Opinion

Moss v. Popeyes Louisiana Kitchen, Inc.

Court
District Court, E.D. Louisiana
Filed
Oct 23, 2019
Cited by
0 cases
Authority
More cited than 22.2%

“It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”

How later courts described this case

  • “It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

OCEOLA MOSS CIVIL ACTION

v. NO. 19-12428

POPEYES LOUISIANA KITCHEN, INC. SECTION "F"

ORDER AND REASONS

Before the Court is the plaintiff’s motion to remand. For

the reasons that follow, the motion to remand is DENIED.

Background

This litigation arises out of a slip-and-fall accident

outside of a Popeyes Louisiana Kitchen.

On 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.

1

On 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.

I.

A.

Although 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)).

B.

A 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.

2

§ 1332(a)(1). The only dispute here is whether the amount in

controversy requirement is met.

To 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.

When 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 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

3

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 prove "by setting 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. However, 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 (1999).

Finally, if the 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

4

removal must file a binding stipulation or affidavit with their

complaints; once a defendant has removed the case, St. Paul makes

later filings irrelevant.” De Aguilar, 47 F.3d at 1412 (quoting In

re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curiam).

II.

In support of her contention that the amount in controversy

requirement is not satisfied, the plaintiff submits a stipulation

as to damages, in which she “stipulates that the amount in

controversy does not exceed $75,000.00.” The stipulation was filed

along with the motion to remand on October 1, 2019. The defendants

counter that, at the time of removal, the amount in controversy

requirement was met based on summary judgment-type evidence.

Considering the quantity and quality of damages alleged in her

state court petition, the defendants submit that the plaintiff’s

post-removal stipulation regarding the amount in controversy does

not divest this Court of its properly established jurisdiction.

The Court agrees.

The Court finds that the defendants’ summary judgment-type

evidence is sufficient in showing that the amount in controversy

exceeds $75,000. The plaintiff suffered a broken kneecap in her

accident and seeks damages for her injury. The defendant cites

multiple Louisiana state court cases consistently awarding damages

5

in excess of $75,000 where the plaintiff suffered a broken

kneecap.1 Based on this evidence, plaintiffs who suffer injuries

similar to the plaintiff’s here typically receive an award of

damages in excess of $75,000. This summary judgment-type evidence

fulfills the amount in controversy requirement for federal

jurisdiction under 28 U.S.C. § 1332. The plaintiff offers no

evidence to counter the defendants’.

The plaintiff submitted with her motion to remand a

stipulation that the amount in controversy does not exceed $75,000.

However, this stipulation is not sufficient to prevent removal.

The plaintiff must “make all information known at the time [she]

files the complaint.” De Aguilar, 47 F.3d at 1412. “[E]vents

occurring subsequent to removal which reduce the amount

recoverable, whether beyond the plaintiff’s control or by his own

volition, do not oust the district court’s jurisdiction once it is

attached.” St. Paul, 303 U.S. at 293. A binding stipulation must

be filed with a complaint as once the case has been removed later

1 See Todd v. Delta Queen Steamboat, Co., 2007 1518 (La. App. 4

Cir. 8/6/08); 15 So. 3d 107 (plaintiff awarded $120,000 in damages

where he broke his knee hitting it on a loaded metal cart); Millet

v. Evangeline Health Care, Inc., 02-1020 (La. App. 5 Cir. 1/28/03);

839 So. 2d 357 (plaintiff awarded $100,000 in general damages where

she slipped and fell and broke her kneecap); Kelley v. Great

Atlantic & Pacific Tea Co., Inc., 89-51 (La. App. 5 Cir. 6/7/89);

545 So. 2d 1099 (plaintiff awarded $125,000 in general damages

where she broke her knee from slipping and falling in a store).

6

findings become irrelevant. De Aguilar, 47 F.3d at 1412. The

plaintiff filed her unsworn, non-binding stipulation on damages

with her motion to remand, not with her original complaint. And,

notably, the stipulation does not “irrevocably bind” the plaintiff

to recover less than $75,000 and is thus insufficient to prove to

a legal certainty that her recovery will not exceed $75,000.?

Accordingly, IT IS ORDERED: that the plaintiff’s motion to

remand is DENIED.

New Orleans, Louisiana, October 23, 2019

UNITED STATES DISTRICT JUDGE

2 Of course if plaintiff truly believes her claim is worth less

than $75,000, her case will settle for less than $75,000.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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