Marcel v. Pool Co.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
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No. 93-3007
Summary Calendar
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DARREN P. MARCEL,

Plaintiff-Appellant,

VERSUS

POOL COMPANY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
(October 6, 1993)

Before SMITH, BARKSDALE, and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Darren Marcel, the plaintiff, appeals a summary judgment

entered in favor of the defendant, Pool Company, on the ground

that the district court lacked removal jurisdiction for want of

the requisite jurisdictional amount and that, in the alternative,

if there was jurisdiction, the summary judgment was inappropri-

ate. Concluding both that there was jurisdiction and that sum-

mary judgment was proper, we affirm.

I.

In September 1991, Marcel filed suit in state court against
Pool Company, ABC Insurance Company, and the Estate of Clifford

A. Ledet, Jr., alleging injuries as a result of a collision be-

tween his car and one driven by Ledet in which Ledet was killed

and Marcel was injured. Marcel claimed that Ledet was negligent

in crossing the center line of the roadway and that, at the time,

Ledet was working within the course and scope of his employment

with Pool Company.

Ledet was working a seven-day shift on an off-duty oil rig;

he worked a ten-hour shift and was paid only for hours actually

worked. Pool Company provided its employees with a meal ticket

that enabled them to buy meals at any of three specified restau-

rants; Pool Company also offered some employees a facility in

which to sleep. There was no obligation to use the meal ticket

or to stay in the company-provided quarters. At the time of the

accident, Ledet, who lived at home, had just left one of the

three designated restaurants and apparently was en route to a

different restaurant to have breakfast before work.

In accordance with LA. CODE CIV. P. art. 893, Marcel's state

court petition claimed no specific money amount of damages. It

contained, however, the following allegations:

. . . Mr. Marcel sustained serious and debilitat-
ing injuries for which he has sought medical attention
and treatment and has incurred substantial medical ex-
penses.

. . . namely;

a) Past, present and future physical pain and
suffering;

b) Past, present and future mental pain and suf-
fering;

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 c) Past, present and future medical expenses; and

d) Past, present and future lost wages.

. . .

. . . [T]he defendants are liable unto Darren P.
Marcel for exemplary damages as a result of the wanton
and reckless disregard for the rights and safety of
Darren P. Marcel by Clifford A. Ledet, Jr.

. . . .

Less than a month after the state court petition was filed,

Pool Company filed a notice of removal in federal district court,

stating, in part, that the district court "has original subject

matter jurisdiction over this matter pursuant to 28 U.S.C.

§ 1332(a)(1)," that the removal was sought pursuant to 28 U.S.C.

§ 1441(a) and (b), and that

plaintiff alleges he has suffered past, present, and
future physical pain and suffering; past, present, and
future mental pain and suffering; past, present, and
future medical expenses; and past, present, and future
lost wages. Plaintiff also seeks exemplary damages,
together with interest from the date of judicial demand
until paid and all costs of these proceedings, as well
as all general and equitable relief.

Approximately nine months later )) in July 1992 )) Marcel filed a

motion to remand, stating that he "maintains that the plaintiff

stipulates that his claim is not worth the $50,000.00, exclusive

of interest and costs, minimal jurisdictional limit of the Court

and that, therefore, the Court herein lacks original jurisdiction

over this matter."

Pool Company filed a memorandum in opposition to the motion

to remand, setting forth, inter alia, the following:

Although discovery is not yet complete, the plain-
tiff has alleged that he sustained the following inju-

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 ries in connection with the accident:

Dislocated elbow,
broken left arm requiring surgery and the
insertion of a steel plate and six screws,
a fractured skull,
a concussion,
a lacerated spleen,
internal bleeding,
ear problems,
a bruised pelvis, and
stitches in his chin.

See Answer to Interrogatory No. 2; a copy of Interroga-
tories Propounded by Pool to the Plaintiff and the an-
swers to those Interrogatories are attached en globo as
Exhibit 2.

