Steele v. DynCorp International LLC

Filing 10

Memorandum Opinion and Order granting 6 Motion to Remand filed by Larry D. Steele. Having not been persuaded by defendant that the diversity jurisdictional amount exists in this case, the court is ordering the case remanded. Therefore, The court ORDERS that the above-captioned action be, and is hereby, REMANDED to the state court from which it was removed. (Ordered by Judge John McBryde on 1/12/2015) (mem)

IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION
LARRY D. STEELE,

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Plaintiff,

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vs.
DYNCORP INTERNATIONAL LLC,
Defendant.

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MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion of plaintiff, Larry D. Steele, to remand the abovecaptioned action to the state court from which it was removed on
the ground that the court lacks subject matter jurisdiction.
After having considered such motion and its supporting brief and
appendix, the response of defendant, DynCorp International LLC,
and its supporting brief, the notice of removal and its
supporting appendix, and pertinent legal authorities, the court
has concluded that such motion should be granted and that the
action should be remanded to state court.
I .

Background and Procedural History
A.

Pre-Removal Events in State Court
This action was initiated by the filing on October 24, 2014,

of plaintiff's original petition in County Court at Law No. 3 of

Tarrant County, Texas, in which plaintiff alleged that he was
terminated from employment by defendant because of his age and
disability, in violation of provisions of the Texas Labor Code.
He alleged that he "has suffered in the past, and in all
reasonable likelihood, will suffer in the future, damages
including, lost wages, lost earning capacity, mental anguish,
emotional pain and suffering, lost employment benefits,
inconvenience, loss of enjoyment of life, damage to professional
reputation, medical bills and other damages."
App. at 007.

Notice of Removal,

Plaintiff alleged that he sought "only monetary

relief of $75,000 or less, including damages of any kind,
penalties, costs, expenses, pre-judgment interest, and attorney
fees."

Id.

He prayed for an award of "damages, costs of court,

interest, and reasonable attorney's fees and other amounts not to
exceed $75,000."

Id. at 009.

Before defendant filed an answer to plaintiff's original
state court pleading, plaintiff filed on November 3, 2014, an
amended petition by which he limited the elements of damage for
which he was seeking compensation to past and future
"inconvenience, mental pain and suffering and loss of enjoyment
of life as a result of Defendant's actions against him," id. at
020, thus eliminating from his claim for damages past and future
lost wages, lost earning capacity, lost employment benefits,

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damage to professional reputation, and medical bills.

He

repeated in his amended pleading the language contained in the
original pleading that the recovery he was seeking did not exceed
$75,000.
B.

The Notice of Removal
After filing a state court answer to plaintiff's amended

state court pleading, defendant filed a notice removing the
action to this court on November 21, 2014, asserting that this
court had jurisdiction based on diversity of citizenship and an
amount in controversy in excess of the sum or value of $75,000,
exclusive of interests and costs.

Notice of Removal at 3, , 9.

In support of defendant's contention that the amount in
controversy exceeded the required jurisdictional amount,
defendant offered a declaration by an employee of defendant that
at the time of the termination of plaintiff's employment by
defendant he had an annualized base salary of $105,060.04, id.
App. at 030, and noted that because of the kind of cause of
action plaintiff alleged under the Texas Labor Code, plaintiff's
potential recovery of damages, if he were to establish liability,
would be in excess of $75,000 exclusive of interests and costs.
Defendant called the court's attention in the notice of removal
to sections 21.258 and 21.2585 of the Texas Labor Code that would
authorize plaintiff, if successful, to recover "back pay, front
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pay, compensatory damages for 'future pecuniary losses, emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment
of life, and other non-pecuniary losses,' attorneys' fees and
punitive damages."

Notice of Removal at 6, '

17.

Defendant went on to contend in its notice of removal that
the pleading of plaintiff that he is limiting his request for
recovery to $75,000 or less does not define the amount in
controversy for jurisdictional purposes because plaintiff's
"current live pleading [does] not 'irrevocably' bind Plaintiff to
a recovery of $75,000 or less, as required to defeat federal
jurisdiction."
C.

Id. at 7, '20.

The Motion to Remand
On December 19, 2014, plaintiff filed his motion to remand,

supporting brief, and supporting appendix.

Included in the

supporting appendix was a statutory declaration of plaintiff in
which he explained that the termination of his employment was a
blow to his self-confidence, and put stress on his family, and
that while he is seeking mental anguish and inconvenience
damages, he has not sought the aid of a medical provider or
counselor.

Mot., App. at 5-6.

