Jackson v. Ngabonziza et al

Filing 11

MEMORANDUM RULING re Jurisdiction. Signed by Magistrate Judge Karen L Hayes on 5/23/13. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
BARRY LANE JACKSON

*

CIVIL ACTION NO. 13-0555

VERSUS

*

JUDGE JAMES T. TRIMBLE, JR.

JEAN BOSCO NGABONZIZA, ET AL.

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MAG. JUDGE KAREN L. HAYES

MEMORANDUM RULING
On March 15, 2013, defendants Jean Bosco Ngabonziza, Tana Trans Company, and Great
West Casualty Company removed this matter to federal court on the basis of diversity
jurisdiction, 28 U.S.C. § 1332. On May 1, 2013, the court reviewed the notice of removal and
the state court petition, but determined that it was not “facially apparent” from the bare damages
allegations that plaintiffs’ claims likely exceeded $75,000. (May 1, 2013, Order [doc. # 8]). The
court further recognized that plaintiff’s implied refusal to stipulate that his damages did not
exceed $75,000 was not determinative. Id. Accordingly, the court directed defendants to file a
memorandum, together with supporting documentation and/or affidavits, if appropriate,
sufficient to establish the requisite amount in controversy as of the time of removal. Id.1
On May 13, 2013, defendants filed a memorandum that, in effect, re-urged their initial
arguments set forth in their notice of removal that the court deemed insufficient, i.e. that the
requisite amount in controversy may be established from 1) the face of plaintiff’s petition, and/or
2) plaintiff’s apparent refusal to stipulate that his damages did not exceed $75,000. See Def.
1

The court further ordered defendants to file an amended notice of removal to properly
allege the citizenship of defendant, Great West Casualty Company. Id. Defendants so complied.
(Amend. Notice of Removal [doc. # 9]).

Memo., [doc. # 10]. Plaintiff did not respond to defendants’ memorandum, despite the
opportunity to do so. See May 1, 2013, Order [doc. # 8]). Thus, the matter is now before the
court.
Law
“A party may remove an action from state court to federal court if the action is one over
which the federal court possesses subject matter jurisdiction.” Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); see 28 U.S.C. § 1441(a). “The removing party
bears the burden of showing that federal jurisdiction exists.” De Aguilar v. Boeing Co., 47 F.3d
1404, 1408 (5th Cir. 1995) (citing Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252,
253-54 (5th Cir. 1961)). To determine whether jurisdiction is present, courts consider “the
claims in the state court petition as they existed at the time of removal.” Manguno, 276 F.3d at
723 (citing Cavallini v. State Farm Mut. Auto. Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). “Any
ambiguities are construed against removal because the removal statute should be strictly
construed in favor of remand.” Id. (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th
Cir. 2000)).
In this case, defendants assert federal jurisdiction on the basis of diversity jurisdiction,
which, of course, requires complete diversity of citizenship and an amount in controversy
exceeding $75,000. 28 U.S.C. § 1332(a). The parties here are diverse; the sole issue is whether
the amount in controversy requirement is satisfied. The Fifth Circuit has
established a clear analytical framework for resolving disputes concerning the
amount in controversy for actions removed from Louisiana state courts pursuant
to § 1332(a)(1). Because plaintiffs in Louisiana state courts, by law, may not
specify the numerical value of claimed damages, the removing defendant must
prove by a preponderance of the evidence that the amount in controversy exceeds
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$75,000.
Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882-883 (5th Cir. 2000) (citing Luckett v. Delta
Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (internal citation omitted); see also 28 U.S.C. §
1446(c)(2).
“To satisfy the preponderance standard, the removing defendant may support federal
jurisdiction either by establishing that it is ‘facially apparent’ that the claims probably exceed
$75,000 or by establishing the facts in controversy in the removal petition or [summary
judgment-type evidence] to show that the amount-in-controversy is met.” Felton v. Greyhound
Lines, Inc., 324 F.3d 771, 774 (5th Cir. 2003); accord St. Paul Reinsurance Co. v. Greenberg,
134 F.3d 1250, 1254 (5th Cir. 1998). “If a defendant is successful in proving that the amount in
controversy exceeds the jurisdictional limit, the burden shifts to the plaintiff to show with legal
certainty that he or she will not be able to recover more than $75,000.” Hummel v. State Farm
Mut. Auto. Ins. Co., No. 04-1386, 2005 U.S. Dist. LEXIS 127, at *5 (E.D. La. Jan. 5, 2005)
(citing De Aguilar, 47 F.3d at 1411-12).
Analysis
Defendants argue that the damages allegations in plaintiff’s petition suffice to establish
the threshold amount in controversy requirement. Plaintiff alleged that he suffered “substantial
physical and mental trauma,” and itemized the following damages,
a)