The plaintiff was hospitalized for eight days,
from April 6, 1991 through April 14, 1991. The medical
expenses submitted with the Interrogatories and Request
for Production of Documents total $16,310.10. [T]he
plaintiff reserved his right to supplement his response
. . . . Plaintiff also seeks $5,162.50 in property
damage and $6,000.00 in lost wages. Accordingly, the
total specified in his discovery responses is
$27,472.60. See Answer to Interrogatory No. 17.
Plaintiff also seeks damages for pain and suffering and
loss of earning capacity, but did not provide any spe-
cifics for those figures, stating that they were un-
available and they would be proved at trial. See An-
swer to Interrogatory No. 17. Thus, plaintiff has
specified damages in the amount of $27,472.60. In or-
der to reach the jurisdictional limit, a jury need only
award damages in excess of $22,527.40. Additionally,
the plaintiff also seeks exemplary damages, which must
be taken into account in determining whether the juris-
dictional amount is present.

. . . .

A review of the Louisiana jurisprudence did not
disclose a case with the plaintiff's exact injuries. A
survey of the jurisprudence on each of the plaintiff's
injuries, however, establishes that the amount in con-
troversy is significantly more than $50,000.00. [Pool
Company here cites cases under Louisiana law1 in which

1
Mitchell v. Clark Equip. Co., 561 So. 2d 175 (La. App. 5th Cir. 1990)
($400,000 for fractured pelvis and arm and two weeks in hospital); Wilcox v.
(continued...)

4
 awards for similar injuries substantially exceeded
$50,000.]

The plaintiff has alleged that he was seriously
injured and the jurisprudence as set forth above indi-
cates there is the possibility he may be awarded sig-
nificant damages, exclusive of the punitive damages he
seeks. Accordingly, defendant has satisfied its burden
that it does not appear to a legal certainty that the
plaintiff's claim is for less than $50,000.00 . . . .

At the hearing on the motion to remand, Marcel's counsel

reiterated his proposed stipulation and offered to file an affi-

davit to that effect. The court refused to accept a unilateral

stipulation but indicated a willingness to consider a stipulation

agreed to by all parties. Pending such a joint stipulation,

which never materialized, the district court denied the motion to

remand.

II.

Before deciding the propriety of the summary judgment, we

must determine whether the district court had jurisdiction to

1
(...continued)
Kerr-McGee Corp., 706 F. Supp. 1258 (E.D. La. 1989) ($200,000 for broken wrist
requiring several surgeries); Thompson v. Colony Ins. Co., 520 So. 2d 1158
(La. App. 3d Cir. 1987) ($30,000 for contusion and nerve irritation in left
arm); Roger v. Cancienne, 538 So. 2d 670 (La. App. 4th Cir.) ($125,000 for
elbow injury, scar on arm, and inability to extend arm fully), writ denied,
542 So. 2d 1382 (1989); Black v. United States Fidelity & Guar. Co., 546 So.
2d 285 (La. App. 3d Cir. 1989) ($4,500 for elbow injury); Abernathy v. Spie
Group, No. Civ. 89-2100, 1990 U.S. Dist. LEXIS 5582 (E.D. La. May 7, 1990)
($100,000 general damages for fractured skull resulting in dizziness, vertigo,
and hearing loss); Riche v. City of Baton Rouge, 541 So. 2d 905 (La. App. 1st
Cir. 1988) ($50,000 for skull fracture, concussion, and fractured vertebrae);
Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161 (5th Cir. 1990)
($85,000 for fractured coccyx and mild concussion); Roberts v. State, 576 So.
2d 85 (La. App. 2d Cir.) ($150,000 for concussion, laceration of lip and chin,
and severe fracture of left femur), writ denied, 581 So. 2d 685 (1991); Sexton
v. Louisiana Vacuum Servs., 506 So. 2d 780 (La. App. 1st Cir. 1987) ($175,000
for rib and scapula fractures, pneumothorax, and injuries to spleen and
mouth).

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enter it. This depends upon whether the motion to remand was

properly denied.

A.

Our decision is informed by this court's very recent deci-

sion in Asociación Nacional de Pescadores a Pequeña Escala o

Artesanales de Colombia v. Dow Química de Colombia S.A.

("ANPAC"), 988 F.2d 559 (5th Cir. 1993). There, under narrow and

somewhat unusual circumstances, we directed a remand on the basis

of an attorney's unilateral stipulation, in the form of an

affidavit, to the effect that the claim did not exceed $50,000.

