concluding that, even in the absence of a numerical value of claimed damages, it was facially apparent that the plaintiff’s claimed damages in a slip-and-fall lawsuit exceeded $75,000 when the plaintiff alleged wrist, knee, and back injuries and sought damages for medical expenses; pain and suffering; mental anguish; loss of enjoyment of life; loss of wages and earning capacity; and permanent disability and disfigurement
How later courts described this case
- concluding that, even in the absence of a numerical value of claimed damages, it was facially apparent that the plaintiff’s claimed damages in a slip-and-fall lawsuit exceeded $75,000 when the plaintiff alleged wrist, knee, and back injuries and sought damages for medical expenses; pain and suffering; mental anguish; loss of enjoyment of life; loss of wages and earning capacity; and permanent disability and disfigurement
- finding it facially apparent that the amount in controversy was met where plaintiff alleged injuries to upper and lower back, right wrist and left knee and patella, and claimed damages for medical expenses, physical and mental pain and suffering, loss of enjoyment of life, loss of wages and earning capacity, permanent disability and disfigurement
- holding it facially apparent from initial pleading that threshold exceeded when plaintiff sought “damages for medical expenses, physical pain and suffering, mental anguish and suffering, loss of enjoyment of life, loss of wages and earning capacity, and permanent disability and disfigurement”
- stating that “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”
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30386
Summary Calendar
CATHERINE GEBBIA,
Plaintiff-Appellant,
VERSUS
WAL-MART STORES, INC.; UNIDENTIFIED PARTY,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
December 4, 2000
Before JOLLY, STEWART, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Plaintiff-Appellant Catherine Gebbia (“Plaintiff”) appeals the
district court’s denial of her motion to remand. Because we find
no error regarding the denial of her motion, we affirm.
BACKGROUND
Plaintiff brought this action on September 23, 1998, in the
Twenty-First Judicial District Court of Louisiana, alleging claims
arising from her injuries suffered in one of Defendant-Appellee
Wal-Mart Stores, Inc.’s (“Defendant”) stores in Hammond, Louisiana,
on October 5, 1997. Plaintiff suffered her injuries when she went
into the produce section of the store and slipped and fell in
liquid, dirt, and produce on the floor. Plaintiff alleged in her
original state court petition that she sustained injuries to her
right wrist, left knee and patella, and upper and lower back. Pet.
for Damages at 2, reprinted in R. Excerpts Ex. 2 at 2. Plaintiff
alleged damages for medical expenses, physical pain and suffering,
mental anguish and suffering, loss of enjoyment of life, loss of
wages and earning capacity, and permanent disability and
disfigurement. Id. at 4. Consistent with Article 893 of the
Louisiana Code of Civil Procedure, which prohibits the allegation
of a specific amount of damages, Plaintiff did not pray for a
specific amount of damages.
Defendant removed this action to the district court on October
13, 1998, pursuant to diversity jurisdiction as provided by 28
U.S.C. § 1332. It is undisputed that the parties are completely
diverse, as Plaintiff is a citizen of Louisiana and Defendant is a
citizen of Delaware with its principle place of business in
Arkansas. Defendant stated in its Notice of Removal that the
$75,000 amount in controversy requirement was satisfied because
Plaintiff’s alleged injuries and damages, exclusive of interests
and costs, exceeded that amount.
The district court scheduled this action for trial on March
20, 2000, and the parties proceeded with pre-trial discovery until
March 2, 2000, when Plaintiff questioned the court’s diversity
jurisdiction by filing a motion to remand arguing that the $75,000
No. 00-30386
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amount in controversy requirement was not satisfied. In the
motion, accompanied by Plaintiff’s affidavit, Plaintiff argued that
due to continuing medical treatment of her injuries, Plaintiff was
unable to confirm the amount of damages claimed. Plaintiff added
that only after conducting discovery and receiving information from
her treating physicians was she able to ascertain that the amount
of claimed damages would be less than $75,000. In light of such
information, Plaintiff argued that the amount in controversy was
less than $75,000, and that the district court should remand this
action for lack of subject-matter jurisdiction.
The district court denied the motion to remand on March 14,
2000, finding that the court had subject-matter jurisdiction
because Plaintiff’s petition at the time of removal alleged
injuries that exceeded the $75,000 requirement. In the Revised
Joint Pretrial Order filed on March 16, 2000, Plaintiff again
disputed the court’s jurisdiction because Plaintiff stipulated,
based on medical evidence, that her claims did not amount to
$75,000. Plaintiff then filed a motion to reconsider the district
court’s denial of her motion to remand in light of the stipulation,
and re-urged the district court to remand for lack of subject-
matter jurisdiction. On March 16, 2000, the district court denied
Plaintiff’s motion for reconsideration, restating its finding that
because Plaintiff’s claims at the time of removal alleged claims in
excess of $75,000, the court was not inclined to reconsider its
previous denial of the motion to remand.
