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. For the
reasons that follow, the motion to remand is DENIED.
litigation arises out of a slip-and-fall accident outside of
a Popeyes Louisiana Kitchen.
March 28, 2018, Oceola Moss was exiting Popeyes Louisiana
Kitchen when she stepped into a pothole and fell. Nearly one
year later, Moss sued Liberty Mutual Fire Insurance, Co. and
Popeyes Louisiana Kitchen, Inc. in state court, alleging that
the defendants' negligence caused her to sustain
injuries. Moss suffered a broken kneecap and seeks to recover
for various damages, including past, present, and future pain
and suffering, mental anguish and emotional pain, and medical
expenses, as well as loss of enjoyment of life.
September 4, 2019, Liberty Mutual and Popeyes 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 that “federal
jurisdiction exists and removal was proper.”
Manguno v. Prudential Prop. & Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002); see also Jernigan v.
Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993).
The removal statute should be construed in favor of remand
and “any ambiguities are construed against
removal.” Manguno, 276 F.3d at 723 (citing
Acuna v. Brown & Root, Inc., 200 F.3d 335, 339
(5th Cir. 2000)).
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 plaintiff and all
of the properly joined defendants, and the amount in
controversy must exceed $75, 000. See 28 U.S.C.
§ 1332(a)(1). The only dispute here is whether the
amount in controversy requirement is met.
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, 276
F.3d at 723 (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 her prayer for relief. La. Code
Civ. Proc. art. 893.
the plaintiff has, therefore, 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