Simon v. Wal-Mart Stores, Inc.

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.