Opinion
CIVIL ACTION NO: 01-3206 SECTION: "R"(4).
January 14, 2002
ORDER AND REASONS
Before the Court is plaintiff's motion to remand. For the following reasons, the Court grants the motion.
I. Background
Dorinda Trahan sued Chevron USA, Inc. in state court for injuries she sustained after she slipped and fell on coffee on the floor of defendant's offshore platform. Chevron is a Pennsylvania corporation with its principal place of business in California. As a result of the fall, plaintiff asserts that she suffered an acute cervical and lutribosacral strain, a contusion of the head, a cerebral concussion, and a strain of the right shoulder. She seeks to recover past, present and future lost wages; past, present and future medical expenses; pain and suffering; and emotional stress and strain. 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).
On October 2, 2001, plaintiff's counsel sent defendant a letter stating that plaintiff would require knee surgery. See Def.'s Notice of Removal, Ex. B. In response to plaintiff's letter, defendant removed this case to federal court on October 23, 2001, based on diversity jurisdiction. Plaintiff filed this motion to remand on November 1, 2001. Plaintiff argues that this Court lacks jurisdiction because defendant's notice of removal is untimely and because she has indicated in her complaint that her claims do not exceed $75,000.
The letter states in pertinent part:
My client needs knee surgery. This is why I have not given you a settlement demand. As soon as she has surgery, we will give you a demand.
II. Discussion
A. Timeliness of Removal
Plaintiff contends that defendant's notice of removal is untimely because it was not filed within thirty days of receipt of plaintiff's pleading. See Pl.'s Mot. to Remand at 2. "Removal statutes are to be construed strictly against removal and for remand and a failure to timely file a notice of removal is a defect that requires remand to state court." Delaney v. Viking Freight, Inc., 41 F. Supp.2d 672, 674 (E.D. Tex. 1999) (quoting Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996) (quotes omitted), and citing Royal v. State Farm Fire Cas. Co., 685 F.2d 124, 127 (5th Cir. 1982)). Under 28 U.S.C. § 1446, which sets forth the general procedure for removal, a determination of whether a defendant timely removed a case is essentially a two-step process. See Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir. 1992). First, if the case stated by the initial pleading is removable, a defendant has thirty days from receipt of the initial pleading to file a notice of removal. See 28 U.S.C. § 1446(b); Chapman, 969 F.2d at 161. Second, if the case stated by the initial pleading is not removable then
a notice of removal may be filed within thirty days after receipt by the defendant . . . of a copy of an amended pleading, motion or other paper from which it may first be ascertained that the case is one which is or has become removable. . . .Id. (emphasis added).
Defendant contends that the October 2 letter is "other paper" under Section 1446(b), and therefore, the notice of removal was timely because it was filed within thirty days of its receipt of the letter. In Addo v. Globe Life and Accident Insurance Co., the court held that the plaintiff's post-complaint demand letter indicating that she would seek damages exceeding the jurisdictional amount was an "other paper" under Section 1446(b). 230 F.3d 759, 762 (5th Cir. 2000) The Addo court noted that the majority of lower courts have held that a postcomplaint demand letter can be "other paper" under Section 1446(b). Id. at 761; see, e.g. Stramel v. GE Capital Small Business Finance Corp., 955 F. Supp. 65, 67 (E.D. Tex. 1997); Sunburst Bank v. Summit Acceptance Corp., 878 F. Supp. 77, 82 (S.D. Miss. 1992) ("This actual notice [that case can become removable] may be communicated in a formal or informal manner."); see also 14C Charles Alan Wright, et al., Federal Practice and Procedure § 3732 (1998) ("[C]orrespondence between the parties and their attorneys or between attorneys usually [is] accepted as [an] `other paper' . . . that initiate[s] a new thirty-day period for removability."). The Addo court also said that "other paper" must result from a voluntary act of the plaintiff that gives the defendant notice of the changed circumstances that support federal jurisdiction. 230 F.3d at 762.
Here, the letter at issue is a voluntary act by plaintiff's counsel and, because plaintiff's state court demand did not indicate that she sustained an injury to her knee as a result of the accident, the letter gave defendant notice of a changed circumstance that could affect removability. Accordingly, the Court finds that the notice is timely because defendant filed its notice of removal within thirty days of receipt of the letter. The issue remains whether the content of the letter makes this case removable.
B. Removal
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, 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 to recover for past, present and future lost wages; past, present and future medical expenses; pain and suffering; and emotional stress and strain. Additionally, plaintiff alleges that her claims do not exceed $75,000, 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 pleading of 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 1334 ("Of course, if a plaintiff pleads damages less than the jurisdiction amount, he generally can bar a defendant from removal.").
Besides alleging that her damages do not exceed $75,000, plaintiff claims that she suffered (1) an acute cervical and lumbosacral strain; (2) a contusion of the head; (3) a cerebral concussion; and (4) a stain of the right shoulder. Defendant implicitly concedes that it is not facially apparent from the state court petition that the demand meets the jurisdictional amount because if that were the case, defendant's notice of removal would be untimely. Defendant contends that the addition of the plaintiff's knee injury and related surgery, as indicated by plaintiff's October 2001 letter, makes it facially apparent that the plaintiff's demand exceeds the jurisdictional amount. The Court finds otherwise. The October 2001 letter did not request an amount of damages for the knee surgery or describe the nature of the injury or the surgery. Indeed, the letter did not even affirmatively claim that the knee injury resulted from the accident.
Defendant also relies a number of cases to assert that claims involving knee injuries and surgery generally exceed the jurisdictional amount. Upon review, the Court finds that all but one of these cases involve injuries more severe than the plaintiff has asserted so far. For example, in Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 800 (5th Cir. 2000), although plaintiff alleged injuries to her left knee and patella, she also made claims for permanent disability, which is absent from this case. 233 F.3d at 883; see also Williams v. Dargins, 1999 WL 163431, *3 (E.D. La. 1999) (not facially apparent that damage demand exceeds jurisdictional amount despite allegation of knee surgery). In Scott v. Rapides Parish Sch. Board, 732 So.2d 749 (La.Ct.App.), writ denied, 747 So.2d 22 (La. 1999), the plaintiff underwent exploratory knee surgery, but he also suffered from severe nerve damage to his leg, which made it impossible for him to lift his ankle or toes. 732 So.2d at 756. Therefore, the cases relied on by defendant do not amount to a preponderance of the evidence. Moreover, the Court finds no indication in the record that plaintiff asked for 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). For all of these reasons, this Court is devoid of jurisdiction and must remand this case to state court.
III. Conclusion
Plaintiff's motion to remand is GRANTED. This case is hereby remanded to the Civil District Court for the Parish of Orleans for further proceedings.