Cooper v. Icon Health & Fitness, Inc. et al

Filing 16

ORDER & REASONS denying 12 Motion to Remand to State Court. Signed by Judge Ivan L.R. Lemelle. (lag, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
OSWALD COOPER
VERSUS
ICON HEALTH AND FITNESS, ET. AL.

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CIVIL ACTION
NO. 11-152
SECTION “B”(5)

ORDER AND REASONS
Plaintiff’s Motion to Remand (Rec. Doc. No. 12), opposed at
Rec. Doc. No. 14, is hereby DENIED.
On December 6, 2010, Oswald Cooper (“Plaintiff”) filed suit
in the 41st

Judicial District Court for the Parish of Orleans

against

Health

ICON

and

Fitness,

Inc.

(“ICON”)

and

Wal-Mart

Stores, Inc. (“Wal-Mart”)(collectively “Defendants”).1 (Rec. Doc.
No. 1). Plaintiff seeks damages for injuries allegedly sustained
while using the Gold’s Gym Inversion Table he purchased from WalMart.

(Rec. Doc. No. 1-1 at 2).

Plaintiff alleges that on

December 22, 2009 he was using his Gold’s Gym Inversion Table when
suddenly and without warning the equipment collapsed, causing
injuries.

(Rec. Doc. No. 1-1 at 2). Specifically, Plaintiff seeks

to recover: “past, present, and future medical expenses; past,
present, and future mental and physical pain and suffering; past,
present, and future loss of enjoyment of life; lost wages; and
1

In the original petition, Wal-Mart Louisiana, LLC was incorrectly
referred to as Wal-Mart Stores, Inc. (Rec. Doc. No. 7). On February 7, 2011
party Wal-Mart Louisiana, LLC was added and Wal-Mart Stores, Inc. was terminated.
(Rec. Doc. No. 7).

1

residual disability.” (Rec. Doc. No. 1-1 at 4).
On December 14, 2010 the Clerk of Court in the state court
action issued a Long-Arm Summons directed to ICON.

(Rec. Doc. No.

1 at 2). Defendants allege that ICON received and was thus served
with the petition and Long-Arm Summons via certified mail on
December 27, 2010, however; the green certified mail receipt card
was not dated.

(Rec. Doc. Nos. 1 at 2;12-1 at 2).

On January 24,

2011, Defendants filed their Notice of Removal, alleging that
diversity jurisdiction exists in accordance with 28 U.S.C. §1332.
(Rec. Doc. No. 1 at 2). Plaintiff does not dispute that complete
diversity exists under 28 U.S.C. §1332, as the litigants are
citizens of different states.

(Rec. Doc. No. 1 at 2).

Law and Analysis
I.

Standard of Review
Motions to remand to state court are governed by 28 U.S.C.

§1447 (c), which provides that “[i]f at any time before the final
judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”

Cohen v. Safeco Ins.

Co., No. 08-707, 2008 WL 1730537, at *1 (E.D. La. Apr. 9, 2008).
The removing party bears the burden of showing that federal
jurisdiction exists and therefore that removal was proper.

Allen

v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). In
assessing whether removal is appropriate, the Court is guided by
the principle, grounded in notions of comity and the recognition
2

that federal courts are courts of limited jurisdiction, that
removal statutes should be strictly construed.

See, e.g., Manguno

v. Prudential Pro. & Cas. Ins. Co., 276 F. 3d 720, 723 (5th Cir.
2002).

A case with diverse parties may be removed “unless it

‘appear[s] to a legal certainty that the claim is really for less
than

the

jurisdictional

amount.’”

Asociacion

Nacional

de

Pescadores a Pequena Escala o Artesnales de Colombia v. Dow
Quimica de Colombia S.A. (“ANPAC”), 988 F.2d 559, 564 (5th Cir.
1993) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283, 289 (1938); see also Marcel v. Pool Co., 5 F.3d 81, 84
(5th Cir. 1993).
II.

Timeliness of Removal
Plaintiff alleges that defendants failed to establish that

removal

was

timely

as

required

under

28

U.S.C.

§1446(b).2

Defendants allege that ICON received and thus was served with the
petition and Long-Arm Summons via certified mail on December 27,
2010.

(Rec. Doc. No. 1 at 2).

Defendants contend that the state

court record contained no service returns because Plaintiff failed
to file affidavits of service as required under the Louisiana
Long-Arm Statute.

(Rec. Doc. No. 14 at 2).

