Farber v. Goodyear Tire & Rubber Company et al

Filing 14

ORDER AND REASONS granting 9 Motion to Remand to State Court. Signed by Chief Judge Sarah S. Vance on 3/23/15. (Attachments: # 1 Letter) (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JUSTIN FARBER

CIVIL ACTION

VERSUS

NO: 14-2840

THE GOODYEAR TIRE & RUBBER
COMPANY, ET AL.

SECTION: R(3)

ORDER
Before the Court is plaintiff Justin Farber's unopposed motion
for remand.1
Company

and

Plaintiff
Dillard

sued defendants Goodyear Tire & Rubber

Store

Services

in

Louisiana

state

court

alleging that defendants' negligence caused plaintiff to slip and
fall

in

defendants'

store.2

As

directed

by

Louisiana

law,

plaintiff did not specify an amount in controversy in his statecourt

petition.

Defendants

removed

See

La.

Code

Civ.

the

case

invoking

contends

that

this

Proc.
this

art.

893(A)(1).

Court's

diversity

jurisdiction.
Plaintiff

Court

lacks

subject

matter

jurisdiction because the amount in controversy requirement under 28
U.S.C. § 1332(a) has not been met.

In a post-removal affidavit,

plaintiff states that this case involves less than $75,000 in

1

R. Doc. 9.

2

R. Doc. 1-1.

damages and renounces his right to accept or enforce a judgment in
excess of $75,000.3

When determining whether removal was proper,

a court may consider a post-removal affidavit that clarifies the
amount in controversy only if the state-court petition is ambiguous
as to the amount in controversy.

See Gebbia v. Wal-Mart Stores,

Inc., 233 F.3d 880, 883 (5th Cir. 2000); Associacon Nacional de
Pescadores a Pequena Escala O Artesanales de Colombia (ANPAC) v.
Dow Quimica de Colombia, S.A., 988 F.2d 559, 565 (5th Cir. 1993),
cert. denied, 510 U.S. 1041 (1994), abrogated on other grounds,
Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211 (5th Cir. 1998).
In

addition

to

not

pleading

an

amount

in

controversy,

plaintiff did not allege facts from which it could be reasonably
inferred that the amount in controversy exceeds $75,000.

Indeed,

the only injury plaintiff suffered as a result of defendants'
alleged negligence is a dislocated shoulder.4

Therefore, it is

appropriate for the Court to consider plaintiff’s post-removal
affidavit.

See Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851

(5th Cir. 1999) (district court erred in finding that plaintiff's
petition unambiguously claimed damages in excess of jurisdictional
amount when plaintiff's petition alleged "damages from less severe

3

R. Doc. 9-3.

4

R. Doc. 1-1 at 1.
2

physical injuries--an injured shoulder, bruises, and abrasions").
Plaintiff’s stipulation that the amount in controversy does not
exceed $75,000 and his waiver of entitlement to any award in excess
of $75,000 constitute “judicial confessions” that are binding on
the plaintiff. See Engstrom v. L-3 Commc’ns Gov’t Servs., Inc., No.
Civ. A. 04-2971, 2004 WL 2984329, at *4 (E.D. La. Dec. 23, 2004).
Accordingly, the Court finds that the jurisdictional amount is
lacking in this case and therefore GRANTS plaintiff’s motion to
remand.

New Orleans, Louisiana, this 23rd day of March 2015.
___

_____________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

3