Yorsch v. NuVasive, Inc.
Filing
12
ORDER & REASONS: ORDERED that 5 Motion to Remand to State Court is DENIED. Signed by Judge Martin L.C. Feldman. (cml)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMI YORSCH
CIVIL ACTION
V.
NO. 14-2359
NUVASIVE, INC.
SECTION "F"
ORDER AND REASONS
Before the Court is the plaintiff's motion to remand for lack
of subject matter jurisdiction.
For the reasons that follow, the
motion is DENIED.
Background
This dispute involves a non-competition agreement between
Yorsch and her former employer, NuVasive.
NuVasive is a medical
device company that manufactures, promotes, and sells tools and
implants used in spine surgery.
Yorsch worked for NuVasive as a
sales representative until she resigned on October 1, 2014, and
accepted
similar
competitors.
employment
with
one
of
NuVasive's
direct
In 2013, Yorsch earned nearly $700,000 at NuVasive.
On October 9, Yorsch filed suit against NuVasive in state
court.
In the complaint she asks for: (1) a judgment declaring
unenforceable
certain
restrictive
covenants
contained
in
the
agreement; (2) an injunction to preclude NuVasive from enforcing
those provisions; and (3) money damages, including attorney's fees,
for
NuVasive's
Practices Act.
alleged
violation
of
Louisiana's
Unfair
Trade
The complaint does not state that the plaintiff
1
seeks to recover less than this Court's jurisdictional minimum, nor
has the plaintiff ever waived recovering over that amount.
The plaintiff sought a temporary restraining order in state
court, and at the TRO hearing the defendant's counsel represented
that they did not plan to attempt to enforce the non-compete and
non-solicitation provisions of the agreement.
The state court
denied the plaintiff's request for a TRO but set a preliminary
injunction hearing for October 16, 2014.
On October 15, the defendant removed to this Court based on
diversity jurisdiction. With respect to the amount in controversy,
the notice of removal states:
Plaintiff brought her Petition in order to allow her to
continue earning a living in the industry in which she
has worked for over nine years.
She disputes the
enforceability of certain employment covenants that
provide restrictions for a period of one (1) year
following the termination of her employment with
NuVasive. Plaintiff's yearly earnings are well above the
jurisdictional amount required for removal; such a
showing can be made before the court if desired.
Therefore, it is readily apparent that the alleged value
of the right to be protected or the extent of the injury
to be prevented exceeds more than $75,000 in controversy.
(internal citations and quotations omitted).
I.
A.
Although the plaintiff challenges removal in this case, the
removing defendant carries the burden of showing the propriety of
this Court's removal jurisdiction.
See Jernigan v. Ashland Oil,
Inc., 989 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 868, 114
2
S. Ct. 192, 126 L.Ed.2d 150 (1993); Willy v. Coastal Corp., 855
F.2d
1160,
1164
(5th
Cir.
1988).
"Because
removal
raises
significant federalism concerns, the removal statute is strictly
construed."
2008).
Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.
Further, "any doubt as to the propriety of removal should
be resolved in favor of remand."
Id.
B.
A defendant may generally remove a civil action filed in state
court if the federal court has original jurisdiction over the case
-- that is, if the plaintiff could have brought the action in
See 28 U.S.C. § 1441(a). To
federal court from the outset.
exercise diversity jurisdiction, complete diversity must exist
between the plaintiffs and all of the properly joined defendants,
and the amount in controversy must exceed $75,000.
See 28 U.S.C.
§ 1332. The only dispute here is whether the amount-in-controversy
requirement is met.
To determine whether it has jurisdiction, the Court must
consider the allegations in the state court petition as they
existed at the time of removal.
See Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720 (5th Cir. 2002); see also Cavallini v.
State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995).
Louisiana law requires that a plaintiff include "no specific amount
3
of damages" in her prayer for relief.
