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Thomas v. Rain CII Carbon, LLC.

United States District Court, E.D. Louisiana

May 9, 2018

JAMAL THOMAS
v.
RAIN CII CARBON, LLC., ET. AL.

         SECTION “B” (3)

          ORDER AND REASONS

         Before 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 DENIED.

         IT IS FURTHER ORDERED that Plaintiff's Motion to Expedite the Motion to Remand (Rec. Doc. 63) is DISMISSED as Moot.

         FACTS AND PROCEDURAL HISTORY

         This 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.

         Plaintiff 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.

         On 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.

         LAW AND ANALYSIS

         A. Removal

         “A 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).

         B. Amount in Controversy

         Under 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.

         If the 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 stipulations.

         On the 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).[1] Specifically, they may be considered to clarify the amount in controversy as of the date of removal when it is ambiguous. Gebbiav. Wal-Mart ...


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