Summary
concluding it was not facially apparent that plaintiff's claims exceed $75,000, despite injuries alleged in the complaint such as fractured cheek bones, a fractured jaw, broken teeth, severe head injuries, severe neck injuries, and permanent disability
Summary of this case from Robertson v. Chevron USA, Inc.Opinion
Civil Action No: 02-2740
December 30, 2002
ORDER AND REASONS
Before the Court is plaintiff's motion to remand. Because defendant has not proved by a preponderance of the evidence that plaintiff's claims exceed the jurisdictional amount, the Court GRANTS the motion to remand.
I. BACKGROUND
This case arises out of an incident in which plaintiff, Jeffrey Bonck, was allegedly beaten up while an invitee at a Marriott Resident Inn. Plaintiff filed suit in state court, claiming that he suffered fractured cheek bones; a fractured jaw; broken teeth; severe head injuries; severe injuries to both shoulders, both arms, and both hands; severe neck injuries; and severe facial abrasions, lacerations and contusions. (See Pl.'s Compl. ¶ v.) Plaintiff also alleged that the defendant is liable for physical pain and suffering; mental anguish; permanent disability; past, present, and future medical expenses; past, present, and future loss of income; loss of earnings capacity; loss of enjoyment of life and loss of consortium; and any other damages shown at time of trial. ( See Id.)
Defendant removed to this Court based on diversity jurisdiction. Plaintiff now moves to remand on the basis that the Court does not have subject matter jurisdiction under 28 U.S.C. § 1332 (a) because the amount in controversy does not exceed $75,000. For the following reasons, the Court grants plaintiff's motion.
II. DISCUSSION
A defendant may generally remove a civil action filed in state court if the federal court would have had original jurisdiction. See 28 U.S.C. § 1441 (a). The removing party bears the burden of establishing the existence of federal jurisdiction. See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). The jurisdictional facts supporting removal are examined as of the time of removal. See 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, 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). Nevertheless, the case must be remanded to state court "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447 (c).
Louisiana law prohibits a plaintiff from pleading a specific amount of monetary damages. See LA. CODE CIV. PROC. art. 893. When the plaintiff has alleged an indeterminate amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). A defendant makes this showing when it is facially apparent that the claims are likely to exceed $75,000. See Allen, 63 F.3d at 1335. In the alternative, the defendant can set forth the facts in controversy, preferably in the removal petition, but sometimes by affidavit or stipulation, that support a finding of the requisite amount. See id. The defendant must do more than point to a state law that might allow plaintiff to recover more than what is pled; the defendant must submit "summary-judgment-type evidence" to establish that the actual amount in controversy exceeds $75,000. See De Aguilar, 47 F.3d at 1412. If defendant meets its burden in either of these ways, the plaintiff must then show with legal certainty that his claims are really less than $75,000. See id. at 1411-12.
In ANPAC, the Fifth Circuit identified the following circumstances in which the removing party fails to satisfy its burden of showing that removal is appropriate:
(1) the complaint did not specify an amount of damages, and it was not otherwise facially apparent that the damages sought or incurred were likely above [$75,000]; (2) the defendants offered only a conclusory statement in their notice of removal that was not based on direct knowledge about the plaintiff's claims; and (3) the plaintiff timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present.988 F.2d at 566. After reviewing the complaint, the notice of removal, and the parties' briefs, this Court concludes that defendant has failed to satisfy its burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75,000.
Because the complaint does not allege a specific amount of damages, defendant must prove an amount in controversy in excess of $75,000. The Court first looks to the face of the complaint to determine whether the amount in controversy is facially apparent. The petition describes plaintiff's injuries as "including, but not limited to, fractured cheek bones; a fractured jaw; broken teeth; severe head injuries; severe injuries to both shoulders, both arms, and both hands; severe neck injuries; and severe facial abrasions, lacerations and contusions." (Pl.'s Compl. ¶ V.) Plaintiff also alleges that the defendant is liable for "physical pain and suffering, mental anguish, permanent disability, past, present, and future medical expenses, past, present, and future loss of income, loss of earnings capacity, loss of enjoyment of life and loss of consortium, as well as any other damages shown at time of trial." ( Id.) Plaintiff does not, however, allege that his injuries required surgery; he mentions an ambulance but does not aver any period of hospitalization. Moreover, the Court finds no indication in the record that plaintiff requested a trial by jury in state court, which requires the claim to be for at least $50,000. See LA. CODE CIV. PROC. art. 1732(1). Finally, plaintiff's allegation of permanent disability is not sufficient to confer federal removal jurisdiction. See Palmer v. Wal-Mart Stores, Inc., 1996 U.S. Dist. LEXIS 741, 1996 WL 20862, at *3-4 (E.D. La. Jan. 17, 1996) (granting plaintiff's motion to remand even when plaintiff alleged that she sustained severe and possibly permanent injuries, because her allegations were "fairly vanilla'" and did not reveal the extent of her injuries)
Defendant cites two cases involving purportedly similar injuries and damages claims in which removal was upheld. See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000); James v. Home Depot U.S.A., Inc., 2002 U.S. Dist. LEXIS 12230 (E.D. La. 2002). These cases are distinguishable, however. Significantly, Gebbia involved a claim for disfigurement in addition to injuries to plaintiff's right wrist, left knee and patella, and upper and lower back. See Gebbia, 233 F.3d at 883; see also Jacob v. Greyhound Lines, Inc., 2002 U.S. Dist. LEXIS 20125, *10 (E.D. La. 2002) (distinguishing Gebbia on the basis of the plaintiff's disfigurement claim); Touchet v. Union Oil Company of California, 2002 WL 465167, *2 (E.D. La. 2002) (finding allegation of disfigurement in Gebbia to be one of a few distinguishing factors). The court in James, on the other hand, cited Gebbia in finding that the amount in controversy was facially apparent in plaintiff's complaint, which alleged serious injuries to plaintiff's left lower extremity and back, but did not distinguish Gebbia based on a disfigurement claim. Defendant Marriott fails to point out, however, that the James court expressly noted that the defendant also submitted summary judgment-type evidence to shoulder its burden, and that plaintiff offered no contradictory evidence, nor stipulated or even asserted that his damages did not exceed $75,000. James, 2002 U.S. Dist. LEXIS 12230 at *4-7 As is discussed below, these critical factors lending support to removal are not present in this case.
