IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________________
No. 98-31188
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DIXIE LEE SIMON and
ELWIN SIMON, Plaintiffs-Appellees,
versus
WAL-MART STORES, INC., Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
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October 20, 1999
Before REYNALDO G. GARZA, JOLLY, and WIENER, Circuit Judges:
WIENER, Circuit Judge:
In this diversity case arising from a purse-snatching incident
in the parking lot of a Wal-Mart Store in Denham Springs,
Louisiana, Defendant-Appellant Wal-Mart Stores, Inc. (“Wal-Mart”)
appeals the jury verdict finding it liable to Plaintiff-Appellee
Dixie Lee Simon (“Simon”) for $30,000 as compensation for injuries
she sustained in an attack by an unidentified third-party criminal
perpetrator.1 We do not reach the merits of the appeal, however,
because we hold that the district court lacked subject matter
jurisdiction over the action and, accordingly, we vacate that
court’s judgment and remand this case with instructions to remand
to the state court in which it originated.
1
The jury awarded no damages to Simon’s husband, Plaintiff-
Appellee Elwin Simon (“Elwin”) on his claim for loss of consortium.
1
I.
Facts and Proceedings
Dixie Lee and Elwin Simon (collectively, the “Simons”)
originally filed this action in state court. They alleged that
while Simon was walking through the Wal-Mart parking lot, a car
drove past her, and “her purse, wrapped around her arm, was
suddenly and unexpectedly grabbed . . . causing [her] to be dragged
by the car the distance of several parking spaces to the front of
the Wal-Mart Store before being released.” In accordance with
Louisiana law, they did not plead a monetary amount of damages2 but
asserted that Simon “suffered bodily injuries and damages including
but not limited to a severely injured shoulder, soft-tissue
injuries throughout her body, bruises, abrasions and other injuries
to be shown more fully at trial, and has incurred or will incur
medical expenses.” Elwin also sought “reasonable” damages for loss
of consortium.
Wal-Mart removed the action to federal district court on the
basis of diversity:3 The Simons are residents of Louisiana, and
Wal-Mart is a Delaware corporation with its principal place of
business in Arkansas. As to the jurisdictional amount, Wal-Mart
2
La. Code Civ. Proc. art. 893 provides:
No specific monetary amount of damages shall be included
in the allegations or prayer for relief of any original,
amended, or incidental demand. . . . If a specific
amount of damages is necessary to establish the
jurisdiction of the court . . . [or] the lack of
jurisdiction of federal courts due to insufficiency of
damages, a general allegation that the claim exceeds or
is less than the requisite amount is sufficient.
3
28 U.S.C. § 1332 (1994).
2
merely alleged that “the matter in controversy herein exceeds the
sum of $75,000, exclusive of interests and costs.” Neither the
district court nor either party ever questioned the court’s
jurisdiction, and the only other mention of the issue was in the
parties’ Uniform Pretrial Order, which stated: “Plaintiff’s
injuries, if casually related, could well exceed the $75,000
threshold amount.”
II.
Analysis
The Simons never objected to removal or challenged
jurisdiction, but a party may neither consent to nor waive federal
subject matter jurisdiction. Federal courts may examine the basis
of jurisdiction sua sponte, even on appeal.4
We have recently articulated, in Luckett v. Delta Airlines,
Inc.,5 a clear analytical framework for evaluating jurisdiction for
cases filed in Louisiana state courts, with no monetary amount of
damages asserted, when they are removed to federal court on the
basis of diversity:
In such a situation, the removing defendant must prove by
a preponderance of the evidence that the amount in
controversy exceeds $75,000. The defendant may make this
showing in either of two ways: (1) by demonstrating that
it is “facially apparent” that the claims are likely
4
Copling v. Container Store, Inc., 174 F.3d 590, 594 (5th
Cir. 1999); Jones v. Collins, 132 F.3d 1048, 1051 (5th Cir. 1998).
5
171 F.3d 295 (5th Cir. 1999).
3
above $75,000, or (2) “by setting forth facts in
controversy —— preferably in the removal petition, but
sometimes by affidavit —— that support a finding of the
requisite amount.”6
Here, Wal-Mart neither filed an affidavit with its Notice of
Removal nor set forth any facts in controversy in that Notice; it
merely alleged in a conclusional manner that the amount in
controversy exceeded the jurisdictional amount.7 Accordingly,
removal was proper only if the jurisdictional amount was “facially
apparent” from the complaint.
