The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NYKIA YOUNG CIVIL ACTION
VERSUS No. 24-1807
POPEYES LOUISIANA KITCHEN, INC., ET AL. SECTION I
ORDER & REASONS
Before the Court is an amended motion1 to remand the above-captioned matter
to the 24th Judicial District Court for the Parish of Jefferson filed by plaintiff Nykia
Young (“plaintiff”). Defendant Popeyes Louisiana Kitchen, Inc. (“defendant”) opposes
the motion.2 Plaintiff filed a reply.3 For the reasons that follow, the Court grants
plaintiff’s motion to remand.
I. BACKGROUND
This case arises out of an alleged slip and fall that occurred at the Popeyes
located at 3016 Loyola Drive in Kenner, Louisiana.4 Plaintiff filed a petition for
damages in the 24th Judicial District Court for the Parish of Jefferson.5 Plaintiff’s
complaint alleges that she slipped and fell on a wet floor while waiting to receive a
to-go order on August 25, 2023 and that she thereby sustained injuries.6 She claims
that defendant was negligent in failing to keep the floor in a reasonably safe condition
1 R. Doc. No. 15.
2 R. Doc. No. 16.
3 R. Doc. No. 27.
4 R. Doc. No. 1-3, ¶¶ 4, 7.
5 Id. at 1.
6 Id. ¶¶ 4, 7, 13.
and that it is therefore liable for her damages.7 Defendant then removed this matter
to federal court based on diversity of citizenship.8
Plaintiff subsequently filed a motion to remand, arguing that this Court lacks
subject matter jurisdiction because defendant has not demonstrated that the amount
in controversy exceeds $75,000 as required by 28 U.S.C. § 1332 for jurisdiction based
on diversity of citizenship.9 In response, defendant argues that it has adequately met
its burden to demonstrate that the amount in controversy requirement is met.10 It
further argues that plaintiff has failed to rebut defendant’s contention regarding the
amount in controversy and refused to stipulate that plaintiff’s damages do not exceed
$75,000.11
II. STANDARD OF LAW
Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of the United States
for the district and division embracing the place where such action is pending,” unless
Congress provides otherwise. “A federal district court has subject matter jurisdiction
over a state claim when the amount in controversy [exceeds $75,000] and there is
complete diversity of citizenship between the parties.” Mumfrey v. CVS Pharmacy,
Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing 28 U.S.C. § 1332(a)).
7 Id. ¶¶ 11, 15.
8 R. Doc. No. 1.
9 R. Doc. No. 15, at 1–2.
10 R. Doc. No. 16, at 3.
11 Id. at 11–13.
The “party seeking to invoke federal diversity jurisdiction bears the burden of
establishing both that the parties are diverse and that the amount in controversy
exceeds $75,000,” exclusive of interest and costs. Garcia v. Koch Oil Co. of Tex. Inc.,
351 F.3d 636, 638 (5th Cir. 2003); 28 U.S.C. § 1332(a). “To determine whether
jurisdiction is present for removal, [courts] consider the claims in the state court
petition as they existed at the time of removal.” Manguno v. Prudential Prop. And
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). “Any ‘doubts regarding whether
removal jurisdiction is proper should be resolved against federal jurisdiction.’”
Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir. 2014) (quoting Acuna
v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
“When a plaintiff has not alleged a specific amount of damages, a removing
defendant bears the burden of proving by a preponderance of the evidence that the
amount in controversy exceeds $75,000.” Franco v. Teasdale, No. CIV.A.06-27554,
2006 WL 2224743, at *1 (E.D. La. Aug. 1, 2006) (Africk, J.) (citing Luckett v. Delta
Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999)).12 “The defendant may make this
showing in either of two ways: (1) by demonstrating that it is ‘facially apparent’ that
the claims are likely above $75,000, or (2) ‘by setting forth the facts in controversy—
preferably in the removal petition, but sometimes by affidavit—that support a finding
12 The Court notes that plaintiffs in Louisiana “are ordinarily prohibited from
specifying a monetary amount of damages in their state court petitions.” Franco, 2006
WL 2224743, at *1. Therefore, a removing defendant in Louisiana must prove by a
preponderance of the evidence that the amount in controversy exceeds $75,000. Id.
of the requisite amount.’” Id. (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326,
1335 (5th Cir. 1995)).
“The jurisdictional facts that support removal must be judged at the time of
the removal.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000).
“Where the ‘facially apparent’ test is not met, it is appropriate for the Court to
consider summary-judgment-type evidence relevant to the amount in controversy as
of the time of removal.” Heaverlo v. Victoria’s Secret Stores, LLC, No. CIV.A. 07-7303,
2008 WL 425575, at *2 (E.D. La. Feb. 8, 2008) (Vance, J.) (citing Allen v. R & H Oil
& Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995)). Post-removal stipulations or affidavits
may likewise be considered if the basis for jurisdiction is ambiguous at the time of
removal. Gebbia, 233 F.3d at 883. However, “if 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 amount do not deprive the
district court of jurisdiction.” Id.
