Standish v. Nissan North America, Inc.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND AND DENYING AS MOOT MOTION TO STAY. Plaintiff Blair Standishs Motion to Remand and for Attorneys Fees and Costs (Dkt. 9) is DENIED. Because the motion to remand is denied, Plaintiffs recently-filed Motion to Stay Proceedings (Dkt. 20) is DENIED as MOOT. The case shall proceed in this Court. Signed by Magistrate Judge Don D. Bush on 10/17/11. (cm, ) Modified on 10/17/2011 (cm, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
NISSAN NORTH AMERICA, INC.
Case No. 4:11CV225
MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND AND
DENYING AS MOOT MOTION TO STAY
Plaintiff Blair Standish has filed a Motion to Remand and for Attorney’s Fees and Costs
(Dkt. 9). Defendant Nissan North America, Inc. removed this action from the 366th Judicial District
Court, Collin County, Texas. Removal was sought only on the basis of a federal question,
Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et. seq. (“MMWA”). Diversity jurisdiction was
not raised as a grounds for removal. Standish contends that this Court does not have federal question
jurisdiction. Standish points to her petition, which states that the only monetary relief sought is
$50,000 or less, excluding court costs, prejudgment interest, and attorney’s fees. See Dkt. 5. In fact,
Plaintiff expressly waives any right to recover more than $50,000 under the MMWA.
Under the MMWA, this Court has no jurisdiction if the amount in controversy is less than
the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims
to be determined. 15 U.S.C. § 2310(d)(3)(B). In order to determine if a case is properly in a federal
forum, the court must look to the “plaintiff’s well-pleaded complaint” to see if it raises a federal
question. Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). The presence or absence
of federal question jurisdiction is governed by the “well-pleaded complaint rule,” which provides
that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s
properly pled complaint. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429,
96 L. Ed. 2d 318 (1987). The removing defendant bears the burden of establishing that federal
jurisdiction actually exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Any
ambiguity in the pleadings should be resolved-in favor of remand. Greer v. MAJR Fin. Corp., 105
F. Supp. 2d 583, 591 n.6 (S. D. Miss. 2000).
The Fifth Circuit has concluded that the amount in controversy for purposes of the MMWA
does not include damages flowing from any pendent state law claim brought by a plaintiff. Boelens
v. Redman Homes, Inc., 748 F.2d 1058, 1069 (5th Cir. 1984). Moreover, the Fifth Circuit in Boelens
noted that damages recoverable in MMWA actions do not include certain elements of damages, most
notably personal injury damages, which are generally available in civil actions. Id. Attorneys fees
are excluded from consideration. Id. However, damages for economic loss would be recoverable.
Removal statutes must be strictly construed and doubts resolved against federal jurisdiction. Id. at
In this case, Plaintiff has expressly invoked federal jurisdiction. By pleading the sum of
$50,000 or less, jurisdiction was invoked since $50,000 is sufficient to secure jurisdiction. The
question then becomes whether Plaintiff’s concession to seek no more than the jurisdictional amount
suffices to warrant remand. The jurisdictional amount must be determined at the time of removal,
and any post-petition affidavits are allowable only in limited circumstances. Asociacion Nacional
de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia S.A., 988
F.2d 559, 566 (5th Cir. 1993). Post-removal affidavits may be considered where the complaint “left
the jurisdictional question ambiguous,” since under the circumstances the court is still examining
the jurisdictional facts. Id. at 565. Nevertheless, post-removal events cannot deprive the court of
jurisdiction once it has attached. Id. Although Plaintiff may have desired to avoid a trip to federal
court, her pleadings are the ticket. The Fifth Circuit has held that, as a general rule, where a plaintiff
after removal, by stipulation, by affidavit, or by amendment to pleading, reduces the claim sought
below the requisite jurisdictional amount, the court is not deprived of jurisdiction. Marcel v. Pool,
5 F.3d 81, 85 (5th Cir. 1993).
IT IS THEREFORE ORDERED that Plaintiff Blair Standish’s Motion to Remand and for
Attorney’s Fees and Costs (Dkt. 9) is DENIED. Because the motion to remand is denied, Plaintiff’s
recently-filed Motion to Stay Proceedings (Dkt. 20) is DENIED as MOOT. The case shall proceed
in this Court.
SIGNED this 17th day of October, 2011.
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE
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