2

Title 28 U.S.C. § 1446(b) states: “The notice of removal of a civil
action or proceeding shall be filed within thirty days after the receipt by the
defendant, through service or otherwise, of a copy of the initial pleading
setting forth the claim for relief upon which such action or proceeding is based,
or within thirty days after the service of summons upon the defendant if such
initial pleading has then been filed in court and is not required to be served
on the defendant, whichever period is shorter.

3

Under 28 U.S.C. § 1446(b), a notice of removal must be filed
within

30

days

of

the

defendant

being

served

or

otherwise

receiving the copy of the first pleading which is removable.

When

a plaintiff’s initial complaint is removable, the time for removal
begins

to

run

when

the

first

defendant

has

been

served.

Washington v. Jefferson Twp. Local Sch. Dist. Sch. Bd., 3:04CV336,
2005 WL 2277419 (S.D. Ohio 2005) (citing Murphy Bros., Inc. v.
Mitchell Pipe Stringing, Inc., 526 U.S. 344, 353-54, 119 S.Ct.
1322, 143 L.Ed.2d 448 (1999)).

The Fifth Circuit has held that

any ambiguities are construed against removal because the removal
statute should be strictly construed in favor of remand.

Maguno,

276 F.3d at 723, (citing Acuna v. Brown & Root, Inc., 200 F.3d
225, 229 (5th Cir. 2000)).
Since the Notice of Removal was filed January 24, 2011, the
question becomes whether Defendants have met their burden of
showing that the first defendant was served no more than 30 days
earlier, i.e., on December 25, 2010 or later.

In Washington v.

Jefferson Tp. Local School Dist. School Bd., a similar case in
which the green certified mail receipt cards were undated, the
court held that the burden was on the defendants to prove they
filed a timely Notice of Removal.

Washington, 2005 WL 2277419.

The court also noted that if the defendants wanted to avoid an
extensive investigation, they could have ensured the green cards
were dated or even recorded the date upon which it was served.
4

Id.
Here, Defendants certified the pertinent date of receipt and
there is nothing shown to effectively rebut that certification.
Removal was timely.
III.

Amount in Controversy
Louisiana law ordinarily does not permit plaintiffs to plead

a specific amount of monetary damages. See La. C.C.P. Art. 893
(A)(1).3

A party will receive any relief to which he is entitled,

even if the party has not demanded it in his pleadings.

La.

C.C.P. art. 862.4 Because there is a concern that a litigant could
plead less than the jurisdictional amount required for federal
jurisdiction in order to avoid removal but then subsequently prove
and be awarded damages greater than the jurisdictional amount in
state court, this Court must look to the “jurisdictional facts
3

Louisiana Code of Civil Procedure Article 893 (A)(1) provides:
No specific monetary amount of damages shall be
included in the allegations or prayer for relief
of any original, amended, or incidental demand.
The prayer for relief shall be for such damages
as are reasonable in the premises except that if
a specific amount of damages is necessary to
establish the jurisdiction in the court, the
right to a jury trial, the lack of jurisdiction
of federal courts due to insufficiency of
damages, or for other purposes, a general
allegation that the claim exceeds or is less than
the
requisite
amount
is
required.
By
interrogatory, an opposing party may seek
specification of the amount sought as damages,
and the response may thereafter be supplemented
as appropriate.
(emphasis added.)

4

Louisiana Code of Civil Procedure Article 862 provides in part that
“...a final judgment shall grant the relief to which the party in whose favor it
is rendered is entitled, even if the party has not demanded such relief in his
pleadings and the latter contain no prayer for general and equitable relief.”

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that support removal . . . at the time of removal.”

See Gebbia

v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000).
Because Louisiana law prohibits plaintiffs from specifying
numerical value of claimed damages in a civil suit, defendants
removing on diversity grounds must prove by a preponderance of the
evidence that the amount in controversy exceeds $75,000.
U.S.C. §1332, 1441; La. C.C.P. Art. 893.

Id.; 28

A defendant may satisfy

this burden in one of two ways: (1) by demonstrating that it is
“facially
exceeds

apparent”

$75,000,

or

from
(2)

the
by

petition
setting

that

forth

the
the

claim
facts

likely
in

the

controversy preferably in the removal petition, sometimes by
affidavit, that support a finding of the requisite amount.

Allen,

63 F.3d at 1335. The defendant must do more than point to a state
law

that

might

allow

plaintiff

to

recover

more

than

the

jurisdictional minimum; the defendant must submit evidence that
establishes that the actual amount in controversy exceeds $75,000.
See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
If it is not “facially apparent” from the complaint that the
claim(s) exceed $75,000, the Court “may rely on ‘summary-judgmenttype’ evidence to ascertain the amount in controversy at the time
of

removal.