No. 00-30386
Page 3 of 7
Thereafter, this action was tried on March 20, and a jury
found for Defendant on Plaintiff’s claims. On March 22, the
district court entered a judgment in favor of Defendant and
dismissing Plaintiff’s claims with prejudice. Plaintiff timely
appealed the judgment, and now argues that the district court erred
in denying her motion to remand.
ANALYSIS
We review a denial of a motion to remand de novo. Luckett v.
Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999).
Any civil action brought in a state court of which the
district courts have original jurisdiction may be removed to the
proper district court. 28 U.S.C. § 1441(a). District courts have
original jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of
interests and costs, and is between citizens of different states.
Id. § 1332(a)(1). As noted above, Plaintiff is a citizen of
Louisiana, and Defendant is a citizen of Delaware with its
principle place of business in Arkansas, thus, the only issue on
this appeal is whether the district court erred in deciding that
the amount in controversy exceeded the sum or value of $75,000,
exclusive of interests and costs.
We have established a clear analytical framework for resolving
disputes concerning the amount in controversy for actions removed
from Louisiana state courts pursuant to § 1332(a)(1). Luckett, 171
F.3d at 298. Because plaintiffs in Louisiana state courts, by law,
No. 00-30386
Page 4 of 7
may not specify the numerical value of claimed damages, 3 LA. CODE
CIV. P. art. 8931 (West Supp. 2000), the removing defendant must
prove by a preponderance of the evidence that the amount in
controversy exceeds $75,000. Id. The defendant may prove that
amount either by demonstrating that the claims are likely above
$75,000 in sum or value, or by setting forth the facts in
controversy that support a finding of the requisite amount. Id.
(quoting Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.),
reh’g denied, 70 F.3d 26 (5th Cir. 1995)); Simon v. Wal-Mart
Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999).
Moreover, once the district court’s jurisdiction is
established, subsequent events that reduce the amount in
controversy to less than $75,000 generally do not divest the court
of diversity jurisdiction. St Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 289-90 (1938); see also Allen, 63 F.3d at 1336
(holding that once removal jurisdiction attached, a subsequent
amendment of the complaint reducing the amount in controversy to
less than the required amount cannot divest jurisdiction); 16 JAMES
WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 107.41[2][c] (3d ed. 1999);
14C CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3725 at 115
(3d ed. 1998). The jurisdictional facts that support removal must
1
This article provides in relevant part:
No specific monetary amount of damages shall be included in
the allegations or prayer for relief of any original, amended,
or incidental demand. The prayer for relief shall be for such
damages as are reasonable in the premises.
No. 00-30386
Page 5 of 7
be judged at the time of the removal. Id. at 1335. While post-
removal affidavits may be considered in determining the amount in
controversy at the time of removal, such affidavits may be
considered only if the basis for jurisdiction is ambiguous at the
time of removal. Asociacion Nacional de Pescadores a Pequena
Escala O Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia
S.A., 988 F.2d 559, 565 (5th Cir. 1993), cert. denied, 510 U.S.
1041 (1994), abrogated on other grounds, Marathon Oil Co. v. A.G.
Ruhrgas, 145 F.3d 211 (5th Cir. 1998). Additionally, 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. St. Paul Mercury Indem., 303 U.S.
at 292; ANPAC, 988 F.2d at 565; Allen, 63 F.3d at 1336; see also De
Aguilar v. Boeing Co., 47 F.3d 1404, 1407 (5th Cir. 1995).
In this action, the district court properly denied Plaintiff’s
motion to remand. It is “facially apparent” from Plaintiff’s
original petition that the claimed damages exceeded $75,000. In
Luckett, we held that the district court did not err in finding
that the plaintiff’s claims exceeded $75,000 because the plaintif
alleged damages for property, travel expenses, an emergency
ambulance trip, a six-day stay in the hospital, pain and suffering,
humiliation, and temporary inability to do housework after
hospitalization. Luckett, 171 F.3d at 298. In Simon, we held, in
distinguishing Luckett, that the district court erred in not
No. 00-30386
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remanding the action to the state court because the plaintiff’s
claims merely alleged less severe injuries and did not allege any
injuries that would have supported a substantially larger monetary
basis for federal jurisdiction than the injuries alleged in
Luckett. Simon, 193 F.3d at 851. In this action, Plaintiff
alleged in her original state court petition that she sustained
injuries to her right wrist, left knee and patella, and upper and
lower back. Plaintiff alleged damages for medical expenses,
physical pain and suffering, mental anguish and suffering, loss of
enjoyment of life, loss of wages and earning capacity, and
permanent disability and disfigurement. Such allegations support
a substantially larger monetary basis to confer removal
jurisdiction than the allegations reviewed in Simon, and therefore
the district court did not err in denying Plaintiff’s motion to
remand. Because it was facially apparent that Plaintiff’s claimed
damages exceeded $75,000, the district court properly disregarded
Plaintiff’s post-removal affidavit and stipulation for damages less
than $75,000, and such affidavit and stipulation did not divest the
district court’s jurisdiction. St Paul Indem., 303 U.S. at 390;
Allen, 63 F.3d at 1336.
AFFIRMED.
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