Opinion
Civil Action No: 02-0348, Section: "R" (1)
April 11, 2002
ORDER AND REASONS
Before the Court is plaintiff's motion to remand. For the following reasons, the Court denies the motion.
I. Background
Gwendolyn "Sue" Miller sued American General Financial Services and three of its employees under Louisiana's Disability Discrimination Statute, Louisiana Revised Statute § 23:222, et seq., and Louisiana's Human Rights Act, Louisiana Revised Statute § 51:2231, et seq., in the Twenty-Fourth judicial District for the Parish of Jefferson, Louisiana. American General is an Indiana corporation with its principal place of business in Indiana. The three individually named defendants are citizens of Indiana. Plaintiff worked for American General in its Metairie, Louisiana office from about 1975 until her termination on January 12, 2001. she alleges that defendants mistakenly believed that a temporary illness rendered her disabled. She further asserts that defendants fired her in retaliation for her complaining that defendant threatened not to reinstate her after she took a temporary leave because of her "disability." Plaintiff's salary and benefits in her former job with American General totalled about $25,000 per year. She asserts that at the time of the filing of her petition she was unable to find suitable employment. She further alleges that in addition to economic damages, she suffered mental damage and damage to her reputation as a good and effective employee. She seeks back pay, front pay, reinstatement, general damages, and statutory attorney's fees. As directed by Article 893 of the Louisiana Code of Civil Procedure, plaintiff did not plead a specific damage amount in her petition, but she nevertheless specifically alleges that the amount in controversy does not exceed $75,000. See LA. CODE CIV. PROC. art. 893(A)(1).
The Court notes that defendant's correct name is "American General Finance Management Corporation." See Notice of Removal at § 1.
Defendant removed this case to federal court on February 7, 2002, based on diversity jurisdiction. Plaintiff filed this motion to remand on March 5, 2002. plaintiff argues that this Court lacks jurisdiction because her claims do not exceed the jurisdictional requirement.
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). Here, defendant asserts that the Court has federal subject matter jurisdiction on the basis of diversity of citizenship and an amount in controversy in excess of $75,000. See 28 U.S.C. § 1441 (b); 1332. plaintiff states that the jurisdictional amount is not met.
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 must be examined as of the time of removal. See Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Columbia ("ANPAC") v. Dow Quimica de Columbia, 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 (1999). Furthermore, the district court must strictly construe removal jurisdiction. See Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988) (citing Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 872 (1941)) (additional citations omitted).
When the plaintiff does not seek a specific amount of damages but alleges that damages will not exceed the federal jurisdictional threshold, the court must treat the claim as one for a specific amount of damages. See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995); Bourg v. Fireman's Fund Ins. Co., 1999 WL 335636, at *1 (E.D. La. 1999). Accordingly, plaintiff's claim remains presumptively below the threshold "unless the defendant can show by a preponderance of the evidence that the amount in controversy is greater than the jurisdictional amount." Id. at 1412. A defendant makes this showing when it is facially apparent that plaintiff's claims are likely to exceed $75,000. See Allen, 63 F.3d at 1335. In the alternative, the defendant can submit "summary judgment-type" evidence to establish the actual amount in controversy. See id.; De Aguilar, 47 F.3d at 1412. If the defendant satisfies its burden, plaintiff must establish to a "legal certainty" that the claim is really for less than $75,000. See De Aguilar, 47 F.3d at 1412.
The Court first looks to the face of plaintiff's state court petition. Plaintiff seeks back pay, reinstatement, front pay, general damages, and statutory attorney's fees. See Pl.'s Cmplt. at Prayer for Recovery. Additionally, plaintiff alleges that her claims are greater than $50,000 but do not exceed $75,000 (see id.), in order to establish "the lack of jurisdiction of federal courts due to insufficiency of damages," as expressly permitted by Louisiana law. See LA. CODE Civ. PROC. ANN. art. 893(a). Courts in this district recognize that a plaintiff's invocation of the Louisiana Civil Code provision permitting the plaintiff to plead damages below the jurisdictional amount weighs against finding it facially apparent that the amount in controversy exceeds $75,000. See Diaz v. EZ Serve Convenience Stores, Inc., 1998 WL 101693, *2 (E.D. La. 1998) (denying remand but noting that plaintiff could have alleged that claim did not exceed federal jurisdictional threshold but did not); Smith v. Wal-Mart Stores, Inc., 1995 WL 716773, *2 (E.D. La. 1995) (same); Frisard v. BellSouth Telecommunications, Inc., 898 F. Supp. 369 (E.D. La. 1995) (same). See also St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294, 58 S.Ct. 586, 593 (1938) (plaintiff may avoid federal diversity jurisdiction by pleading state court damages below amount necessary to invoke diversity jurisdiction); Allen, 63 F.3d at 1335 ("Of course, if a plaintiff pleads damages less than the jurisdiction amount, he generally can bar a defendant from removal.").
