Marine et al v. Van Krieken et al
ORDER REMANDING CASE TO STATE COURT. Signed by Judge Helen G. Berrigan on 10/6/2014. (Attachments: # 1 Remand Letter)(kac)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MONICA MARINE, ETC., ET AL
MONA VAN KRIEKEN, ET AL
SECTION ʺCʺ (3)
ORDER AND REASONS
This removed matter comes before the Court on the issue whether the
jurisdictional amount existed at the time of removal. Having reviewed the record, the
memoranda of counsel and the law, the Court has determined that remand is appropriate
for the following reasons.
The plaintiffsʹ petition seeks damages for personal injuries allegedly sustained on
August 28, 2013, in an automobile accident. Suit was filed on July 16, 2014, and removed
on the basis of diversity jurisdiction on August 25, 2014.
With regard to the existence of the jurisdictional minimum, 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 with jurisdiction. Asociacion 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 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 ʺboth 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.ʺ 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).
The defendants agree that the existence of the jurisdictional threshold was not
facially apparent from the petition, and rely on the plaintiffʹs denial that the claim was for
less than $75,000 and medical records indicating a diagnosis of cerebral concussion and
ʺherniated lumbar disc vs. segmental lumbosacral instability,ʺ along with the
neurosurgeonʹs statement that the plaintiff is a ʺsurgical candidate pending her test
results.ʺ Rec. Doc. 7‐2. The plaintiffs state that the neurosurgeon recommended that she
be admitted to undergo tests with the possibility of a surgical recommendation pending
the results of those tests, and that her medical bills to date total $7,064.00. The plaintiffs
also state that they believe the hospitalization will be accomplished in the next 30‐45 days.
Rec. Doc. 8 at 2. The plaintiffs also state that the outcome of those tests are determinative
of the existence of the jurisdictional minimum because if those tests do not indicate the
necessity of surgery, the jurisdictional minimum is not met. Rec. Doc. 8 at 3.
The Court finds that the defendants have not made a showing sufficiently
particularized to meet their burden. The existence of the jurisdictional minimum is
determined at the time of removal, and the record lacks evidence of significant medical
expenses, a final diagnosis or prognosis or the nature of any alleged disability. Absent
some proof supporting the jurisdictional amount, federal jurisdiction would be based, at
best, on speculation or consent, neither of which is allowed.
Based on the record and the law, the Court can not find that the defendants have
established subject matter jurisdiction. 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, 14B Federal Practice & Procedure: Civil,
§3721. When subject matter jurisdiction is doubtful, remand is appropriate. C. Wright, A.
Miller & E. Cooper, 14C Federal Practice & Procedure: Civil, §3739.
IT IS ORDERED that this matter is REMANDED to the Civil District Court for the
Parish of Orleans, State of Louisiana for lack of jurisdiction under 28 U.S.C. § 1447(c).
New Orleans, Louisiana, this 6th day of October, 2014.
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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