“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.