Gray v. State Farm Mutual Automobile Insurance Company et al

Filing 11

ORDER REMANDING CASE TO STATE COURT. Signed by Judge Helen G. Berrigan on 05/30/2013. (Attachments: # 1 Remand Letter)(kac, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

TEKISHA GRAY

CIVIL ACTION

VERSUS

NO. 13-2805

STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY AND GARY DILDY

SECTION “C” (4)

ORDER
The Court previously ordered briefing on whether the jurisdictional minimum existed at the
time of removal. Rec. Doc. 5. Before the Court are memorandum by the parties on this issue. Rec.
Docs. 6, 7. Having determined that the defendant has not shown that subject matter jurisdiction
exists, this matter is hereby REMANDED to the state court pursuant to 28 U.S.C. § 1447(c).
The parties may neither consent to, nor waive, federal subject matter jurisdiction. Simon v.
Wal-Mart Stores, Inc., 193 F.3d 848 (5th Cir. 1999). Bare assertions by the removing party are
insufficient to invest a federal court of jurisdiction. Association Nacional De Pescadores A Pequena
Escala O Artesanales De Colombis (ANPAC) v. Dow Quimica De Colombia, S.A., 988 F.2d 559 (5th
Cir. 1993), cert. denied, 114 S.Ct. 685 (1994).
Instead, the Fifth Circuit advises the district courts that they should review their subject
matter jurisdiction in cases such as this. Id.; Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir.
1999). In order to remain in federal court, the removing parties must prove by a preponderance of
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the evidence that the jurisdictional minimum exists. Id. This showing may be made by either: (1)
demonstrating that it is facially apparent that the claims are likely above the jurisdictional minimum;
or (2) setting forth the facts in controversy that support a finding of the jurisdictional minimum. Id.
It is the recognized burden of the party invoking jurisdiction “both to allege with sufficient
particularity the facts creating jurisdiction, in view of the nature of the right asserted, and, if
appropriately challenged, or if inquiry be made by the court of its own motion, to support the
allegation.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 287, fn. 10 (1938), citing
McNutt v. General Motors Corp., 298 U.S. 178, 182-189 (1936); Diefenthal v. Civil Aeronautics
Board, 681 F.2d 1039 (5th Cir. 1982), cert denied, 459 U.S. 1107 (1983).
Plaintiff filed this suit on April 5, 2013 in the 24th Judicial District Court for the Parish of
Jefferson. Id. In response to the Court’s order that: “Affirmative proof of the amount shall be
provided,” (Rec. Doc. 5), defendant filed medical records under seal. Rec. Doc. 7-2. The amount
affirmed by those records does not exceed $75,000. The Court does not find that plaintiff's prayer
for damages makes it "facially apparent" that the claims would exceed $75,000. Defendant argued
in its memorandum that Ms. Gray may potentially require surgery in the future. Rec. Doc. 7 at 4.
The medical records merely state that plaintiff is advised to seek a neurosurgical consultation, not
that she affirmatively may require surgery. Rec. Doc. 7-2. Should Ms. Gray require surgery in the
future for the herniated disc, defendant may once again remove the case, and the court will reconsider its jurisdiction.
The Court does not find that the jurisdictional minimum is met. In addition, the court is
mindful that removal jurisdiction is strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100 (1941); Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986); Butler v. Polk, 592 F.2d 1293
(5th Cir. 1979); C. Wright, A. Miller & E. Cooper, 14C Federal Practice & Procedure: Civil §
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3739.
Accordingly,
IT IS ORDERED that this matter be and hereby is REMANDED to the 24th Judicial District
Court for the Parish of Jefferson, due to a lack of subject matter jurisdiction under 28 U.S.C. §
1447(c).

New Orleans, Louisiana, this 30th day of May, 2013.

__________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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