He concluded by saying:

I only seek compensatory damages, such as mental
anguish and inconvenience damages.
This will allow me to have my day in Court in an
attempt to hold DynCorp responsible for its unlawful
discrimination. That is my primary goal in this case,
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and the recovery of any damages is secondary. It is my
hope DynCorp will understand that people like myself
who work hard and spend approximately a third of their
day working to advance DynCorp's interest deserve to be
treated with respect and in accordance with the law.
I irrevocably limit my recovery of damages for the
harms and losses I have sustained as set forth in my
First Amended Petition to $75,000.
Id. at 6.
Plaintiff takes the position in his motion to remand that he
has so limited his damage claims that the face of his amended
pleading, even when considered in the context of defendant's
affidavit concerning his level of compensation, does not provide
defendant the evidence it would need for it to carry its burden
of proving that the amount in controversy is sufficient to
satisfy the diversity jurisdiction requirement. 1
D.

Defendant's Response
On January 8, 2015, defendant filed its response in

opposition to the motion to remand, making essentially the same
arguments defendant made in its notice of removal in support of
its contention that the court has subject matter jurisdiction.

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"[T]he burden of establishing jurisdiction rests upon the party seeking to invoke it and cannot be
placed upon the adversary who challenges it." Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252,
253-54 (5th Cir. 1961).
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II.
Defendant Has Not Carried Its Burden to Prove That
the Court Has Subject Matter Jurisdiction
The appearance is that plaintiff has done exactly what the
Supreme Court said was proper to be done when it said that "if
[the plaintiff] does not desire to try his case in the federal
court he may resort to the expedient of suing for less than the
jurisdictional amount, and though he would be justly entitled to
more, the defendant cannot remove."

St. Paul Mercury Indem. Co.

v. Red Cab Co., 303 U.S. 283, 294 (1938).
The court has taken into account the opinion of the Fifth
Circuit in De Aguilar v. Boeing Co., 47 F.3d 1404 (5th Cir.
1995), in which the Fifth Circuit, after making reference to the
quoted language of the Supreme Court in St. Paul Mercury, added
that "[t]he face of the plaintiff's pleading will not control if
made in bad faith."

De Aguilar, 47 F.3d at 1410 (emphasis

added) .
There is nothing in the record that would support a finding
by the court that plaintiff was acting in bad faith when he chose
to limit the elements of damage for which he is seeking recovery
in order to avoid causing the amount in controversy to be in
excess of the jurisdictional amount for diversity purposes.

As

the Supreme Court suggested, tailoring the recovery sought in a

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pleading in such a way to avoid federal court jurisdiction is a
perfectly legitimate thing to do.

For all that appears in the

record, plaintiff's amended pleading was a good faith pleading of
elements of damages and of a maximum amount of damages sought.
The strong language in the amended complaint limiting elements of
recovery and the request for relief to $75,000 was fortified by
plaintiff's declaration that he irrevocably limited his recovery
of damages to $75,000.

Plaintiff's declaration is the only

evidence before the court bearing on the sincerity of plaintiff's
amended pleading.
As the Fifth Circuit explained in De Aguilar:
[T]he plaintiff's claim remains presumptively correct
unless the defendant can show by a preponderance of the
evidence that the amount in controversy is greater than
the jurisdictional amount. The preponderance burden
forces the defendant to do more than point to a state
law that might allow the plaintiff to recover more than
what is pled. The defendant must produce evidence that
establishes that the actual amount in controversy
exceeds [$75, 000] .
Id. at 1412 (footnote omitted & underlining added).
Defendant has not produced any evidence that establishes
that the actual amount in controversy exceeds $75,000.

The mere

fact that if plaintiff had pleaded elements of damage that
plaintiff could have pleaded, but chose not to do so, there would
be the potential that the plaintiff could recover in excess of
$75,000 is not sufficient.

As the Fifth Circuit said in De
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Aguilar, plaintiff's claim remains presumptively correct if the
defendant does not show by a preponderance of the evidence that
the amount in controversy is greater than the jurisdictional
amount.

As noted above, the only evidence bearing on the

genuineness of the allegations of the amended complaint is
plaintiff's declaration.
Of pertinence is the following language used by the Fifth
Circuit in De Aguilar:
In the case sub judice, plaintiffs also attached
to the original state court petition an attorney
affidavit that purported to limit the amount of damages
recoverable.
The federal district court reasoned,
however, that the plaintiffs could not effectively
limit the amount of damages they could obtain unless
they had the authority to bind the estates by limiting
damages.
In order to do so, they had to be the legal
representatives or legal heirs of the estates.
Id. at 1413 {emphasis added).

