Opinion
Civil Action No. 04-1386, Section "T" (3).
January 5, 2005
ORDER AND REASONS
This cause came for hearing on November 17, 2004, upon the motion of plaintiffs TIMOTHY HUMMEL and THE MUSHROOM, INC. (Doc. 6) to remand the case to state court. Oral argument was not entertained by the Court; therefore, the matter was taken under submission on the briefs only. The Court, having studied the record, the legal memoranda submitted by the parties, as well as the applicable law and jurisprudence, is now fully advised in the premises and ready to rule.
I. BACKGROUND:
This suit arises out of an automobile accident that occurred in Florida on April 12, 2003. Plaintiff, Timothy Hummel ("Hummel") was driving a vehicle which was towing a trailer. The operator of the other vehicle is not a party to this suit. Hummel filed suit in 24th Judicial District Court, Parish of Jefferson, State of Louisiana, against State Farm Mutual Automobile Insurance Company ("State Farm"), in its capacity as his uninsured/underinsured motorist insurer on April 2, 2004. Defendant State Farm removed this matter to this Court based on diversity under 28 U.S.C. 1332, claiming that the amount in controversy exceeds $75,000.00.
II. LAW AND ANALYSIS
The removing party bears the burden of establishing that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.), cert. denied, 516 U.S. 865, 116 S.Ct. 180, L.Ed.2d 119 (1995). Further, "unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith." Id.
"When the plaintiff's complaint does not allege a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds [the jurisdictional amount]." De Aguilar, 47 F.3d at 1409, quoting De Aguilar v. Boeing Co. ("De Aguilar I"), 11 F.3d 55, 58 (5th Cir. 1993). However, the Fifth Circuit stated that the preponderance burden forces the defendant to do more than point to state law that might allow the plaintiff to recover more than what is pled. Id.
Jurisdictional facts that support removal must be judged at the time of removal. Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (1995). Moreover, once diversity jurisdiction has attached, it cannot be subsequently divested by the voluntary reduction of the amount in controversy below jurisdiction. 28 U.S.C. § 1447(c); St. Paul Indemnity Co. v. Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Reisman v. New Hampshire Fire Ins. Co., 312 F.2d 17 (5th Cir. 1963); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256 (5th Cir. 1995). Any evidence submitted after the complaint has been filed is allowable only if relevant to the time of removal. Asociacion Nacional de Pescadores v. Dow Quimica de Colombis S.A., 988 F.2d 559 (5th Cir. 1993), cert. denied, 510 U.S. 1041, 114 S.Ct. 685, 126 L.Ed.2d 653 (1994);De Aguilar v. Boeing Co., 47 F.3d 1404 (5th Cir. 1995).
Additionally, "a unilateral, post-removal stipulation does not deprive the removal court of jurisdiction." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed.2d 845 (1938); Candies v. Monsanto Co., 1998 WL 57055 (E.D.La.). Nevertheless, a post-removal stipulation or affidavit may be successful in effectuating a remand in cases in which such is used to clarify an ambiguous petition, rather than reduce the initial amount in controversy after removal. See Marcel v. Pool Co., 5 F.3d 81, 85 (5th Cir. 1993); ANPAC, 988 F.2d at 565.
In Associacion Nacional de Pescadores a Pequena Escala o Artesanales de Columbia ("ANPAC") v. Dow Quimica de Colombia S.A., the Court of Appeals for the Fifth Circuit specifically identified three circumstances in which a moving party will fail to satisfy its burden of proving that removal is warranted. See ANPAC, 988 F.2d 559, (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, 199 S.Ct. 1563 (1999). The Fifth Circuit explained that:
[a]t least where the following circumstances are present, the [removing party's] burden has not been met: (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 plaintiffs' claims; and (3) the plaintiffs timely contested removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present.Id.
If such is the case, then removal is improper. However, it is important to note that "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
If a defendant is successful in proving that the amount in controversy exceeds the jurisdictional limit, the burden shifts to the plaintiff to show with legal certainty that he or she will not be able to recover more than $75,000. See De Aguilar, 47 F.3d at 1411-12. If a plaintiff is able to do so, then the case will be remanded to state court. See id. However, once diversity jurisdiction has attached, it cannot be subsequently divested by the voluntary reduction of the amount below the jurisdictional limit. 28 U.S.C. § 1447(c); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256 (5th Cir. 1995). Furthermore, any evidence submitted after the complaint has been filed is allowable only if relevant to the time of removal. See ANPAC, 988 F.2d at 565.
The prevailing law in this area was summarized by the Fifth Circuit in the recent case of Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999), as follows:
Several Fifth Circuit decisions have established a clear analytical framework for resolving disputes concerning the amount in controversy. Plaintiffs in Louisiana state courts, by law, may not specify the numerical value of the damage claim. La. Code Civ. P. art. 893. In such a situation, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993). 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." Allen v. R H Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) (emphasis in original).Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
For the plaintiff to be successful, he must prove that his motion is not simply a voluntary reduction in the amount of the claim to defeat jurisdiction, but a stipulation to clarify an ambiguous petition. See Marcel v. Pool Co., 5 F.3d 81, 85 (5th Cir. 1993). (Emphasis added). Post-removal affidavits may be considered to determine the amount in controversy at the time of removal only if the basis for jurisdiction is ambiguous at the time of removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000). While the plaintiff's Motion to Remand did add clarity to the injuries listed on the Amended Petition, the Amended Petition was not necessarily ambiguous in the first place, and ambiguity is a necessary component in order to remand.
Another factor for the court to consider is the plaintiff's decision not to request a trial by jury. This factor sits favorably with the plaintiff's Motion to Remand, but is only one factor and not determinative. Embry v. Southern County Mutual Ins. Co., 2000 U.S. Dist. LEXIS 1206 at *11 (E.D. La. 2000) (Sear, J.) (granting plaintiff's motion to remand in car accident case where no surgery or hospitalization resulted from the injuries).
In the present case, because the original removal was proper and the Amended Petition is not ambiguous, the plaintiff has failed to meet his burden necessary to have this matter remanded.
Accordingly,IT IS ORDERED that the Motion to Remand to state court, filed on behalf of the Plaintiffs, Timothy Hummel The Mushroom, Inc., is hereby DENIED.