Deamer v. T A Operating L L C et al

Filing 7

MEMORANDUM RULING re 5 First MOTION to Remand filed by Derrick Deamer. Signed by Magistrate Judge Karen L Hayes on 11/20/12. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
DERRICK DEAMER

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CIVIL ACTION NO. 12-2625

VERSUS

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JUDGE ELIZABETH E. FOOTE

TA OPERATING, LLC., ET AL.

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MAG. JUDGE KAREN L. HAYES

MEMORANDUM RULING
Before the undersigned Magistrate Judge, on reference from the District Court, is a
Motion to Remand [doc. # 5] filed by Plaintiff Derrick Deamer. This motion is unopposed. For
the reasons stated below, the Motion to Remand is GRANTED.1
Background
According to the petition filed in the First Judicial District Court Parish of Caddo in early
2012, Plaintiff alleges that he was a patron of Travel Centers of American, and while “walking in
the store . . . he slipped and fell on wet paint that was on the concrete.” [doc. # 1-1, P. 1]. This
allegedly caused the Plaintiff to suffer injuries and damages in the form of physical and mental
pain, medical expenses, and lost wages and enjoyment of life. Id. at 3. Defendants removed the
above-captioned matter pursuant to 28 U.S.C. §§ 1332 and 1441, alleging complete diversity and
that “[P]laintiff claims damages in excess of $75,000, exclusive of attorney’s fees, costs,
expenses and judicial interest.” [doc. # 1, P. 3].

1

As this motion is not excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of any claim
on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this ruling
is issued under the authority thereof, and in accordance with the standing order of this court. Any
appeal must be made to the district judge in accordance with Rule 72(a) and L.R. 74.1(W).

On October 18, 2012, Plaintiff filed the instant motion challenging the removal of this
matter solely on the basis of Defendant’s failure to prove the requisite amount in controversy.
[doc. # 5-1, P.1]. Additionally, in the instant motion, Plaintiff submits “that the value of his
claim does not now, nor has it ever, met the requisite jurisdictional amount.” Id. Defendants
have not opposed the motion. See [doc. # 6, P. 1]. The matter is now before the Court.
Law
“The removing party bears the burden of establishing 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)). “In general, defendants may remove
a civil action if a federal court would have had original jurisdiction.” Id. (citing 28 U.S.C. §
1441(a)).
In this case, Defendants assert that federal jurisdiction exists 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 amount in controversy 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
$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).
“To satisfy the preponderance standard, the removing defendant may support federal
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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). “One such way for a plaintiff to satisfy the legal
certainty test is to file a binding stipulation or affidavit with the original complaint.” Franco v.
Teasdale, No. 06-2754, 2006 U.S. Dist. LEXIS 53585, at *1 (E.D. La. Aug. 1, 2006).
It is axiomatic that when resolving a motion to remand, we look at jurisdictional facts as
they exist at the time the case was removed. Asociacion Nacional De Pescadores v. Doe
Quimica, 988 F.2d 559, 565 (5th Cir. 1993), cert. denied, 510 U.S. 1041, 114 S.Ct. 685 (1994),
abrogated on other grounds, Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211 (5th Cir. 1998)
(“ANPAC”). “While post-removal affidavits may be considered in determining the amount in
controversy at the time of removal, such affidavits may be considered only if the basis for
jurisdiction is ambiguous at the time of removal.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880
(5th Cir. 2000) (citing, ANPAC, supra).
Analysis
Applying the foregoing precepts here, the Court finds that removing Defendants have
failed to meet their burden of proof regarding the amount in controversy. Defendants neither
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establish that it is facially apparent that Plaintiff’s claim exceed $75,000, nor do they allege facts
in controversy in the removal petition to show that the amount in controversy is met. In the
removal petition, Defendants merely state: “Based upon information and belief, the plaintiff
claims damages in excess of $75,000.00, exclusive of attorney’s fees, costs, expenses and
judicial interest.” [doc. # 1, P. 3]. Likewise, Defendants have failed to file a response to the
instant motion, and cannot establish that the amount in controversy requirement has been
satisfied. Finally, it is not facially apparent from Plaintiff’s complaint that the amount in
controversy is met, and Plaintiff claims that his damages do not exceed $75,000. 2 Accordingly,
subject matter jurisdiction is lacking and remand is required. 28 U.S.C. § 1447(c).
For the foregoing reasons, the Motion to Remand [doc. # 5] filed by Plaintiff is hereby
GRANTED; the case shall be REMANDED to the First Judicial District Court for the Parish of
Caddo, State of Louisiana.
THUS DONE AND SIGNED at Monroe, Louisiana, this 20th day of November 2012.

2

It should be noted that while plaintiff’s motion to remand references a binding
stipulation, no such stipulation was filed with the court. However, should plaintiff try to claim at
a later date, even more than one year after suit was filed, that his damages exceed $75,000,
exclusive of interest and costs, defendants would again have the right to remove this action on
the basis that plaintiff acted in bad faith in claiming that his damages did not exceed the
jurisdictional amount.
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