United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN, UNITED STATES DISTRICT JUDGE
the Court is the plaintiff's motion to remand on the
ground that the Court lacks subject matter jurisdiction.
Additionally, the plaintiff requests reasonable costs and
attorney's fees incurred as a result of the removal,
under 28 U.S.C. § 1447(c). For the following reasons the
motion, as to remand, is GRANTED, and the request for costs
and fees is DENIED.
environmental tort litigation arises from the production of
neoprene, which allegedly exposes those living in the
vicinity of the manufacturing plant to concentrated levels of
chloroprene well above the upper limit of acceptable risk,
resulting in a risk of cancer more than 800 times the
national average. Several residents living in what
environmentalists and the media have dubbed “Cancer
Alley” filed this lawsuit seeking injunctive relief in
the form of abatement of chloroprene releases from their
industrial neighbor, the Pontchartrain Works facility, the
only facility in the United States still manufacturing a
synthetic rubber called neoprene, which is made from
chloroprene, and which the Environmental Protection Agency
has classified as a “likely human carcinogen.”
plaintiff in the present motion, Lydia Gerard, is a resident
of Reserve, Louisiana. On April 10, 2018, the plaintiff filed
a petition for damages in the 40th Judicial District Court
for St. John the Baptist Parish in which she seeks damages
from defendants Denka Performance Elastomer LLC
(“DPE”) and E.I. du Pont de Nemours and Company
(“DuPont”) caused by their alleged excessive
emissions of chloroprene. With her petition for damages, the
plaintiff filed a binding pre-removal stipulation
(“stipulation”) which stipulated, inter alia,
that she would not accept or seek to recover any portion of a
judgment or award in excess of $50, 000.
8, 2018, DuPont filed its notice of removal to this Court
based on diversity of citizenship jurisdiction under 28
U.S.C. § 1332(a). DPE consented and the matter was
consolidated with Taylor et al v. Denka Performance
Elastomer et al, Civil Action No. 17-7668. The plaintiff
now moves to remand her lawsuit back to state court.
case has been removed, the removing party bears the burden of
proving that the court has jurisdiction to hear the case.
Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815
(5th Cir. 1993). Should there be any doubt as to the
propriety of removal, it should resolved in favor of remand.
Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.
2008). If the matter is removed based on diversity of
citizenship, the amount in controversy must exceed $75,
000.00, complete diversity must exist, and “none of the
parties in interest properly joined and served as defendants
is a citizen of the State in which such action is
brought.” 28 U.S.C. § 1441(b).
parties do not dispute that complete diversity exists in this
matter and, thus, the only question presented is whether the
plaintiff's stipulation is sufficiently binding to limit
her total recovery to an amount less than $75, 000.00.
Louisiana law, plaintiffs in state courts may not plead a
specific value of damages. La. Code Civ. P. 893. So, if a
case filed in a Louisiana state court is removed to federal
court on the basis of diversity, the removing defendant must
prove by a preponderance of the evidence that the amount in
controversy exceeds $75, 000.00. De Aguilar v. Boeing
Co., 47 F.3d 1404, 1412 (5th Cir. 1995). A defendant may
meet this burden by showing that it is facially apparent that
the amount in controversy exceeds $75, 000.00. Id.;
See Williams v. Axial Corp., No. 2:15-cv-440, 2015
WL 5638080, at *2 (W.D. La. Sept. 24, 2015).
defendant meets this burden, remand is still proper if the
plaintiff demonstrates to a “legal certainty”
that its recovery will not exceed the jurisdictional amount.
De Aguilar, 47 F.3d at 1412. A plaintiff may meet
this burden by citing in her petition to a state law that
limits recovery above a certain amount, or, absent such a
statute, a plaintiff may file a binding stipulation or
affidavit about the damages value. Id. A
plaintiff's filing after the defendant has removed the
case is irrelevant. Id. (citing In re Shell Oil
Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curiam).
plaintiff moves to remand the action to state court on the
grounds that this Court lacks subject matter jurisdiction
under 28 U.S.C. § 1332(a). Specifically, the plaintiff
contends that because she filed with her petition a binding
pre-removal stipulation which waives her rights to any
damages in excess of $50, 000.00, the amount in controversy
will not, and does not, exceed $75, 000.00. The plaintiff
adds that the stipulation is broad and candidly renounces
“any right to enforce or collect any judgment or award
in excess of $50, 000.00.” She contends that her