United States District Court, E.D. Louisiana
ORDER AND REASONS
this Court is Plaintiff's, Jamal Thomas, “Motion to
Remand to State Court” and “Motion to Expedite
the Motion to Remand” (Rec. Docs. 61 and 63), seeking
remand to the 23rd Judicial District for the Parish of St.
James, State of Louisiana, alleging that this Court lacks
subject matter jurisdiction. Defendant, Rain CII Carbon,
submit a Response in Opposition (Rec. Doc. 74), arguing
complete diversity and that Plaintiff's claim is facially
and factually over the jurisdictional amount. For the reasons
stated herein, IT IS ORDERED that
Plaintiff's Motion to Remand (Rec. Doc. 61) is
IS FURTHER ORDERED that Plaintiff's Motion to
Expedite the Motion to Remand (Rec. Doc. 63) is
DISMISSED as Moot.
AND PROCEDURAL HISTORY
case stems from an accident that occurred on May 26, 2016,
when Plaintiff was operating a dump truck at Defendant Rain
CII Carbon's (“Defendant Rain”) facility in
Gramercy, Louisiana. Rec. Doc. 2-1 at 1. Plaintiff alleges
that he was instructed to drive the dump truck, in reverse,
onto a ramp in order to unload coal. Rec. Doc. 6. While
attempting to back up onto the ramp, the rear passenger
wheels slid off the edge of the ramp, resulting in the dump
truck overturning. Id. Plaintiff contends that the
ramp was defectively designed and/or improperly constructed
"as it did not have railings on either side to prevent
vehicles from tipping over the edge of the surface of the
ramp . . . ." Rec. Doc. 6.
filed suit on May 19, 2017, in 23rd Judicial District Court
for the Parish of St. James, naming Defendant Rain. Rec. Doc.
2-1. Plaintiff sought damages for past, present and future:
physical pain and suffering; mental pain and suffering;
medical expenses; inconvenience; property damages; lost
wages; loss of earning capacity; disability; and all damages
allowed under Louisiana law. Rec. Doc. 2-1 at 3. On June 23,
2017, Defendants timely filed their Notice of Removal with
this Court, maintaining that federal subject matter
jurisdiction exists under 28 U.S.C. § 1332 - averring
that there is diversity of citizenship and that it is
facially apparent from Plaintiff's Petition that the
amount in controversy exceeds $75, 000. Rec. Doc. 2. In
discussing the amount in controversy, Defendant Rain
references Plaintiff's allegation that he was
"severely injured." Specifically, Defendant Rain
notes that Plaintiff seeks past and present lost wages for
two years, at a rate of $13.00 - $16.00 when employed, which
would range from $54, 080.00 - $66, 560.00. Defendant Rain
also points to the extensive list of damages sought by
Plaintiff, as well as the fact that Plaintiff requests
medical expenses for his alleged injuries in the amount of
$34, 057.00. Rec. Doc. 74 at 9-10; Rec. Doc. 74-5, Summary of
Medical Expenses and medical billing records.
March 22, 2018, Plaintiff filed a stipulation of damages.
Rec. Doc. 55. Subsequently, on March 29, Plaintiff filed the
instant motion to remand to state court. Rec. Doc. 61.
party may remove an action from state court to federal court
if the action is one over which the federal court possesses
subject matter jurisdiction.” Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002) (citing 28 U.S.C. § 1441(a)). “The removing
party bears the burden of showing that federal jurisdiction
exists and that removal was proper.” Id.
(citing De Aguilar v. Boeing Co., 47 F.3d 1404, 1408
(5th Cir. 1995); Jernigan v. Ashland Oil Inc., 989
F.2d 812, 815 (5th Cir. 1993) (per curiam); Willy v.
Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988)).
“To determine whether jurisdiction is present for
removal, we consider the claims in the state court petition
as they existed at the time of removal.” Id.
(citing Cavallini v. State Farm Mut. Auto Ins. Co.,
44 F.3d 256, 264 (5th Cir. 1995)). “Any ambiguities are
construed against removal because the removal statute should
be strictly construed in favor of remand.” Id.
(citing Acuna v. Brown & Root, Inc., 200 F.3d
335, 339 (5th Cir. 2000)). The Court must remand the case to
state court “[i]f at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction[.]” 28 U.S.C. § 1447(c).
Amount in Controversy
Fifth Circuit precedent, the burden of a defendant removing
based on 28 U.S.C. § 1332 to show that the amount in
controversy is sufficient to support federal jurisdiction
differs depending on whether the plaintiff's complaint
alleges a specific amount of monetary damages, as this figure
will generally control. See Allen v. R & H Oil &
Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). When a
defendant is removing from a Louisiana state court, where the
plaintiff is not permitted to plead a specific amount of
money damages, the removing defendant is required to prove by
a preponderance of the evidence that the amount in
controversy exceeds $75, 000. Id.; see also De
Aguilar, 47 F.3d at 1412. The defendant does this by
either showing that it is facially apparent that the
plaintiff's claims exceed the jurisdictional amount or by
setting forth the facts in dispute supporting a finding that
the jurisdictional amount is satisfied. Allen, 63
F.3d at 1335.
defendant meets its burden of showing the requisite amount in
controversy, the plaintiff can defeat removal only by
establishing with legal certainty that the claims are for
less than $75, 000. De Aguilar, 47 F.3d at 1411-12.
To prevent removal, plaintiffs may file a binding stipulation
or affidavit in conjunction with their state court petition,
but it must affirmatively renounce the right to accept a
judgment in excess of $75, 000 in order to be binding.
Id. at 1412; Crosby v. Lassen Canyon
Nursery, Inc., No. CV-02-2721, 2003 WL 22533617, at *3
(E.D. La. Nov. 3, 2003). As such, it is well-established in
the Fifth Circuit that courts may always consider pre-removal
other hand, the Fifth Circuit holds that post-removal
affidavits or stipulations of the plaintiff may be considered
only in limited circumstances. See Asociacion Nacional de
Pescadores aPequena Escala O Artesanales de
Colombia (ANPAC) v. Dow Quimica deColombia
S.A., 988 F.2d 559, 566 (5th Cir. 1993), abrogated
byMarathon Oil Co. v. Ruhrgas, 145 F.3d 211
(5th Cir. 1998). Specifically, they may be considered to
clarify the amount in controversy as of the date of removal
when it is ambiguous. Gebbiav. Wal-Mart ...