Bryant et al v. Rosser et al

Filing 20

ORDER AND REASONS granting 16 Motion to Remand. Signed by Chief Judge Sarah S. Vance on 2/3/14. (Attachments: # 1 Remand Letter) (jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LISA BRYANT, ET AL.

CIVIL ACTION

VERSUS

NO: 13-6125

JEAN T. ROSSER, ET AL.

SECTION: R(1)

ORDER AND REASONS
Plaintiffs move the Court to remand this diversity case to
state court, arguing that the amount in controversy does not
exceed $75,000.1 Because defendants have not proved by a
preponderance of the evidence that the jurisdictional threshold
is satisfied, the Court GRANTS plaintiffs' motion.

I.

BACKGROUND
On September 6, 2013, Lisa Bryant, Kendrick Wells, and

Shayneal Abdullah filed this lawsuit against Jean Rosser, G&P
Trucking Company, and National Union Fire Insurance Company in
Louisiana state court.2 The complaint alleges that Rosser, an
employee of G&P, negligently changed lanes while driving on
Elysian Fields Avenue and struck plaintiffs' vehicle.3 Plaintiffs
allege that the resulting accident caused them to suffer injuries

1

R. Doc. 16.

2

See R. Doc. 1-1.

3

Id. at 1-2.

requiring medical treatment.4 For example, Bryant allegedly
suffered a herniated lumbar disc, an acute left trapezius strain,
an acute left cervical strain, an acute left sternocleidomastoid
muscle strain, an acute left anterior chest wall strain, and an
acute left upper extremity strain.5 Plaintiffs allege that
defendants are liable to them for the following items of damage:
"[p]ast, present, and future medicine, drugs, hospitalization,
medical care, pain and suffering, residual disabilities, lost
wages, and loss of future earning capacity, mental anguish,
emotional upset and distress."6
On October 11, 2013, defendants timely removed the matter to
this Court on the basis of diversity jurisdiction.7 Plaintiffs
now move to remand the case to state court, arguing that the
amount in controversy does not exceed $75,000, as is required by
the diversity jurisdiction statute, see 28 U.S.C. § 1332.8
Plaintiffs have attached to their motion a stipulation stating
that no plaintiff has damages in excess of $75,000 and that no
plaintiff will execute a judgment greater than $75,000.9
4

Id. at 2-3.

5

Id. at 2.

6

Id. at 3.

7

R. Doc. 1.

8

R. Doc. 16. There is no dispute that complete diversity
exists among the parties.
9

R. Doc. 16-2.
2

II.

LEGAL STANDARD

A.

Removal
A defendant may generally remove a civil action filed in

state court if the federal court has original jurisdiction over
the action. See 28 U.S.C. § 1441(a). The removing party bears the
burden of demonstrating that federal jurisdiction exists. See
Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
"[T]he jurisdictional facts that support removal must be judged
at the time of removal . . . ." Id. In assessing whether removal
was appropriate, the Court is guided by the principle, grounded
in notions of comity and the recognition that federal courts are
courts of limited jurisdiction, that "removal statute[s] should
be strictly construed in favor of remand." Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). The
Court must remand the case to state court "[i]f at any time
before final judgment it appears that the district court lacks
subject matter jurisdiction." 28 U.S.C. § 1447(c).

B.

Amount in Controversy
Under Fifth Circuit law, a removing defendant's burden of

showing that the amount in controversy is sufficient to support
federal jurisdiction differs depending on whether the plaintiff's
complaint alleges a specific amount of monetary damages. See
Allen, 63 F.3d at 1335. When the plaintiff alleges a damage
figure in excess of the required amount in controversy, "that
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amount controls if made in good faith." Id. (citing St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)). If
the plaintiff pleads damages less than the jurisdictional amount,
this figure will also generally control, thereby barring removal.
Id. "Thus, in the typical diversity case, the plaintiff remains
the master of his complaint." Id.
Yet Louisiana law ordinarily does not allow a plaintiff to
plead a specific amount of damages. See La. Code Civ. P. art.
893; Manguno, 276 F.3d at 723. A plaintiff is, however, permitted
to make "a general allegation that the claim exceeds or is less
than" a particular amount if making such an allegation is
necessary to establish the lack of jurisdiction of federal courts
due to insufficiency of damages. La. Civ. Code. P. art. 893.
When, as here, the plaintiff has alleged an indeterminate amount
of damages, the Fifth Circuit requires the removing defendant to
prove by a preponderance of the evidence that the amount in
controversy exceeds $75,000. Gebbia v. Wal-Mart Stores, Inc., 233
F.3d 880, 882 (5th Cir. 2000); see also De Aguilar v. Boeing Co.,
47 F.3d 1404, 1412 (5th Cir. 1995). A defendant satisfies this
burden either by showing that it is facially apparent that the
plaintiff's claims exceed the jurisdictional amount or by setting
forth the facts in dispute supporting a finding that the
jurisdictional amount is satisfied. Allen, 63 F.3d at 1335.
"[W]here the district court is making the 'facially apparent'

