Porter v. Georgia-Pacific Chemicals LLC et al

Filing 12

ORDER granting 3 Motion to Remand to State Court. An Order of Remand shall issue, provided that the plaintiff files a compliant affidavit within ten (10) days of the entry of this Order. Signed by District Judge Carlton W. Reeves on 7/11/13. (co)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
MARC C. PORTER

PLAINTIFF

v.

CAUSE NO. 3:12 -cv-842-CWR-FKB

GEORGIA-PACIFIC CHEMICALS
LLC, et al.

DEFENDANTS

MEMORANDUM ORDER
The above-styled cause is before the Court on the plaintiff’s motion to remand. Docket
No. 3. The Court has reviewed the Complaint, as well as the parties’ arguments concerning the
motion to remand. The motion is provisionally GRANTED.
This case was filed in state court on November 7, 2012. The defendants removed on
December 12, 2012, claiming that this Court had jurisdiction under 28 U.S.C. § 1332(a). Docket
No. 1. Section 1332(a) limits the original jurisdiction of district courts to “civil actions where the
matter in controversy exceeds the sum or value of $75,000,” exclusive of interests and costs. The
defendants argue that removal is proper because, under state law, the plaintiff may be entitled to
damages that exceed the jurisdictional minimum and might amend his pleading to do so, if this
case were remanded to state court.
Courts generally perform amount-in-controversy analysis by “looking only to the face of
the complaint and asking whether the amount in controversy exceeds the jurisdictional
threshold.” Ervin v. Sprint Commc’ns Co. LP, 364 F. App’x 114, 117 (5th Cir. 2010) (alterations,
citation, and quotation marks omitted).
Here, the plaintiff gives no indication on the face of the Complaint that he seeks damages
in excess of the jurisdictional minimum. Indeed, his Complaint specifies that he seeks “judgment
of and from the Defendants, jointly and severally, in the amount of $74,500.00 and all costs of

Court.” Docket No. 1-2, at 3. And if, despite this language, there remained any doubt, the
plaintiff has also filed an affidavit, averring that he will “neither accept nor seek no more than
Seventy-Five Thousand Dollars ($75,000.00) in damages from the Defendants, Georgia-Pacific
Chemicals LLC and Georgia Pacific LLC.” Docket No. 4-1.
Post-removal affidavits are permitted so long as they clarify a complaint that previously
left the jurisdictional question ambiguous. ANPAC v. Dow Quimica, 988 F.2d 559, 565 (5th
Cir.1993) abrogated on other grounds by Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211 (5th
Cir.1998); Hughes v. Safeco Ins. Co. of Illinois, No. 3:11-cv-200, 2011 WL 8198662 (S.D. Miss.
June 14, 2011); accord. Brown v. Wal-Mart Store, Inc., No. 2:12-cv-125, 2012 WL 4027312, at
*4 n.6 (S.D. Miss. Sept. 12, 2012) (collecting cases that consider a post-removal affidavit in
determining the amount in controversy under § 1332(a)). And the defendants have provided no
reason for the Court to consider the affidavit to be submitted in bad faith. But cf. De Aguilar v.
Boeing Co., 47 F.3d 1404, 1410 (5th Cir. 1995) (“The face of the plaintiff's pleading will not
control if made in bad faith.”).
The Court, however, is concerned by the affidavit’s silence on whether the plaintiff
would, at some point in the future, amend his complaint for the purpose of claiming damages in
excess of the jurisdictional minimum. Such an amendment would again subject the case to
removal, and would also raise the serious question of whether the plaintiff committed fraud on
the Court by filing his affidavit solely for purposes of precluding federal jurisdiction. Hughes,
2011 WL 8198662, at *2.
Accordingly,
IT IS ORDERED AND ADJUGDED that the Court will grant the motion to remand,
provided that the plaintiff files with this Court, within ten (10) days of the entry of this Order, an

2

affidavit stating, “without qualifiers or equivocation that [he] is not seeking an amount greater
than $75,000, exclusive of interest and costs; that [he] will not amend [his] complaint to seek
damages in excess of $75,000, exclusive of interest and costs; and, that under no circumstances
will [he] accept an amount greater than $75,000, exclusive of interest and costs, for damages of
any kind as a result of the circumstances alleged” in his Complaint. Brown, 2012 WL 4027312,
at *5 (citations omitted). Upon receipt of the compliant affidavit, an Order of Remand shall
issue.
SO ORDERED, this 11th day of July, 2013.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

3