United States District Court,
E.D. Louisiana.
Cynthia GIBSON
v.
CANAL INSURANCE CO., et al.
March 18, 2004.
March 22, 2004.
DUVAL, J.
Before the Court is plaintiff’s Motion to Remand (Rec.Doc. 3) on the grounds that removal was improper due to an insufficient amount in controversy for diversity purposes. Having considered the pleadings, memoranda, and the applicable law, the Court finds that there is no merit in the motion and DENIES plaintiff’s Motion to Remand.
This instant matter involves an automobile accident which occurred on July 31, 2003 between plaintiff Cynthia Gibson and defendant Tommie Lee Lewis. Lewis, an employee of defendant Tri-State Septic Tank Company, Inc., was operating an eighteen (18) wheeler tractor trailer owned by defendant Massey Industrial Oil Company. On October 24, 2003, plaintiff filed a Petition in state court. The matter was removed to this Court on December 22, 2003. On January 12, 2004, plaintiff filed the instant Motion to Remand, which was set for hearing on February 4, 2004 and taken on the papers. Plaintiff’s request for remand is premised on the contention that the jurisdictional amount as set forth in 28 U.S.C. § 1441 was not established.
A defendant may remove a case filed in state court if the district court has original jurisdiction. 28 U.S.C. § 1441(a). Original jurisdiction exists when the parties are citizens of different states and the amount in controversy exceeds $75,000. 28 U .S.C. § 1332(a). Plaintiff filed a Motion to Remand on the grounds that this Court lacked subject matter jurisdiction, arguing that the burden of proof is on defendants to prove that the amount in controversy requirement is satisfied. Defendants opposed the motion contending that the amount in controversy is more than $75,000.
Under Louisiana law, a plaintiff is not allowed to allege a specific dollar amount in damages. La.Code Civ. Pro. art 893. Where an indeterminate amount of damages is sought, a removing defendant need only prove, by a preponderance of the evidence, that the jurisdictional amount has been met. De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.1993)(“De Aguilar I” ). A defendant can prove the amount either by showing that it is facially apparent from the nature and amount of the claims that they are likely to be above the requisite amount, or by setting forth the facts which would support a finding of the requisite amount. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995).
The Court finds that defendants have met their burden of proof. Plaintiff Gibson alleges numerous types of damages, including general and specific damages, impairment of earning capacity, loss of enjoyment of life (past and future), medical specials (past and future), and other general damages. The number of claims, the nature of those claims, and the allegations that plaintiff will continue to suffer damages into the future, all weigh against plaintiff’s argument. It is facially apparent that if all damages alleged in this case are recovered, the amount of the judgment would likely be well in excess of the jurisdictional amount.
The facts in this case only serve to support such a conclusion. The medical expense evidence indicates that plaintiff has received treatment since shortly after the accident for lower back and neck pain as well as for decreased range of motion, spasms, lower back tenderness, and numbness and tingling in her upper and lower extremities. This treatment is ongoing. Plaintiff has also reported a potential disk injury. In addition to general damages for injuries to her mind and body, plaintiff is faced with hospital bills, potentially expensive testing costs, other medical bills. Clearly, her damages are likely to exceed the jurisdictional amount.
Viewing both the petition on its face and the factual underpinnings together leaves no doubt that the amount in controversy is above the jurisdictional amount. Once a defendant has established, by a preponderance of the evidence, that the amount in controversy is sufficient to confer jurisdiction to the federal courts, the burden then shifts back to the plaintiff to show, to a legal certainty, that the claim is really for less than the jurisdictional amount. De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir.1995)(“De Aguilar II” ). Where state law prevents a party from pleading a specified amount of damages (as Louisiana’s law does), and the claim is for unliquidated damages, one way for a plaintiff to satisfy the legal certainty test is to “[f]ile a binding stipulation or affidavit with [the] complaint….” Id. at 1412 (citing In Re Shell Oil Co., 970 F.2d 355, 356 (7th Cir.1992)). As plaintiffs petition contains no such affadavit or stipulation, there is no legal basis to remand this case. Accordingly, for the reasons stated,
IT IS ORDERED that plaintiff’s Motion to Remand (Rec.Doc. 3) is hereby DENIED.
