Opinion
CIVIL ACTION NO. 02-405, SECTION A(4)
October 4, 2002
ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 12.) filed by plaintiff, Allison Arcement. Defendant, Metabolife International, Inc., ("Metabolife") opposes the motion. The motion, set for hearing on June 19, 2002, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is GRANTED.
BACKGROUND
This is a products liability action brought by Allison Arcement for injuries she allegedly sustained from ingesting Metabolife 356 between September 1999 and January 2000. Rec. Doc. 18, Exh. A, ¶ 5. Arcement filed suit in the 23rd Judicial District Court, Parish of Assumption, alleging that she sustained "injuries, including, but not limited to chest pains and heart and stomach problems" as a result of taking Metabolife 356. Rec. Doc. 18, Exh. A, ¶ 16. Pursuant to Louisiana Code of Civil Procedure 893, Arcement made no specific representations as to the amount of damages sought. See La. Code Civ. P. art. 893(A)(1.). Metabolife removed the case to this Court alleging diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). Arcement now moves to remand the case to state court.
THE PARTIES' CONTENTIONS
Arcement contends that removal was improper because the amount in controversy does not exceed $75,000. Rec. Doc. 12. She points out that the notice of removal offers nothing more than what is contained in her petition, and that it is not "facially apparent" from the petition that the amount in controversy exceeds $75,000.00.
In opposition, Metabolife contends that based upon Arcement's representations as to the nature of her injuries, other evidence available to date, and Arcement's own actions, it is clear that she believes that her damages exceed $75,000.00. Rec. Doc. 18.
DISCUSSION
In Luckett v. Delta Airlines, Inc., the Fifth Circuit summarized the analytical framework for determining whether the amount in controversy requirement is met in cases removed from Louisiana state courts where no specific allegations as to damage quantum are allowed. 171 F.3d 295, 298 (5th Cir. 1999). In such cases, the removing defendant, as the party invoking the federal court's jurisdiction, bears the burden of proving, by a preponderance of the evidence, that the amount in controversy exceeds $75,000. Id. (citing De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993)). As the Fifth Circuit explained:
The defendant may make this 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.Id. (citing Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
If defendant meets this initial burden, plaintiff can only obtain remand by showing that it appears to a legal certainty that the claims are really less than the jurisdictional amount. De Aguilar v. Boeing Co., 47 F.3d 1404, 1411 (5th Cir. 1995). The jurisdictional facts that support removal are to be judged as of the time of removal and post-removal affidavits and amendments cannot divest the court of jurisdiction once it attaches. See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). However, evidence such as medical records shall be considered when offered to clarify the allegations made at the time of removal. See id. Plaintiff's subjective belief as to the value of her claims does not relieve defendant of its burden. See Lund v. Wal-Mart Stores, Inc., 2000 WL 264003 (E.D. La. Mar. 8, 2000) (McNamara, C.J.).
In the instant case, Metabolife did not file any affidavits or set forth any facts in controversy in its Notice of Removal petition to support a finding that the amount in controversy exceeds $75,000. Therefore, the Court must determine whether Metabolife has met its burden of showing that it is "facially apparent" from Arcement's state court petition that the claims are likely to exceed $75,000.
Arcement's petition alleges various theories of liability including products liability, breach of warranty, fraud, and negligence. Although the petition is 64 paragraphs in length, Arcement's only alleged injuries are "injuries, including, but not limited to chest pains and heart and stomach problems," Rec. Doc. 18, Exh. A, ¶ 16, and "medical, health, incidental and related expenses," id. at ¶ 25. She further states that "she will in the future be required to obtain medical and/or hospital care, attention, and services in the amount that is not yet ascertained." Id. at ¶ 25. There is no demand for lost wages, attorney's fees, punitive damages, or any other type of statutory penalty. Thus, the rather sparse allegations outlined above are the only damage allegations made in the petition. These plain vanilla allegations standing alone fall far short of establishing that Arcement's claims exceed $75,000.00.
In an attempt to clarify that these damage allegations do in fact meet the jurisdictional minimum, Metabolife has provided copies of Plaintiff's medical records from what appear to be several emergency room visits. Those records show that Arcement presented at various clinics and emergency rooms at multiple times complaining of chest pains and at times complaining of stomach problems, as well as hemorrhoids and a litany of other ailments. Rec. Doc. 18, Exh. D.
Upon review of this additional medical evidence the Court nevertheless remains unpersuaded that Metabolife has shown by a preponderance of the evidence that the damage claims exceed $75,000.00. While the records certainly tend to corroborate Arcement's assertions of chest and abdominal discomfort on the dates in question, they do nothing to demonstrate the ongoing nature or severity of any of Arcement's injuries. Thus, it is nearly impossible to ascertain any amount in controversy with respect to Arcement's claim to future medicals. Nor are the records indicative of Arcement's actual medical expenses. Any conclusions as to the jurisdictional amount would require sheer speculation — a foundation upon which subject matter jurisdiction cannot be built. Thus, the Court concludes that Metabolife has failed to meet its initial burden of showing that the claims exceed $75,000.00.
Metabolife has asserted that Plaintiff has been less than helpful in providing information and discovery regarding the jurisdictional amount. Metabolife also asserts that Plaintiff has attempted to "manipulate the pleadings" in order to avoid federal subject matter jurisdiction and that the Court should deny Plaintiff's motion on that ground alone.
As to the first assertion, 28 U.S.C. § 1446 protects defendants from such tactics by tolling the 30 day period for removal when the initial pleading does not render the case removable. In such a case, defendant can later remove when it has evidence sufficient to establish that the jurisdictional amount is satisfied. See 28 U.S.C. § 1446(b). As for the second assertion, Metabolife must surely be aware that subject matter jurisdiction cannot be established as a sanction against either party. See Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996) (untoward conduct by either party cannot preclude that party from challenging subject matter jurisdiction).
Accordingly;
IT IS ORDERED that Plaintiff's Motion to Remand (Rec. Doc. 12) should be and is hereby GRANTED. This matter is REMANDED to the 23RD JDC, Parish of Assumption.