The Court today finds that plaintiff's alleged injuries, while described in more detail than typical "plain vanilla" cases, are less serious than in Gebbia and other cases in which removal has been upheld. See, e.g., Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (affirming removal when complaint contained claims for property damage, travel expenses, an emergency ambulance trip, a six-day stay in a hospital, pain and suffering, humiliation, and temporary inability to do housework); Taylor v. Murphy et al., 2000 U.S. Dist. LEXIS 10885, *3-5 (E.D. La. 2000) (finding defendants met their burden when complaint alleged severe injuries to muscles, ligaments, tendons, blood vessels, nerves and other soft structures of the cervical, lumbar, and thoracic regions of the spine and nervous system and psyche; aggravation of prior existing non-debilitating predispositions; handicap in normal activities; mental and emotional distress; and medical expenses, and when plaintiff did not clarify amount in controversy or provide stipulation or evidence). To the contrary, the Court finds the facts of this case more similar to Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851 (5th Cir. 1999), in which the court did not find the amount in controversy to be facially apparent when plaintiff claimed an injured shoulder, bruises, abrasions, unspecified medical expenses, and loss of consortium. In view of these cases, the Court finds that it is not facially apparent that plaintiff's claims exceed $75,000.
Because the defendant has not satisfied the facially apparent test, the Court considers whether the defendant submitted "summary-judgment-type evidence" to establish the amount in controversy. Here, as in ANPAC, defendant has submitted no evidence of the true value of plaintiff's claims, but merely averred in its petition for removal and brief that the amount in controversy exceeds $75,000 by reference to plaintiff's enumerated claims. See ANPAC, 988 F.2d at 565. The defendant has failed to set forth specific facts such as an affidavit, medical bills, or income statements to support its allegation that the jurisdictional amount exceeds $75,000. Accordingly, the Court finds that the defendant has not satisfied its burden of showing by a preponderance of the evidence that more than $75,000 was in controversy at the time of removal.
Even if the Court found that defendant satisfied its burden, plaintiff has provided contrary evidence and a stipulation to show with legal certainty that his claims do not exceed $75,000. First, plaintiff's counsel stipulates in the motion to remand that plaintiff's damages do not exceed $75,000 and further waives plaintiff's right to recover any sum in excess of $75,000. (See Pl.'s Stipulation, attached to Pl.'s Mot. to Remand.) This stipulation is not a sworn affidavit. The Fifth Circuit has held, however, that while a plaintiff may not defeat removal by changing her demand after the removal notice has been filed, post-removal stipulations may be used to clarify the amount for the first time. See ANPAC, 988 F.2d at 565; see also Domangue v. Commodore Cruise Line, Ltd., 1998 U.S. Dist. LEXIS 5990, 1998 WL 205429 (E.D. La. 1998). "A stipulation like plaintiff's, which is not a sworn affidavit . . . is not binding, however, . . . the court may assess jurisdiction with reference to all the evidence." Domangue, 1998 WL 205429 at *4 Courts have expressly noted the usefulness of such a stipulation. See James, 2002 U.S. Dist. LEXIS 12230 at *4-7; Taylor, 2000 U.S. Dist. LEXIS 10885 at *3-5
Further, plaintiff filed a reply to defendant's opposition, attaching detailed evidence of plaintiff's medical records and billing statements after his injuries took place. (See P1.' s Reply Nem., Ex. A.) Like stipulations, "evidence such as medical records shall be considered when offered to clarify the allegations made at the time of removal." Arcement v. Metabolife Int'l, Inc., 2002 WL 31246763, *1 (E.D. La. 2002) (citing Gebbia, 233 F.3d at 883). The exact amount of plaintiff's medical expenses is difficult to ascertain from these records; nonetheless, the evidence reflects an aggregate amount far below $75,000, perhaps as low as $1,000. Plaintiff was taken to Charity Hospital on the night of the incident, received stitches to his head, was x-rayed, and left the next day. He saw another physician several days later, who reported no broken bones, soft tissue injuries, and two broken teeth. The doctor never saw plaintiff again. (See Pl.'s Reply Mem., Ex. A.) While plaintiff's complaint also seeks damages for physical pain and suffering, mental anguish, permanent disability, past, present, and future loss of income, loss of earnings capacity, loss of enjoyment of life and loss of consortium, and any other damages shown at time of trial, plaintiff's evidence and stipulation render it reasonable that the amount in controversy does not exceed $75,000.
Thus, after considering all the evidence, the Court finds that defendant has failed to prove by a preponderance of the evidence that plaintiff's total damages more likely than not exceed the jurisdictional amount. Accordingly, this Court does not have subject matter jurisdiction.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff's motion to remand.