Mental Anguish, Physical Injuries, Inconvenience, and Medical Expenses (Past,
Present, and Future);

b)

Conscious Pain and Suffering;

c)

Loss of Earning Capacity;

[d)]

Emergency Ambulance Expense; and

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[e)]
Property Damage.2
(Petition, ¶¶ 8, 9, & 16).
The court acknowledges that plaintiff alleged “substantial physical and mental trauma,”
and that his itemized damages include some of the types of damages used to find that the amount
in controversy exceeded the jurisdictional threshold in Gebbia, supra. Plaintiff’ petition,
however, includes neither specific serious injury(ies), nor additional categories of damages such
as loss of enjoyment of life and permanent disability and disfigurement that were present in
Gebbia. Under these circumstances, it is not “facially apparent” that the amount in controversy
exceeded $75,000 at the time of removal. See Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851
(5th Cir. 1999). Therefore, it devolves upon removing defendants “to produce information,
through factual allegations or an affidavit, sufficient to show by a preponderance of the evidence
that the amount in controversy exceed [ed] $75,000.” Id. (citation and internal quotation marks
omitted).
The only evidence adduced by defendants is a copy of an e-mail from defense counsel to
plaintiff’s counsel that attached a proposed stipulation, and advised that if defense counsel did
not hear from plaintiff’s counsel by March 13, 2013, then defense counsel would “assume” that
plaintiff was seeking damages greater than $75,000. (March 11, 2013, E-mail from Brittany
Courtenay to James Ross; Def. Memo., Exh. B). When no response was forthcoming, defendants
removed the matter to federal court.
The court reiterates, however, that plaintiff’s refusal to stipulate that his damages do not
2

Defendants emphasize that at the time of the accident, plaintiff was driving a 1984
Oldsmobile Cutlass. (Def. Memo., pg. 2). The court takes judicial notice of the fact that
property damage to a 1984 Oldsmobile will not appreciably assist defendants towards
establishing the $75,000 jurisdictional minimum.
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exceed $75,000 is not dispositive. Myers v. Gregory, Civ. A. No. 07-2213, 2008 WL 239570
(W.D. La. Jan. 29, 2008) (plaintiff’s refusal to sign a binding stipulation does not suffice to meet
defendant's burden of proof regarding amount in controversy). Rather, plaintiff’s refusal to
stipulate is but one factor in determining whether the amount in controversy exceeded $75,000 at
the time of removal. Carbajal v. Caskids Oil Operating Co., Civ. A. No. 05-5966, 2006 WL
1030392 (E.D. La. Apr. 18, 2006) (citations omitted). When, as here, the allegations in the
petition are, at best, no better than ambiguous, and where defendants have produced no
supporting interrogatory responses, medical expenses, settlement demands, or other affirmative
evidence, the court is compelled to find that plaintiff’s implied refusal to stipulate that his
damages do not exceed $75,000, does not suffice to establish that the amount in controversy
likely exceeded the jurisdictional minimum.
Conclusion
In sum, plaintiff’s petition does not support diversity jurisdiction on its face, nor did
removing defendants allege or aver additional facts which would support federal jurisdiction.
See Simon, supra. Accordingly, subject matter jurisdiction is lacking and remand is required. 28
U.S.C. §§ 1332 & 1447(c).3 The matter will be remanded, via separate judgment, to the Fourth

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Federal courts are obliged to examine the basis for the exercise of federal subject matter
jurisdiction. Smith v. Texas Children’s Hospital, 172 F.3d 923, 925 (5 th Cir. 1999). A lack of
subject matter jurisdiction may be raised at any time. Giles v. Nylcare Health Plans, Inc., 172 F.3d
332, 336 (5th Cir. 1999). Furthermore, a court must raise the issue sua sponte if it discovers it lacks
subject matter jurisdiction. Id. Indeed, 28 U.S.C. § 1447(c) provides that, “[i]f at any time before
final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.”

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Judicial District Court for the Parish of Ouachita, whence it was removed.4
IT IS SO ORDERED.
THUS DONE AND SIGNED, in chambers, at Monroe, Louisiana, this 23rd day of May
2013.

4

In their memorandum, defendants state that in the event the court determines that the
amount in controversy does not exceed $75,000, they would like to reserve their right to reremove this case at a later date if additional evidence shows that the amount in controversy
exceeds $75,000. (Def. Memo., pg. 4). Without intimating an opinion on the extent or effect of
defendants’ right to re-remove, the court notes defendants’ reservation of same.
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