In that case, as here, state law (in ANPAC, TEX. R. CIV. P.

47(b)) proscribed the pleading of a specific amount in damages;

the approximately 700 plaintiffs, whose damages we held could not

be aggregated for purposes of the jurisdictional amount, see

988 F.2d at 563-64, alleged only that "'[d]amages far exceed the

minimum jurisdictional limits of this court,'" id. at 562

(brackets added in ANPAC). The reference to minimum

jurisdictional amount apparently referred to the threshold of no

more than $500 required to bring an action in state district

court. See id. at 564 n.4.

The ANPAC defendant removed but provided no more than the

conclusionary and unsupported assertion that the amount in

controversy exceeded $50,000. The plaintiffs moved to remand

supported by an affidavit from their attorney attesting that no

individual plaintiff had suffered a loss greater than $50,000.

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 This court reversed the district court's denial of the

motion to remand. We observed, first, that "the injuries alleged

in the plaintiffs' complaint are not ones that are facially

likely to be over the jurisdictional amount. The personal

injuries are mentioned only cursorily and referred to as `skin

rashes,' and even a fairly sustained loss of income to a small-

scale fisherman in Colombia seems unlikely to reach $50,000."

Id. at 565.

The court then discussed the test enunciated in St. Paul

Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 (1938),

to the effect that "a case may be removed unless it `appear[s] to

a legal certainty that the claim is really for less than the

jurisdictional amount.'" 988 F.2d at 564. The ANPAC panel

reasoned as follows: "[W]e . . . cannot say that the claims are

necessarily outside of the range that could confer federal

jurisdiction. That being the case, the plaintiffs' attorney's

affidavit stating that damages are less than $50,000 per

plaintiff may be considered by the court in deciding whether

remand is proper." Id. at 565.

The court observed that, while under St. Paul Mercury, 303

U.S. at 292, "a plaintiff may not defeat removal by subsequently

changing his damage request, because post-removal events cannot

deprive a court of jurisdiction once it has attached,"

988 F.2d at 565, the affidavit in ANPAC merely clarified an

ambiguous removal petition. The court recognized the rule of St.

Paul Mercury that we evaluate jurisdictional amount as of the

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moment of removal; as the Court put it, "[S]ubsequent reduction

of the amount claimed cannot oust the district court's

jurisdiction." Id. at 295. But the ANPAC panel reasoned that

the affidavit could be considered because, under the particular

circumstances present there, "the [district] court is still

examining the jurisdictional facts as of the time the case is

removed, but the court is considering information submitted after

removal." 988 F.2d at 565.

The ANPAC court also declined to give substantial weight to

defendant's notice of removal )) the only thing offered in support

of the jurisdictional amount )) because it "merely states, without

any elaboration, that `the matter in controversy exceeds $50,000

. . . .'" Id.

The plaintiffs met [defendant's] statement in its
removal notice with a sworn affidavit affirming that
individual damages were less than $50,000. Nothing
submitted by [the defendant] even suggests the
contrary. When specifically contested in a motion to
remand, bare allegations by the removing party (much
less statements in passing) have been held insufficient
to invest a federal court with jurisdiction.

Id. at 566 (citations omitted). The court concluded that

at least where the following circumstances are present,
[the removing party's] burden has not been met: (1)
the complaint did not specify an amount of damages, and
it was not otherwise facially apparent that the damages
sought or incurred were likely above $50,000; (2) the
defendants offered only a conclusory statement in their
notice of removal that was not based on direct
knowledge about the plaintiffs' claims; and (3) the
plaintiffs timely contested removal with a sworn,
unrebutted affidavit indicating that the requisite
amount in controversy was not present.

Id.

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 B.

ANPAC, though controlling authority, is very narrowly drawn

and circumscribed and is plainly distinguishable. Under its

reasoning and that of the Court in St. Paul Mercury, the district

court was correct in denying the motion to remand. Examining the

three numbered conditions set forth in ANPAC, we conclude that

none of them is present here. While in the present case, as in

ANPAC, the complaint did not, and indeed, could not, specify an

amount of damages, it is facially apparent here that, based upon

the complaint and viewing the case as of the time of removal, the

damages easily could exceed $50,000. In fact, any one of several

of the injuries alleged )) not to mention the requested exemplary

damages )) alone could have topped that amount, and the special

damages in Marcel's discovery responses totaled more than half of

the requisite $50,000.

