Opinion
CIVIL ACTION NO. 02-2883, SECTION "B" (1)
January 14, 2003
ORDER AND REASONS
Before the Court is Plaintiff's Motion to Remand; Alternatively, Plaintiff's Request For Jury Trial (Rec. Doc. No. 2). Plaintiff contends that the amount in controversy fails to meet the jurisdictional minimum for diversity jurisdiction. Defendants respond that it is facially apparent that the damages at issue rise to a level exceeding $75,000. This Court finds that Defendant has met its burden of establishing federal jurisdiction under 28 U.S.C. § 1332. For the reasons assigned below,
IT IS ORDERED that's Motion to Remand is DENIED.
BACKGROUND
On September 1, 1998, Plaintiff, Janetta Hampton, was hired by Defendant Smart Professional Photocopy Corp. as a copy representative. In March of 2001, she was promoted to administrative assistant in Defendant's head office in New Orleans. In July of 2001, a new regional director, Brett Williamson, a white male, was brought in. On September 5, 2001, Plaintiff discovered that she was pregnant and was told by her treating physician not to return to work before September 10, 2001. According to Plaintiff, upon her return, Plaintiff presented documentation from her physician to her employer explaining that she had a potentially dangerous case of cervicitis early in her pregnancy. Plaintiff was then advised that she would be terminated or demoted. Plaintiff declined the demotion, was terminated, and was replaced by a white female.
Plaintiff filed a claim for pregnancy discrimination and race discrimination in state court seeking remedy under Louisiana Revised statute 23:341, et seq and Louisiana Revised Statute 23:332, et seq. Defendant timely removed this case on September 18, 2002, on the grounds of diversity jurisdiction. In their notice of removal, Defendants asserted that Plaintiff's claims exceed $75,000.00. Plaintiff responds that Defendants have failed to satisfy their burden to prove the existence of federal jurisdiction, and points out that she stipulated in her complaint that her damages do not exceed $75,000.00. Plaintiff now seeks to remand.
DISCUSSION
The removing party bears the burden of establishing the existence of subject matter jurisdiction. See Asociacion Nacional de Pescadores a Pequena Escala O Artesananles de Columbia v. Dow Quimica de Columbia, S.A., 988 F.2d 559, 563 (5th Cir. 1993). [hereinafter "ANPAC"]. It is the recognized burden of the party invoking jurisdiction "both to allege with sufficient particularity the facts creating jurisdiction, in view of the nature of the right asserted, and, if appropriately challenged, or if the inquiry be made by the court on its own motion, to support the allegation." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 287, n. 10 (1938); see also Diefenthal c. Civil Aeronautics Board, 681 F.2d 1039 (5th Cir. 1982).
Louisiana law prohibits a plaintiff from pleading a specific amount of monetary damages. See La. Code Civ. Proc. art. 893. When a 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 $75,000.00. 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 $75,000.00. See Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). In the alternative, the defendant can set out the facts in controversy, preferably in the removal petition, but sometimes by affidavit or stipulation, that support a finding of the requisite amount. Id. The defendant must submit "summary-judgment type evidence" to establish that the actual amount in controversy exceeds $75,000.00. De Aguilar, 47 F.3d at 1412. Bare assertions by the removing party are insufficient to invest a federal court with jurisdiction. See ANPAC, 988 F.2d at 566.
In ANPAC, the Fifth Circuit further identified the following circumstances in which a removing party would fail to satisfy its burden of showing that removal is appropriate:
(1) that 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 claim; and
(3) the plaintiff timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present.ANPAC, 988 F.2D at 566.
After reviewing the complaint, the notice of removal, the parties' memoranda and attached exhibits, this Court concludes that Defendant has satisfied its burden of proving that it is facially apparent that the amount in controversy exceeds $75,000.00. The Court first looks to the face of the complaint. In this case, Plaintiff stipulates that all damages, including attorney's fees but excluding interests and costs, do not exceed $75,000.00. However, the plaintiff is still the master of the claim, and the inquiry does not end simply because the plaintiff makes such a stipulation regarding the threshold amount for removal. See Pendleton v. Parke-Davis, 2000 WL 1808500, *4 (E.D.La. 12/7/2000) ( citing De Aguilar 47 F.3d at 1412)). "The face of the Plaintiff's pleading will not control if made in bad faith." Id. Therefore, a defendant can still seek removal to federal court despite a plaintiff's stipulation as to the amount in controversy. Id. To do so, a defendant must demonstrate by preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount.
As evidence of the true value of Plaintiff's claim, Defendant points out that Plaintiff seeks general compensatory damages, loss of professional reputation, back pay including benefits, front pay including benefits, other damages and attorneys fees. Plaintiff submits a statement which reasserts the stipulation that her damages do not exceed $75,000.00. See Sworn Statement of Janetta Hampton, Exhibit A to Motion to Remand. However, Plaintiff has not timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present. Whether unintentionally or not, the statement submitted by the Plaintiff is not signed. This insufficiency, being more than just technical and insubstantial, in effect, obviates the stipulation that her award would not exceed $75,000. Because the statement is not a signed statement, it does not amount to a declaration under oath nor does it assist in resolving the issue of jurisdictional amount. See Moore v. J.C. Penney Co., Inc., 2000 WL 222162, *3 (E.D.La. Feb. 22, 2000). "A stipulation like plaintiff's, which is not a sworn affidavit and falls short of stipulating that the claimant will not seek more than the jurisdictional amount, is not binding." Id. Based on the above analysis, the Court refuses to consider the statement offered. Furthermore, in her complaint, Plaintiff alleges "other damages that will be proven at trial on this matter." For the above reasons, this Court finds that ills facially apparent that the damages sought are likely above $75,000. Accordingly, the motion to remand is denied.