Defendants contend that the combination of an award for back pay, front pay, emotional damages, and attorney's fees as alleged in plaintiff's petition, makes it facially apparent that the plaintiff's demand exceeds the jurisdictional amount. The Court agrees. An award of back pay, given plaintiff's assertion that her yearly salary and benefits were $25,000 per year and that she has been unable to find suitable replacement employment despite her best efforts, would likely total about $45,000 by the time the case goes to trial given that plaintiff was fired in January 2001. See Pl.'s Pet. at Prayer for Relief. Further, plaintiff's statement in her motion to remand that she has since found a replacement job that would mitigate her damages does not affect the Court's consideration of the jurisdictional amount at the time of removal. See St. Paul Mercury, 303 U.S. at 292, 58 5. Ct. at 592 (holding that post-removal events cannot deprive a court of jurisdiction once it has attached).
Plaintiff's petition includes a demand for front pay. See Pl.'s Pet. at Prayer for Relief. Front pay is an equitable remedy awarded to compensate the plaintiff for lost future wages and benefits. See Shirley v. Chrysler First, Inc., 970 F.2d 39, 44 (5th Cir. 1992). Louisiana's employment discrimination statute authorizes the courts to award front pay under the appropriate circumstances. LA. REV. STAT. § 23:303(A). The district court often calculates front pay by deducting the amount of the plaintiff's current salary from her previous one. See Romano v. Citizens Utilities Co., 1999 WL 191457, *4 (E.D. La. 1999) (citing Deloach v. Delchamps, Inc., 897 F.2d 815, 823 (5th Cir. 1990)). The length of front pay awarded under Louisiana's employment discrimination statutes varies from case-to-case. For example, some courts have awarded up to five years of front pay (see Deloach, 897 F.2d at 822 (claim brought under Louisiana's age discrimination in employment act), while others have awarded as little as eighteen months. See Romano, 1999 WL 191457 at *4 (claim brought under Louisiana's employment discrimination statute and human rights act). Here, plaintiff's previous salary with American General was $25,000. See Pl.'s Pet. at Prayer for Relief. She further asserts that she has been unable to find suitable employment despite her best efforts. See id. Therefore, on the face of plaintiff's petition, it is likely that plaintiff's claim for front pay will exceed at least $37,500 (her previous monthly salary multiplied by 18 months).
Attorney's fees are included in determining the jurisdictional amount in this case because the statutes under which plaintiff brings this lawsuit authorize the recovery of attorney's fees. See Foret v. Southern Farm Bureau Life Ins. Co., 918 F.2d 534, 537 (5th Cir. 1991) (citing Graham v. Henegar, 640 F.2d 732, 735 (5th Cir. 1981)); see also Veal v. American Telephone and Telegraph Corp., 1999 WL 253530, *1 (E.D. La. 1999). The Court's review of cases involving Louisiana's employment discrimination statute and unlawful termination claims revealed awards ranging from about $4,500 to $15,000. See, e.g., Alphonse v. Omni Hotels Management, 643 So.2d 836 (La.Ct.App. 4th Cir. 1994) ($16,500 awarded in attorney's fees in employment discrimination case); Allen v. Payne Keller Co., Inc., 710 So.2d 1138, 1146 (La.Ct.App. 1st Cir. 1998) ($4500 awarded in attorney's fees for employer's unlawful termination); Smith v. Holloway Sportswear, Inc., 704 So.2d 420, 423-24 (La.Ct.App. 3d Cir. 1997) ($3500 found insufficient award of attorney's fees and amount increased to $7500 on appeal; attorney worked on retaliatory discharge case for about seven years); Craven v. Universal Life Insurance Co., 670 So.2d 1358, 1371 (La.Ct.App. 3d Cir. 1996) ($10,000 awarded in attorney's fees in workplace discrimination case; attorney represented plaintiff for eight years in case involving novel issues of law).
Section 23:303 of the Louisiana Employment Discrimination laws provides in pertinent part:
A plaintiff who has a cause of action against an employer, employment agency, or labor organization for a violation of this Chapter may file a suit in a district court seeking compensatory damages, back pay, benefits, reinstatement, or if appropriate, front pay, reasonable attorney fees, and court costs. LA. REV. STAT. § 23:303(A).
Section 51:2262 of the Louisiana Human Rights Act provides in pertinent part:
Any person deeming himself injured by any alleged violation of the provisions of this Chapter shall have a civil cause of action in district court to . . . recover the actual damages sustained by him, together with the costs of court and a reasonable attorney fee for his attorney of record, all of which shall be in addition to any other remedies contained in this Chapter. LA. REV. STAT. § 51:2264.
Taking all of these factors into consideration, even without addressing the likely amount of plaintiff's claim for damages to her self-worth and reputation as an employee, the Court finds that it is facially apparent from plaintiff's petition that the amount in controversy exceeds $75,000. Having determined that defendants satisfied their burden to prove by a preponderance of the evidence that the amount in controversy is likely to exceed the jurisdictional amount, the Court finds that plaintiff failed to satisfy her burden to establish to a legal certainty that her claims are for less than $75,000. See De Aguilar, 47 F.3d at 1412.
III. Conclusion
For the foregoing reasons, the Court DENIES plaintiff's motion to remand.