory requirement or that defendant presents sufficient facts which comprise "summary judgment" type evidence. See Manguno, 276 F.3d at 723. The distinct claims of multiple plaintiffs cannot be aggregated to reach the amount in controversy. See H D Tire and Automotive-Hardware, Inc. v. Pitney Bowes, Inc., 250 F.3d 302, 304-05 (5th Cir. 2001).
In a case where a plaintiff specifically alleges that his damages will not exceed the minimum jurisdictional amount, and the defendant removes the case based on diversity jurisdiction, the Court conducts a bifurcated analysis to determine if removal is proper. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1410 (5th Cir. 1995) (hereinafter "De Aguilar II"). The Court first determines whether the defendant can show by a preponderance of the evidence that the amount in controversy "actually exceeds" $75,000, and if the defendant meets that burden, the plaintiff must show that, as a matter of law, it is certain that he will not recover more damages than the damages sought in the state court petition. See id. at 1411.
III. Plaintiffs' Claims Reach the $75,000 Threshold
Bristol-Myers argues that Plaintiffs' claims actually exceed the jurisdictional amount, and that Plaintiffs cannot show that it is legally certain that they will be unable to recover more than $75,000.
Serzone is a prescription drug manufactured by Bristol-Myers which is used to treat depression. According to Plaintiffs' Original Petition, the drug "is designed to control depression by blocking postsynaptic serotonin type-2 receptors and inhibiting presynaptic serotonin reuptake. Serzone is also designed to block norepinephrine reuptake." In the Original Petition, Plaintiffs claim that they "have each suffered adverse effects from their Serzone ingestion, ranging from symptoms indicating the possibility of liver damage to other less serious effects."
Plaintiffs assert multiple causes of action against Defendants relating to the manufacture and distribution of Serzone, including negligence, gross negligence, strict liability, negligent manufacture, negligent misrepresentation, fraud, breach of warranty, unjust enrichment, and violations of the Texas Deceptive Trade Practices Act, Tex. Bus. Comm. Code § 17.41 et seq. ("DTPA"). The damages sought by Plaintiffs pursuant to these causes of action include attorneys fees, indefinite and continuing medical monitoring, punitive damages pursuant to Tex. Civ. Prac. Rem. Code § 41.008(b), and economic damages. When a plaintiff seeks attorneys' fees in his pleading, that amount is included in determining the amount in controversy. See Manguno, 276 F.3d at 723. Additionally, the DTPA allows trebling of economic damages if a plaintiff can show that an act was done knowingly. See Tex. Bus. Com. Code § 17.50(b)(1).
While Plaintiffs argue that the amount in controversy does not exceed $75,000 per claimant, Bristol-Myers argues that the claims do exceed that amount. In support of Plaintiffs' case, their lead attorney, Mr. William Fred Hagans, filed an affidavit attached to the Original Petition stating that the amount in controversy for each plaintiff "does not, never did, and never will exceed the sum of $75,000, including actual and exemplary damages and attorneys fees." However, Plaintiffs have cited no law stating that Mr. Hagans' affidavit is binding, and the Court could find none. Therefore, the Court gives no weight to Mr. Hagans' affidavit in this case. See De Aguilar II, 47 F.3d at 1410-11.
It is facially apparent that Plaintiffs' claims in this case surpass $75,000. In addition to seeking economic damages, trebled economic damages, costs for medical monitoring, and attorneys' fees, Plaintiffs also seek punitive damages for Defendants' acting "wantonly, maliciously, recklessly, fraudulently, intentionally, and/or with conscious indifference to the rights, safety, and welfare of Plaintiffs." While Mr. Hagans seeks to avoid federal jurisdiction by contending that Plaintiffs' individual claims are less than $75,000, the facts and causes of action asserted in the Original Petition itself indicate otherwise. Several previous decisions of the Fifth Circuit Court of Appeals support this conclusion. In Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999), the court applied the analytical framework set out above in determining that the damages alleged in the plaintiff's complaint exceeded $75,000. In that case, the plaintiff sued the defendant for damages resulting from the airline's losing her luggage, which contained her prescription medication. The plaintiff sued the defendant for damages she suffered as a result of not having her prescription medication for several days, and for the cost of the hospital stay that her lack of medication facilitated. See id. at 298. The court considered whether plaintiff's alleged damages for property, travel expenses, an emergency trip to the hospital, a six day stay in the hospital, pain and suffering, humiliation, and the temporary inability to do housework were sufficient to determine that the amount in controversy was in excess of $75,000. See id. The court held that the plaintiff's claims were sufficient, and held that it had jurisdiction over the case. See id.
In another case, Gebbia v. Wal-Mart Stores, Inc. 233 F.3d 880, 883 (5th Cir. 2000), the plaintiff sued the defendant based on a slip and fall in one of the defendant's stores. The plaintiff's original state court petition alleged injuries to her right wrist, left knee, and patella, and to her upper and lower back. See id. at 883. The plaintiff alleged that her damages included medical expenses, pain and suffering, mental anguish and suffering, and loss of enjoyment of life. Id. Again, the Fifth Circuit determined that the aggregation of the damage claims made the pleading's excess of the statutory figure "facially apparent." Id.
The principles espoused in Luckett and Gebbia apply to the case at bar, as the claims alleged here are easily as costly, if not more so, than the claims asserted in those cases. Like the plaintiff in Luckett, Plaintiffs here assert a broad group of claims, each with unliquidated damages. Plaintiffs seek damages for, among other things, lost wages, pain and suffering, medical expenses, attorneys' fees, and punitive damages. Indeed, Plaintiffs' own pleadings call the actions of Bristol-Myers "unconscionable." Taking all of these things into consideration, and applying common sense, it is apparent that if successful, these claims, more likely than not, reach at least $75,000. See Allen, 63 F.3d at 1336 (holding that a court, in applying only common sense, would find that the plaintiffs' claims reach more than the minimal jurisdictional threshold).
Because Defendants have met their burden of establishing the $75,000 figure by a preponderance of the evidence, Plaintiffs must prove by a legal certainty that they will not recover more damages than the amount in controversy. See De Aguilar II, 47 F.3d at 1412. Plaintiffs have not met this burden. Remand, therefore, is not appropriate in this case.
IV. Conclusion
For the reasons stated above, Plaintiffs' Motion to Remand is DENIED.