4

determination, the proper procedure is to look only at the face
of the complaint and ask whether the amount in controversy was
likely to exceed [$75,000]." Allen, 63 F.3d at 1336. If the
"facially apparent" test is not met, the Court may consider
summary-judgment type evidence relevant to the amount in
controversy as of the time of removal. Id.
If the defendant meets its burden of showing the requisite
amount in controversy, the plaintiff can defeat removal only by
establishing with legal certainty that the claims are for less
than $75,000. See De Aguilar, 47 F.3d at 1411-12. Absent a
statute limiting recovery, "[l]itigants who want to prevent
removal must file a binding stipulation or affidavit with their
complaints; once a defendant has removed the case, . . . later
filings [are] irrelevant." Id. at 1412 (quoting In re Shell Oil
Co., 970 F.2d 355, 356 (7th Cir. 1992)); see also id. at 1412
n.10 ("The general principle is that plaintiffs will have to show
that they are bound irrevocably by their state pleadings in these
situations."). Post-removal affidavits may be considered only if
the amount in controversy is ambiguous at the time of removal,
and then only for purpose of determining the amount in
controversy as of the date of removal. See Gebbia, 233 F.3d at
883; Asociacion Nacional de Pescadores v. Dow Quimica de Colombia
(ANPAC), S.A., 988 F.2d 559, 565 (5th Cir. 1993) (if the
affidavit "clarif[ies] a petition that previously left the

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jurisdictional question ambiguous," the court may consider the
affidavit in determining whether removal was proper), abrogated
on other grounds by Marathon Oil Co. v. Ruhgras, 145 F.3d 211
(5th Cir. 1998), rev'd on other grounds, 526 U.S. 574 (1999). If
the amount in controversy is clear from the face of the
complaint, post-removal stipulations purporting to reduce the
amount of damages cannot deprive the Court of jurisdiction.
Gebbia, 233 F.3d at 883.
III. DISCUSSION
Because the complaint does not allege a specific amount of
damages, defendant must prove by a preponderance of the evidence
that the amount in controversy exceeds $75,000. Defendants must
show that at least one plaintiff's claims, standing alone,
satisfy the jurisdictional threshold; they cannot aggregate the
value of multiple plaintiffs' claims. See Snyder v. Harris, 394
U.S. 332, at 335 (1969) ("[T]he separate and distinct claims of
two or more plaintiffs cannot be aggregated in order to satisfy
the jurisdictional amount requirement.").
The Court first looks to the face of the complaint to
determine whether the amount in controversy is facially apparent.
Lisa Bryant, the plaintiff alleging the most extensive damages,
alleges that she suffered a herniated disc and several soft
tissue injuries. She conclusorily seeks damages for past and
future medical expenses, pain and suffering, disability, lost
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wages, loss of earning capacity, and emotional distress.10 Bryant
does not, however, allege that her injuries have required or
likely will require surgery. Moreover, the Court finds no
indication in the state court record that plaintiff requested a
trial by jury, which requires the claim to be for at least
$50,000. See La. Code Civ. P. art. 1732(1).
The Court finds that plaintiffs' allegations are fairly
"plain vanilla" and thus that it is not facially apparent that
the amount in controversy requirement is satisfied. See Simon v.
Wal-Mart Stores, Inc., 193 F.3d 848, 850-51 (5th Cir. 1999) (not
facially apparent that amount in controversy requirement was
satisfied when complaint alleged damages for "an injured
shoulder, bruises, and abrasions," unidentified medical expenses,
and loss of consortium); Jupiter v. Lowe's Home Ctrs., Inc.,
Civil Action No. 12-895, 2012 WL 2878639, at *2 (E.D. La. July
13, 2012) (complaint containing "vanilla" allegations that
plaintiff had suffered knee injuries and sought damages for "loss
of enjoyment of life; physical disability, pain and suffering;
past and future mental pain and suffering; disruption of bodily
tissues and cells; and past, present, and future medical
expenses" insufficient to put defendant on notice that amount in
controversy exceeded $75,000); Heaverlo v. Victoria's Secret
Stores, Civil Action No. 07-7303, 2008 WL 425575, at *2-3 (E.D.

