United States District Court, E.D. Louisiana
ORDER & REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Ebony Harris'
(“Plaintiff”) Motion to Remand (R. Doc.
7), Defendant Winn Dixie Montgomery, LLC's (“Winn
Dixie”) opposition thereto (R. Doc. 9), and
Plaintiff's reply (R. Doc. 14). Having considered the
motion and legal memoranda, the record, and the applicable
law, the Court finds that the motion should be GRANTED.
AND PROCEDURAL BACKGROUND
filed the instant suit in Orleans Parish Civil District Court
in New Orleans, Louisiana. (R. Doc. 1-4.) Made defendants
were Winn Dixie Store #1430 and ABC Insurance Company.
Id. at 2. Plaintiff alleges that she was injured
when she slipped and fell in a puddle of water near the Winn
Dixie store's registers. Id. Plaintiff claims
damages for an injured right leg, an injury to her back, and
any other injuries that may manifest prior to trial.
Id. at 3. Plaintiff seeks compensation for past and
future medical expenses, lost wages, and pain and suffering.
Id. On December 22, 2016, Winn Dixie removed this
case to federal court on the basis of diversity jurisdiction,
claiming complete diversity of citizenship and an amount in
controversy greater than $75, 000. (R. Doc. 1 at 4.) On
January 3, 2017, Plaintiff filed the instant motion to remand
claiming that Winn Dixie has failed to prove by a
preponderance of the evidence that the amount in controversy
exceeds $75, 000. (R. Doc. 7.) In response, Winn Dixie argues
that Plaintiff has not affirmatively renounced the right to
accept a judgment in excess of $75, 000, and thus the amount
in controversy must exceed $75, 000. See (R. Doc.
9.) Plaintiff's Motion to Remand is now before
the Court on the briefs and without oral argument.
defendant may remove to federal court “any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction.” 28 U.S.C.
§ 1441(a). “A federal district court has subject
matter jurisdiction over a state claim when the amount in
controversy is met and there is complete diversity of
citizenship between the parties.” Mumfrey v. CVS
Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013)
(citing 28 U.S.C. § 1332(a)). The amount in controversy
required by § 1332(a) is currently an amount in excess
of $75, 000. Id. The Court considers the
jurisdictional facts that support removal as of the time of
removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d
880, 883 (5th Cir. 2000). Because removal raises significant
federalism concerns, any doubt about the propriety of removal
must be resolved in favor of remand. Gasch v. Hartford
Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir.
the petition is silent on the exact amount of claimed
damages, the removing party bears the burden of proving
“by a preponderance of the evidence that the amount in
controversy exceeds $75, 000.” Grant v. Chevron
Phillips Chem. Co., 309 F.3d 864, 868 (5th Cir. 2002)
(citing Manguno v. Prudential Prop. & Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir. 2002)). The removing
party can satisfy this burden either: “(1) by
demonstrating that it is ‘facially apparent' from
the petition that the claim likely exceeds $75, 000 or (2) by
setting forth the facts in controversy- preferably
in the removal petition, but sometimes by affidavit- that
support a finding of the requisite amount.”
Id. (quoting Allen v. R & H Oil & Gas
Co., 63 F.3d 1326, 1335 (5th Cir.1995)). “Removal,
however, cannot be based simply upon conclusory
allegations.” Allen, 63 F.3d at 1335.
removing party can establish by a preponderance of the
evidence that the amount in controversy exceeds the requisite
amount, “[t]he plaintiff can defeat diversity
jurisdiction only by showing to a ‘legal certainty'
that the amount in controversy does not exceed $75,
000.” Grant, 309 F.3d at 869 (citing De
Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir.
1995)). It is well settled that this is not a burden-shifting
exercise; rather, the “plaintiff must make all
information known at the time he files the complaint.”
Id. (quoting De Aguilar, 47 F.3d at 1412).
parties do not contest that their citizenship is completely
diverse. Rather, the only issue before the Court is whether
the amount in controversy exceeds $75, 000. Plaintiff filed
her complaint in Louisiana state court, and generally,
Louisiana does not permit plaintiffs to plead a specific
amount of money damages. Hammel v. State Farm Fire &
Cas. Co., No. 06-7470, 2007 WL 519280, at *1 (E.D. La.
Feb. 14, 2007). Plaintiff merely alleges unspecific injuries
to her right leg and back, and she seeks compensation for
medical expenses, lost wages, and pain and suffering. (R.
Doc. 1-4 at 3.) Consequently, it is not facially apparent
from Plaintiff's petition that the claim likely exceeds
$75, 000. Thus, Winn Dixie must submit evidence and prove by
a preponderance of the evidence that the amount in
controversy exceeds $75, 000. Grant, 309 F.3d at
868; De Aguilar, 47 F.3d at 1412. Winn Dixie has not
submitted any evidence that Plaintiff's damages may
exceed $75, 000. Winn Dixie's Petition for Removal only
argues that the amount in controversy exceeds $75, 000
because Plaintiff has not agreed that it will remit or waive
any judgment in excess of $75, 000. (R. Doc. 1 at 3.) Winn
Dixie did not submit any additional summary-judgment-type
evidence to support its contention. See Allen, 63
F.3d at 1335-36 (noting that when determining amount in
controversy the court may consider the facts in the removal
petition and those set forth in an affidavit or stipulation).
Rather, Winn Dixie argues that because Plaintiff has refused
to remit or waive the excess of any judgment rendered in
state court above $75, 000 that it has satisfied its burden
of proving that the amount in controversy exceeds $75, 000.
However, a plaintiff must only affirmatively renounce the
right to accept a judgment in excess of $75, 000 “for
[her] pre-removal state court pleadings and stipulations to
bind [her]” to defeat removal after the removing
defendant proves by a preponderance of the evidence that the
amount in controversy exceeds $75, 000. See Hammel,
2007 WL 519280, at *2 (noting that if the defendant meets its
burden of showing the requisite amount in controversy a
plaintiff can defeat removal by affirmatively renouncing the
right to accept a judgment in excess of $75, 000). As
explained, Winn Dixie has failed to sustain its burden of
proving that the requisite amount in controversy is in excess
of $75, 000. Accordingly, this matter must be remanded to
Orleans Parish Civil District Court in New Orleans,
IT IS HEREBY ORDERED that Plaintiff's Motion to
Remand (R. Doc. 7) is GRANTED. This matter is hereby
REMANDED to Orleans Parish ...