Nor is ANPAC's second condition )) that the defendant

submitted only a conclusory statement )) satisfied here. Within a

month of the filing of the state petition, the defendant filed

its notice of removal buttressed by a listing of the types of

injury the plaintiff claimed. While the facts in the notice of

removal were not at all detailed and were based upon the

recitations in Marcel's state petition rather than upon Pool

Company's personal knowledge, Pool Company timely conducted

discovery and, in response to Marcel's motion to remand, provided

a detailed explanation of why it was apparent that the claim

almost certainly was for well in excess of the jurisdictional

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threshold.

The third ANPAC condition was met only in part. While

Marcel's counsel offered to stipulate that the claim was for less

than the requisite amount and further offered to tender an

affidavit to that effect, the stipulation was not unrebutted, as

in ANPAC.

We view ANPAC as an unusual case in which the defendant did

little to defeat removal. The only specific information shedding

light upon the plaintiffs' petition, which itself described

injuries unlikely to exceed $50,000, was provided by the

affidavit tendered by the plaintiffs.

Nothing in ANPAC suggests that stipulations or affidavits ))

from the plaintiffs, their attorneys, or otherwise )) always or

even usually should be given effect to defeat removal.

Importantly, the Court in St. Paul Mercury, 303 U.S. at 292, held

that "though, as here, the plaintiff after removal, by

stipulation, by affidavit, or by amendment of his pleadings,

reduces the claim below the requisite amount, this does not

deprive the district court of jurisdiction."

The affidavit was considered in ANPAC only because it

"clarif[ied] a petition that previously left the jurisdictional

question ambiguous." 988 F.2d at 565. In cases in which, on the

other hand, the plaintiff, by whatever means, seeks to reduce,

rather than clarify, his demand after removal, the plain language

of St. Paul Mercury and the rationale of ANPAC unequivocally bar

remand for want of jurisdictional amount.

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 Accordingly, we conclude that more than $50,000 was in

controversy as of the time of removal. Marcel's attempt to

stipulate to less did not defeat removal, and the district court

properly denied the motion to remand.

III.

In a well-written and succinct opinion, Marcel v. Pool Co.,

No. 91-3772, 1992 U.S. Dist. LEXIS 18792 (E.D. La. Dec. 9, 1992),

the district court granted summary judgment in favor of Pool

Company on the ground that Ledet was not in the course and scope

of his employment at the time of the accident. The court

observed that in Louisiana, "courts have found that employees

commuting to and from work are not in the course and scope of

their employment unless the employer is paying for travel

expenses. Wall v. Brown & Root, Inc., 535 So. 2d 486, 487 (La.

App. 4th Cir. 1989) [, vacated, 540 So. 2d 323 (1989)]; Gordon v.

Commercial Union Ins. Co., 503 So. 2d 190, 194 (La. App. 4th Cir.

1987) [, writ denied, 506 So. 2d 1227 (1987)]." Id. at *3.

Since Ledet was on his way from home to work and was not paid for

transportation expenses, the court reasoned that he was not in

the course and scope of employment.

The district court distinguished Michaleski v. Western

Preferred Casualty Co., 472 So. 2d 18 (La. 1985), because there,

the employee lived in employer-provided facilities at the work

site, was given a per diem allowance for food and gasoline, and

was involved in the accident while driving on his way back to the

11
work site from dinner. See Reed v. House of Decor, 468 So. 2d

1159, 1161-62 (La. 1985) (setting forth factors to be considered

in determining course and scope of employment).

As the district court concluded,

[t]he undisputed evidence here shows that Ledet's
travels to and from work were entirely personal
activities over which Pool had no control. Outside of
the ten hour work shift to which he was assigned,
defendant placed no requirements on Ledet's activities.
The mere fact that he was exercising the option to use
his employer-provided meal card prior to driving to
work clearly represents as to Pool only a marginal
connection which is legally insufficient for the
imposition of vicarious liability.

1992 U.S. Dist. LEXIS 18792, at *5-*6. Accordingly, Pool Company

can bear no liability in this matter, and the summary judgment is

AFFIRMED.

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