10

R. Doc. 1-1 at 2-3.
7

La. Feb. 8, 2008) (not facially apparent that jurisdictional
threshold was satisfied when complaint alleged that defendants in
slip-and-fall case were "liable for past and future 'physical
pain and suffering, mental and emotional pain and suffering, loss
of enjoyment of life, permanent physical disability and
disfigurement, loss of consortium, inconvenience, expenses,
statutory and legal interest, court costs and attorney fees'");
Bonck v. Marriot Hotels, Inc., No. Civ.A. 02-2740, 2002 WL
31890932, at *2-3 (E.D. La. Dec. 20, 2002); Jeffcoats v. Rite-Aid
Pharmacy, No. Civ.A. 01-764, 2001 WL 1561803, at *2-3 (E.D. La.
Dec. 6, 2001); Seaman v. Tetra Applied Techs., Inc., No. Civ.A.
99-3811, 2000 WL 222851, at *2 (E.D. La. Feb. 18, 2000). Indeed,
in a case quite similar to this one, this Court held that a
complaint seeking damages arising from an automobile accident did
not facially satisfy the jurisdictional threshold, even though
the plaintiff alleged that he experienced neck and back injuries
and torn medial and lateral menisci in his knee. Williams v.
Dargins, No. CIV.A. 99-0019, 1999 WL 163431, at *2-3 (E.D. La.
Mar. 22, 1999).
The Court also notes that plaintiffs have stipulated that
they do not seek more than $75,000 and that they will not execute
a judgment greater than that amount.11 This document is signed by
plaintiffs' attorney and thus is binding on plaintiffs. See

11

R. Doc. 16-2.
8

Degeyter v. Allstate Ins. Co., No. 09-1582, 2009 WL 3335959, at
*2 (W.D. La. Oct. 15, 2009) ("It is well settled that an attorney
with proper authority, acting on behalf of his client, can bind
his client."). The Court can consider this stipulation as a
clarification of plaintiffs' demand, since the amount in
controversy was unclear at the time of removal. See ANPAC, 988
F.2d at 565; Mouton v. Balboa Ins. Co., Civil Action No. 10-1639,
2010 WL 2902785, at *3 (E.D. La. July 20, 2010); Jeffcoats, 2001
WL 1561803 at *2.
Defendants have submitted no evidence that Bryant's damages
exceed $75,000; instead, they offer only conclusory statements in
their notice of removal and opposition to the motion to remand
that the jurisdictional minimum is satisfied.12 That
distinguishes this case from McDonald v. Target Corp., Civil
Action No. 11-598, 2011 WL 2160495 (E.D. La. June 1, 2011), upon
which defendants rely. See id. at *1 (noting that plaintiff's
medical reports indicated that she was still suffering from
"radiating pain in her extremities, neck pain, back pain, joint
pain, and swelling" months after her accident). Defendants'
conclusory assertions that the amount in controversy requirement
is satisfied are insufficient to defeat remand. See ANPAC, 988
F.2d at 566 (removing party fails to satisfy its burden of
showing that removal was appropriate if "(1) the complaint did

12

See R. Doc. 1 at 3; R. Doc. 19 at 3-4.
9

not specify an amount of damages, and it was not otherwise
facially apparent that the damages sought or incurred were likely
above [the jurisdictional threshold]; (2) the defendants offered
only a conclusory statement in their notice of removal that was
not based on direct knowledge about the plaintiff's claims; and
(3) the plaintiff timely contested removal with a sworn,
unrebutted affidavit indicating that the requisite amount in
controversy was not present"); Bonck, 2002 WL 31890932, at *3.
In sum, the Court finds that defendants have failed to carry
their burden of showing by a preponderance of the evidence that
the amount in controversy exceeds $75,000.
IV.

CONCLUSION
For the foregoing reasons, the Court concludes that it lacks

subject matter jurisdiction over this case. The Court thus GRANTS
plaintiffs' motion to remand.

New Orleans, Louisiana, this 3rd day of February, 2014.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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