United States District Court, E.D. Louisiana
the Court is the plaintiff's motion to remand. For the
reasons that follow, the motion is GRANTED.
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
14, 2017, Rashad Hatcher was sitting in his vehicle parked in
front of the Sewerage and Water Board's mechanic shop at
2900 Peoples Avenue in New Orleans, Louisiana. When a vehicle
being operated by Ronald Swanson made a right turn onto
Peoples Avenue, it struck and dragged Mr. Hatcher's
vehicle. Unsure of the owner of the offending vehicle,
Hatcher sued Clean Harbors Environmental Services, Inc.,
Safety-Kleen Systems, Inc., Oar Trucking, Inc., OFR Trucking,
Inc., Ronald Swanson, and Ace American Insurance Company in
state court. Although he alleges no particular facts
concerning manifestation of injury, Hatcher alleges that the
defendants' negligence caused an assortment of damages.
On April 12, 2018, Clean Harbors, Safety Kleen, and Ace
removed the lawsuit to this Court, invoking the Court's
diversity jurisdiction. The plaintiff now moves to remand.
the plaintiff challenges removal in this case, the removing
defendant carries the burden of showing the propriety of this
Court's removal jurisdiction. See Jernigan v. Ashland
Oil, Inc., 989 F.2d 812, 815 (5th Cir.),
cert. denied, 510 U.S. 868, 114 S.Ct. 192, 126
L.Ed.2d 150 (1993); Willy v. Coastal Corp., 855 F.2d
1160, 1164 (5th Cir. 1988). "Because removal raises
significant federalism concerns, the removal statute is
strictly construed." Gutierrez v. Flores, 543
F.3d 248, 251 (5th Cir. 2008). Further, "any doubt as to
the propriety of removal should be resolved in favor of
defendant may generally remove a civil action filed in state
court if the federal court has original jurisdiction over the
case -- that is, if the plaintiff could have brought the
action in federal court from the outset. See 28
U.S.C. § 1441(a). To exercise diversity jurisdiction,
complete diversity must exist between the plaintiffs and all
of the properly joined defendants, and the amount in
controversy must exceed $75, 000. See 28 U.S.C.
determine whether it has jurisdiction, the Court must
consider the allegations in the state court petition as they
existed at the time of removal. See Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.
2002)(citing Cavallini v. State Farm Mut. Auto Ins.
Co., 44 F.3d 256, 264 (5th Cir. 1995)). Louisiana law
requires that a plaintiff include "no specific amount of
damages" in his prayer for relief. La. Code Civ. Proc.
the plaintiff has alleged an indeterminate amount of damages,
the removing party must prove by a preponderance of the
evidence that the amount in controversy exceeds $75, 000.
Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th
Cir. 1999); see also De Aguilar v. Boeing Co., 47
F.3d 1404, 1412 (5th Cir. 1995). This showing may be made by
either (1) showing that it is facially apparent that the
plaintiff's claims likely exceed $75, 000 or (2) setting
forth "summary judgment type evidence" of facts in
controversy that support a finding of the jurisdictional
amount. Manguno, 276 F.3d at 723; Luckett v. Delta
Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
"[I]f it is facially apparent from the petition that the
amount in controversy exceeds $75, 000 at the time of
removal, post-removal affidavits, stipulations, and
amendments reducing the amount do not deprive the district
court of jurisdiction." Gebbia v. Wal-Mart Stores,
Inc., 233 F.3d 880, 883 (5th Cir. 2000). If the removing
defendant cannot show that the amount in controversy is
facially apparent, it may be able to "set forth the
facts in controversy - preferably in the removal petition,
but sometimes by affidavit - that support a finding of the
requisite amount." Luckett, 171 F.3d at 298. If
the petition is ambiguous as to whether the alleged damages
surpass the jurisdictional amount in controversy, the Court
may consider a post-removal affidavit that clarifies the
original complaint. Asociación Nacional de
Pescadores a Pequeña Escala o Artesanales de Colombia
(ANPAC) v. Dow Química de Colombia, 988 F.2d 559,
565 (5th Cir. 1993), abrogated on other grounds by
Marathon Oil Co. v. Ruhgras, 145 F.3d 211, 214 (5th Cir.
1998), rev'd on other grounds, 526 U.S. 574
removing party satisfies its burden, the plaintiff can only
defeat removal by showing that it is "legally certain
that his recovery will not exceed the amount stated in the
state complaint." De Aguilar, 47 F.3d at 1412;
see St. Paul Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283, 289 (1938) ("It must appear to a legal
certainty that the claim is really for less than the
jurisdictional amount to justify dismissal."). Absent a
statute that restricts recovery, "[l]itigants who want
to prevent removal must file a binding stipulation or
affidavit with their complaints; once a defendant has removed
the case, St. Paul ...