III. ANALYSIS
The Court first considers whether it is facially apparent from the complaint
itself whether it is more likely than not that the amount in controversy exceeds
$75,000. Plaintiff’s complaint states that she will need surgery and that she is seeking
various types of general damages, including lost wages, past and future medical
expenses, permanent disability, disfigurement and scarring, and loss of enjoyment of
life.13 However, this list of damages sought is insufficient to meet the facially
13 R. Doc. No. 1-3, at 7–8.
apparent test absent factual allegations demonstrating that the amount in
controversy is likely met.
“Courts have routinely held that pleading general categories of damages, such
as ‘pain and suffering, disability, lost wages, loss of earning capacity, medical
expenses, etc.,’ without any indication of the amount of the damages sought,” is
insufficient to meet defendant’s burden using the facially apparent test.14 When “the
petition is vague regarding the types of injuries incurred and any future problems
resulting from the incident,” the court cannot conclude that it is facially apparent
that damages will exceed $75,000. See Demones, Civ. A. No. 14-1968, 2014 WL
7240158, at *4. Defendants can bear their burden of proving that removal is proper
by asking a court to make “common-sense inferences about the amount put at stake
by the injuries the plaintiffs claim.” See Robertson v. Exxon Mobil Corp., 814 F.3d
236, 240 (5th Cir. 2015). But here, the Court cannot conclude that it is facially
apparent that the amount in controversy requirement is met because plaintiff’s
complaint states only that she fell with no description of the injuries sustained.
The Court next considers whether evidence attached to the motion to remand
and the opposition reveal that the amount in controversy is met. As a threshold
matter, the Court notes that the requirement that jurisdictional facts be assessed at
the time of removal does not bar the Court from considering this evidence, even
14 Demones v. Trinity Marine Products, Inc., Civ. A. No. 14-1968, 2014 WL 7240158,
at *3–4 (E.D. La. Dec. 19, 2014) (Wilkinson, J.) (quoting Davis v. JK & T Wings, Inc.,
No. 11–501–BAJ, 2012 WL 278728, at *2 (M.D. La. Jan. 6, 2012), report &
recommendation adopted, 2012 WL 278685 (M.D. La. Jan. 31, 2012) (collecting
cases)).
though it was not attached to defendant’s notice of removal. Documentation of
plaintiff’s MRI,15 plaintiff’s medical expenses,16 and plaintiff’s email17 refusing to
stipulate as to the amount in controversy all existed at the time of removal18 and
therefore were “jurisdictional fact[s] at the time of removal.” See Tornabene v. Cox,
No. CV 20-400, 2020 WL 1429858, at *2 (E.D. La. Mar. 24, 2020) (Ashe, J.)
(considering a letter produced post-removal because the letter existed at the time of
removal). The Court will consider these documents as evidence as to whether the
amount in controversy is met.
Considering this evidence, the Court concludes that defendant has failed to
meet its burden. The MRI identifies partial disc dessication at L4-5 and L5-S1; a disc
bulge at L4-5; facet hypertrophy at L3-4, L4-5 and L5-S1; fluid in L3-4, L4-5, and L5-
S1; and an annular tear of the L4-5 disc.19 No evidence has been submitted to indicate
what future treatment will be required or the costs of said treatment. In contrast,
plaintiff has demonstrated that her known medical expenses at the time of removal
amount to a mere $7,200.20 Nearly a year passed between the alleged accident and
removal to federal court. Additionally, the parties have submitted no evidence of
other damages incurred, such as lost wages. See Howard v. Winn-Dixie Stores, Inc.,
15 R. Doc. No. 16-1, at 3–4 (MRI report dated November 8, 2023).
16 R. Doc. No. 15-4, at 2–3 (showing a health insurance claim form for services
provided on November 8, 2023 and showing bills from Louisiana Pain Specialists
incurred between November 20, 2023 and April 30, 2024).
17 R. Doc. No. 16-3, at 1 (email from plaintiff’s counsel declining to stipulate that
plaintiff’s damages will not exceed $75,000 sent on July 2, 2024).
18 R. Doc. No. 1 (notice of removal filed on July 17, 2024).
19 R. Doc. No. 16-1, at 4.
20 R. Doc. No. 15-1, at 7.
No. 22-CV-02356, 2022 WL 4377528, at *1 (E.D. La. Sept. 22, 2022) (Zainey, J.)
(concluding that $17,936 in medical expenses two years after the accident was
insufficient to demonstrate that the amount in controversy was met). At this point,
the Court cannot conclude that it is more likely than not that expenses will increase
more than tenfold. Likewise, though a failure to stipulate that damages will not
exceed $75,000 may be probative in close cases, it is insufficient to carry defendant’s
burden on its own. See Ball-Arthur v. CVS Pharmacy, Inc., No. CV 24-1462, 2024 WL
3992212, at *2 (E.D. La. Aug. 29, 2024) (Zainey, J.).
IV. CONCLUSION
Accordingly,
IT IS ORDERED that plaintiff's amended motion to remand is GRANTED.
This case is remanded to the 24th Judicial District Court for the Parish of Jefferson
because of a lack of subject matter jurisdiction.
New Orleans, Louisiana, September 23, 2024.
Si
UNITED STATES DISTRICT JUDGE