We find the instant case distinguishable from Luckett, in
which we concluded that the jurisdictional amount of damages was
apparent on the face of the complaint. Luckett involved a tort
action brought by a plaintiff whose luggage, containing her heart
medication, was lost by the defendant airline. Luckett became
severely ill after not taking the medication and specifically
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 following her
hospitalization. In contrast, the instant complaint alleged, with
little specificity, damages from less severe physical injuries ——
6
Id. at 298 (citations omitted).
7
“Removal, however, cannot be based simply upon conclusory
[sic] allegations.” Allen v. R & H Oil and Gas Co., 63 F.3d 1326,
1335 (5th Cir. 1995); see also Asociacion Nacional de Pescadores a
Pequena Escala o Artesanales de Colombia (ANPAC) v. Dow Quimica de
Colombia, S.A., 988 F.2d 559, 565-66 (5th Cir. 1993) (holding that
conclusional statement in notice of removal was insufficient to
support jurisdiction).
4
an injured shoulder, bruises, and abrasions —— and unidentified
medical expenses for Simon, plus loss of consortium for Elwin. It
did not allege any damages for loss of property, emergency
transportation, hospital stays, specific types of medical
treatment, emotional distress, functional impairments, or
disability, which damages, if alleged, would have supported a
substantially larger monetary basis for federal jurisdiction. On
the basis of the Simons’ allegations, we must conclude that it was
not “facially apparent” that the amount of damages would exceed
$75,000.
During oral argument, Wal-Mart suggested that the inquiry for
an appellate court deciding whether the jurisdictional amount is
“facially apparent” from the complaint is analogous to the inquiry
for deciding whether the damages awarded by a jury are adequate.
Wal-Mart cited the Louisiana Supreme Court decision in Youn v.
Maritime Overseas Corp.8 Youn does not establish a general rule;
it merely provides that a Louisiana appellate court must consider
the reasonableness of the jury’s damages award in light of the
particular circumstances and the particular plaintiff.9
Accordingly, Wal-Mart suggests by analogy that if we find, on
consideration of the entire record, that a reasonable jury could
have awarded $75,000 to the Simons, then removal must be deemed
8
623 So.2d 1257 (La. 1993).
9
Id. at 1260. To the extent that Youn describes state
appellate procedure, we are not Erie bound to apply it in federal
court; nevertheless, we may consider it as persuasive authority to
inform our judgment.
5
proper. The flaw in this suggestion is that what is “reasonable”
or “possible” under a particular set of facts fully developed at
trial is not analogous to what is “facially apparent” from
allegations in a complaint. And, under Luckett, we must evaluate
the facts supporting jurisdiction as of the time of removal and
therefore may not consider the entire post-removal record: We
cannot under Luckett consider evidence adduced at trial or
allegations of damages described in the parties’ appellate briefs,
available only now from the vantage point of appellate review.10
Within the Luckett framework, Wal-Mart was faced with a
complaint that described damages inadequately to support removal,
i.e., with substantially less specificity than the description of
damages in the complaint in Luckett.11 Wal-Mart therefore had an
affirmative burden to produce information, through factual
allegations or an affidavit, sufficient to show “by a preponderance
of the evidence that the amount in controversy exceed[ed]
$75,000.”12 The Simons’ failure to object to removal or
jurisdiction —— at oral argument their counsel asserted that they
believed the case was worth much more than $75,000 and thus had no
10
Allen, 63 F.3d at 1335 (noting that “jurisdictional facts”
to support removal must be judged at the time of removal, and any
post-petition affidavits are allowable only if relevant to that
period of time); see also ANPAC, 988 F.2d at 565.
11
See also Allen, 63 F.3d at 1336 (“applying common sense” and
concluding that total claim for punitive damages more likely than
not would exceed $50,000, as it involved three companies, 512
plaintiffs, and wide variety of harm from wanton and reckless
conduct).
12
Luckett, 171 F.3d at 298.
6
basis to object —— does not relieve Wal-Mart of its burden to
support federal jurisdiction at the time of removal.
III.
Conclusion
On its face, the Simons’ complaint does not support diversity
jurisdiction, and Wal-Mart did not allege or aver additional facts
in support of federal jurisdiction. Therefore, the district court
lacked subject matter jurisdiction. Accordingly, we are left with
no choice but to (1) vacate the judgment of the district court, (2)
remand this action to that court with instructions for it to remand
to the state court from which the action was removed, and (3)
dismiss this appeal.
JUDGMENT VACATED; ACTION REMANDED to the district court with
instructions to remand to state court; APPEAL DISMISSED.
7