The implication of that language

is that if the actual party-in-interest in the litigation had
provided an affidavit {or declaration) limiting the amount of
damages recoverable, such an affidavit {or declaration) would be
a proper matter for the court to consider in determining the
amount in controversy. 2

Here, the plaintiff himself has given a

declaration saying that he "irrevocably limit[s]

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[his] recovery

The Fifth Circuit has given effect to a post-removal affidavit when the jurisdictional amount
question is unresolved. See De Aguilar, 47 F.3d at 1406 (citing Asociacion Nacional de Pescadores v.
Dow Quimica de Colombia, S.A., 988 F.2d 559 (5th Cir. 1993).
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of damages for the harms and losses [he has]

sustained as set

forth in his First Amended Petition to $75,000."
6.

Mot., App. at

The court recognizes that in De Aguilar the Fifth Circuit was

discussing a stipulation or affidavit that was filed with the
complaint.

In the instant action, the amended pleading itself

was in the form of a stipulation as to the limit on the elements
and amount of damages that would be recoverable by the plaintiff.
The court does not take the post-removal declaration of plaintiff
as an attempt after the case was removed to change his state
court pleading.

Rather, the court takes the declaration of

plaintiff to be evidence of his good faith in limiting his state
court ad damnum to $75,000.
Defendant argues that damages were improperly pleaded by
plaintiff in his amended pleading in violation of Rule 47 of the
Texas Rules of Civil Procedure.

However, defendant has not

provided authority that Rule 47 has any applicability to
plaintiff's amended pleading.

The opening sentence of Rule 47

makes clear that it applies only to an original petition, not an
amended petition, by saying in the opening phrase "[a]n original
pleading which sets forth a claim for relief, whether an original
petition, counterclaim, cross-claim, or third party claim shall
contain."
added).

Vernon's Ann. Texas Rules Civ.Proc., rule 47 (emphasis
Defendant has cited no authority, and the court has
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found none, that would suggest that the pleading requirements of
Rule 47 apply to an amended petition. 3
Even if the court were to assume, arguendo, that the
pleading restriction in Rule 47 had applicability to plaintiff's
amended state court pleading, defendant nevertheless would not
have satisfied its burden to establish the requisite
jurisdictional amount.

On point here is the language of the

Fifth Circuit in De Aguilar that:
[A] plaintiff, in a case for unliquidated damages,
cannot, absent a further showing, avoid removal by
pleading for damages under the jurisdictional amount
where a state rule prevents such pleading and where
defendants are able to show that it is facially
apparent that the amount in controversy exceeds
[$75,000].
47 F.3d at 1413

(emphasis added}.

Defendant has not shown that "it is facially apparent that
the amount in controversy exceeds [$75,000] ."

Id.

The

allegations in the amended petition do not seek recovery of
elements of damage that necessarily would exceed $75,000, and
plaintiff clearly pleaded that he was not expecting to recover

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In a sense, Rule 4 7 affirmatively indicates that its pleading restriction is inapplicable to an
amended petition. The Rule provides that: "upon special exception the court shall require the pleader to
amend so as to specify the maximum amount claimed." Tex. R. Civ. Proc. 47. When plaintiff amended
his state court pleading, he, in a sense, did voluntarily what Rule 4 7 said he could be required to do--he
amended his pleading to eliminate elements of damage that might be used by the defendant in an attempt
to remove the case to federal court based on diversity jurisdiction.

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any more than $75,000.

As noted above, the only evidence bearing

on the genuineness of that pleading is plaintiff's declaration.
The court has no reason to believe that plaintiff will not
be irrevocably bound by the $75,000 limit on damages he pleaded
in his amended pleading when considered together with the
statement he made under penalty of perjury that he is irrevocably
limiting his recovery of damages to $75,000. 4

Defendant has not

called the court's attention to any authority, nor has the court
found any, that under the circumstances of this case plaintiff
would not be irrevocably bound by his amended pleading and his
declaration not to receive an award of damages in excess of
$75,000.

The fact that plaintiff could have pleaded a case that

would cause the amount in controversy to exceed the
jurisdictional amount is not controlling.

Plaintiff chose not to

do so, as the Supreme Court said was proper.
303

u.s.

St. Paul Mercury,

at 294.

Having not been persuaded by defendant that the diversity
jurisdictional amount exists in this case, the court is ordering
the case remanded.

4

When plaintiff's amended pleading and declaration are considered, this court cannot imagine
any court awarding plaintiff in this action more than $75,000. Nor can the court imagine plaintiff or his
counsel, considering the commitments they have made, seeking or accepting an award of more than
$75,000. In any event, if that were to occur, defendant would have the right again to remove to federal
court, and that right of removal would exist even if the event that prompted it occurred more than one
year after commencement of this action in state court. See 28 U.S.C. § 1446(c)(3)(B).
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III.
Order
Therefore,
The court ORDERS that the above-captioned action be, and is
hereby, REMANDED to the state court from which it was removed.
SIGNED January 12, 2015.

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