Allen,

63

F.3d

at

1336.

Importantly,

the

jurisdictional facts must be judged as of the time the complaint
is filed; subsequent events cannot serve to deprive the court of
jurisdiction once it has attached.”
6

St. Paul Reinsurance Co.,

Ltd.

v.

Greenberg,

(footnotes omitted).
the

time

of

134

F.3d

1250,

1253-54

(5th

Cir.

1998)

If the amount in controversy is ambiguous at

removal,

the

Court

may

consider

a

post-removal

stipulation or affidavit to determine the amount in controversy at
the date of removal.

See Gebbia, 233 F.3d at 883; Asociacion

Nacional de Pescadores a Pequena Escala o Artesanales de Colombia
(“ANPAC”) v. Dow Quimica de Colombia S.A., 988 F.2d 559 (5th Cir.
1993), (holding that when affidavit “clarif[ies] a petition that
previously left the jurisdictional question ambiguous,” the court
may

consider

proper).

the

affidavit

in

determining

whether

remand

is

However, when the amount in controversy is clear from

the face of the petition, post-removal stipulations and affidavits
purporting to reduce the amount of damages a plaintiff seeks
cannot deprive a court of diversity jurisdiction.

Id.

In ANPAC, the Fifth Circuit identified 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 [the
jurisdictional amount]; (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.
ANPAC, 988 F.2d at 566; See also Marcel, 5 F.3d at 84.
In the instant case, it is facially apparent from examination
7

of Plaintiff’s petition the claims exceed $75,000; moreover,
summary

judgment

evidence,

the

medical

records

support

that

finding.
Courts have held that allegations which include a prayer for
past and future medical expenses, past and future lost wages, past
and future pain and suffering, and past and future disability are
sufficient to infer that the jurisdictional amount is present.
Tauzier v. Dodge, 1998 WESTLAW 227170, *2; 1998 U.S. Dist LEXIS
12902 (E.D. La. May 5, 1998).

Plaintiff files claims for “past,

present, and future medical expenses; past, present, and future
mental and physical pain and suffering; past, present, and future
loss of enjoyment of life; lost wages; and residual disability.”
(Rec. Doc. No. 1-1 at 3).
Additionally, the Court may rely on summary judgment-type
evidence to ascertain whether the amount in controversy exceeded
$75,000 on the date that Plaintiff filed his complaint in state
court.

Unlike the removing party in ANPAC, Defendants here have

produced convincing evidence that Plaintiff’s claim at the time
the

petition

precedent

in

was

filed

which

exceeded

damages

were

$75,000,
awarded

including,
in

excess

jurisdictional amount for similar alleged injuries.

citing
of

the

(Rec. Doc.

No. 14 at 9) (citing ANPAC, 988 F.2d 559).
The fact that Plaintiff has offered to stipulate that damages
will not exceed $75,000 does not bar removal.
8

Article 893 is

consistent with established Fifth Circuit jurisprudence requiring
plaintiffs

who

want

to

prevent

removal

to

file

a

binding

stipulation or affidavit with their complaints. Later filings have
no such effect and are irrelevant.

DeAguilar, 47 F.3d at 1412,

(quoting In Re Shell Oil Co., 970 F.2d 355, 356) (7th Cir. 1992)
(per curiam.)

The policy behind these requirements is the notion

that plaintiffs must show that they are irrevocably bound by their
state court pleadings.

Id. n.10.

Thus, in a case for unliquidated

damages, Plaintiff cannot avoid removal on grounds that the amount
in controversy is not met since his petition is silent as to the
amount in controversy and defendants can show that the allegations
are sufficient to establish federal court jurisdiction.
In moving for remand, Plaintiff makes no effort to show that
he is entitled to less $75,000 in damages, and instead asserts
that

removal

is

improper

because

defendants

have

failed

to

establish that the jurisdictional amount is present, and Plaintiff
has offered to stipulate that damages will not exceed $75,000.
(Rec. Doc. No. 12-1 at 2).

In opposing remand, Defendants have

provided the missing support and show by a preponderance of
evidence that the amount in controversy could exceed $75,000.
(Rec. Doc. No. 14 at 9). The Court concludes that the $75,000
amount in controversy is likely to have been exceeded at the time
Plaintiff filed his complaint in state court, as Defendants have
established through their affidavit that jurisdiction is proper in
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this Court by a preponderance of evidence.

(Rec. Doc. No. 14-4).

Therefore, the Motion to Remand is DENIED.
New Orleans, Louisiana, this 7TH day of July, 2011.

______________________________
UNITED STATES DISTRICT JUDGE

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