James v. Winn-Dixie Montgomery, LLC

Filing 8

ORDER granting 6 Motion to Remand to State Court. Signed by Judge Carl Barbier on 6/12/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES

CIVIL ACTION

VERSUS

NO: 13-2533

WINN-DIXIE MONTGOMERY, LLC.

SECTION: “J” (2)

ORDER
Before the Court is Plaintiff Adeline James’ Unopposed Motion
to Remand (Rec. Doc. 6). In her motion, Plaintiff requests that the
Court remand her suit to the Civil District Court for the Parish of
Orleans, stating that this Court lacks subject matter jurisdiction.
Plaintiff explains that her case was removed based on diversity
jurisdiction; however, she asserts that the requisite amount in
controversy, more than $75,000, is not met. In support, Plaintiff
has included her medical records, which demonstrate that she has
received minimal treatment for her injury and that none of her
treatment has been invasive. Furthermore, she also submits a
stipulation which states that her claim does not exceed $50,000.
A defendant may remove a civil action filed in state court if
a federal court would have had original jurisdiction over the case.
28 U.S.C. § 1441(a). As the removing party, the defendant bears the
burden of proving that federal jurisdiction exists at the time of
removal. De Aguilar, 47 F.3d at 1412.

Because federalism concerns

are inherent in the removal of a case from the state court system,
the removal statute is strictly construed, and any doubt as to the

propriety of removal must be resolved in favor of remand. Manguno
v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002).
When a case is removed on the basis of diversity jurisdiction,
the defendant must establish by a preponderance of the evidence
that the amount in controversy exceeds the minimal jurisdictional
amount of $75,000. Simon v. Wal-Mart Stores, Inc. 193 F.3d 848, 850
(5th

Cir.

1999).

This

showing

may

be

made

by

either

(1)

demonstrating that it is facially apparent from the state court
petition that the claim is likely to exceed $75,000, or (2) by
setting

forth

“summary

judgment

type

evidence”

of

facts

in

controversy that support a finding that the jurisdictional amount
is met. Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th
Cir. 1999). The court determines whether it has jurisdiction by
evaluating the allegations in the state court petition as they
exist at the time of removal. Gebbia v. Wal–Mart Stores, Inc., 233
F.3d 880, 883 (5th Cir. 2000). However, if the state court petition
is ambiguous as to whether the jurisdictional amount is met, the
court may consider a post-removal affidavit that clarifies the
original complaint. Asociación Nacional de Pescadores a Pequeña
Escala

o

Artesanales

de

Colombia

(ANPAC)

v.

Dow

Quimica

de

Colombia, 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).
In the instant case, the evidence presented by Plaintiff as

well as the lack of opposition from the Defendant indicate that the
requisite amount in controversy for diversity jurisdiction has not
been met. As such, the Court finds that it lacks subject matter
jurisdiction over Plaintiff’s claims. Accordingly,
IT IS ORDERED that Plaintiff’s motion is GRANTED.
IT IS FURTHER ORDERED that the above-captioned matter be
REMANDED to the Civil District Court for the Parish of Orleans.
New Orleans, Louisiana this 12th day of June, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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