LA. CODE CIV. PROC. art. 893.1
When the plaintiff has, therefore, alleged an indeterminate amount
of damages, the removing party must prove by a preponderance of the
evidence that the amount in controversy exceeds $75,000.
Simon v.
Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); see also De
Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
This
showing may be made by either (1) showing that it is facially
apparent that the plaintiff’s claims likely exceed $75,000 or (2)
setting
forth
"summary
judgment
type
evidence"
of
facts
in
controversy that support a finding of the jurisdictional amount.
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th
Cir. 2002);
Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298
(5th Cir. 1999).
"[I]f it is facially apparent from the petition
that the amount in controversy exceeds $75,000 at the time of
removal, post-removal affidavits, stipulations, and amendments
reducing
the
jurisdiction."
amount
do
not
deprive
the
district
court
of
Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883
(5th Cir. 2000).
If the removing defendant cannot show that the
amount in controversy is facially apparent, it may be able to prove
"by setting forth the facts in controversy – preferably in the
removal petition, but sometimes by affidavit – that support a
1
"[I]f a specific amount of damages is necessary to establish
. . . the lack of jurisdiction of federal courts due to
insufficiency of damages . . . a general allegation that the claim
exceeds or is less than the requisite amount is required." La.
Code Civ. Proc. art. 893.
4
finding of the requisite amount."
Luckett, 171 F.3d at 298.
If
the petition is ambiguous as to whether the alleged damages surpass
the jurisdictional amount in controversy, 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 Química de Colombia, 988 F.2d 559, 565 (5th
Cir. 1993), abrogated on other grounds by Marathon Oil Co. v.
Ruhgras, 145 F.3d 211, 214 (5th Cir. 1998), rev'd on other grounds,
526 U.S. 574 (1999).
If the removing party satisfies its burden, the plaintiff can
only defeat removal by showing that it is "legally certain that his
recovery will not exceed the amount stated in the state complaint."
De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995); see
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289
(1938) ("It must appear to a legal certainty that the claim is
really
for
dismissal.").
less
than
Absent
the
a
jurisdictional
statute
that
amount
restricts
to
justify
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, St. Paul makes later filings irrelevant." De
Aguilar, 47 F.3d at 1412 (quoting In re Shell Oil Co., 970 F.2d
355, 356 (7th Cir. 1992) (per curiam)).
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II.
"The amount in controversy, in an action for declaratory or
injunctive relief, is the value of the right to be protected or the
extent of the injury to be prevented."
St. Paul Reinsurance Co.,
Ltd. v. Greenberg, 134 F.3d 1250, 1252-53 (5th Cir. 1998).
Thus,
when a party seeks injunctive relief, the value of the object of
the litigation determines the amount in controversy. Hunt v. Wash.
State Adver. Comm'n, 432 U.S. 333, 347 (1977).
The
defendant
contends
that
the
amount-in-controversy
requirement is met because a declaration in Yorsch's favor will
allow her to pursue her existing career in which she has made
hundreds of thousands of dollars annually.
The defendant also
asserts that one can assume that the plaintiff seeks a recovery in
excess of $75,000 in damages and attorneys' fees in her LUTPA claim
because she did not state the contrary in her complaint.
The
plaintiff contends, without citation to law, that because NuVasive
does not plan to enforce the non-competition and non-solicitation
covenants, Yorsch's salary is not the object of the litigation, and
thus her claims do not exceed $75,000.
This voluntary cessation
argument is not persuasive.
This
Court
finds
that
the
defendant
has
shown,
by
a
preponderance of the evidence, that the amount in controversy
exceeds
$75,000.
The
plaintiff
has
not
shown
"to
a
certainty" that the recovery will fall at $75,000 or below.
6
legal
Accordingly,
IT IS ORDERED that the motion to remand is hereby DENIED.2
New Orleans, Louisiana, November 17, 2014
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
2
Quite obviously, if, as plaintiff infers, her case is worth
less than $75,000, she will take some amount less in a possible
settlement.
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