Gebbia v. Wal-Mart Stores, Inc.

                  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



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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.



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     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,


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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.

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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


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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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