IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50890
Summary Calendar
REGINA WHITE,
Plaintiff-Appellant,
versus
FCI USA, INC.
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
________________________________________
January 3, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant asserts that the district court erred in finding the $75,000 amount-in-
controversy requirement satisfied and granting summary judgment in favor of the
Defendant-Appellee. This Court affirms.
I. FACTS AND PROCEEDINGS
Plaintiff-Appellant Regina White (“White”) brought suit against Defendant-
Appellee FCI USA, Inc. (“FCI”), White’s former employer, for wrongful termination on
March 29, 2001, in the 246th Judicial District Court of El Paso Country, Texas (“state
court”). White based her suit upon Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733,
735 (Tex. 1985), which permits suits for wrongful termination where the employee was
terminated for refusal to perform illegal acts.
1
In her Original Petition, White prayed that the judgment include punitive
damages, attorney’s fees, pre-judgment interest, court costs, and compensatory damages
for lost pay, lost fringe benefits, front pay, loss of wage earning capacity, harm to
White’s credit and credit reputation, and mental anguish and emotional distress (both past
and future). The Original Petition did not specify how much monetary relief White was
seeking.
FCI removed on May 25, 2001, asserting removal jurisdiction on the basis of
diversity. In its Notice of Removal, FCI asserted that the amount in controversy
exceeded $75,000.
White filed a Motion to Remand, but the U.S. District Court for the Western
District of Texas (“district court”) denied her motion. The district court concluded that
FCI had set forth facts sufficient to show by a preponderance of the evidence that the
$75,000 amount-in-controversy requirement was met.
II. STANDARD OF REVIEW
This Court reviews a district court’s determination of the amount in controversy
de novo. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995).
“A grant of summary judgment is reviewed de novo . . . Summary judgment is
appropriate when there ‘is no genuine issue as to any material fact and the moving party
is entitled to a judgment as a matter of law.’” Quorum Health Res., L.L.C. v. Maverick
County Hosp. Dist., 308 F.3d 451, 458 (5th Cir. 2002) (citations omitted) (quoting
Conoco, Inc. v. Medic Systems, Inc., 259 F.3d 369, 371 (5th Cir. 2001)). This Court
“must view facts and inferences in the light most favorable to the party opposing the
2
motion. A factual dispute precludes a grant of summary judgment if the evidence would
permit a reasonable jury to return a verdict for the nonmoving party.” Id.
III. ANALYSIS
This appeal presents this Court with two issues: first, whether the amount-in-
controversy requirement was met, and second, whether the district court was correct in
granting summary judgment for the Defendant-Appellee.
A.
Diversity jurisdiction under 28 U.S.C. § 1332 only exists where the parties are
citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C.A. §
1332 (West 1993 & Supp. 2001). White correctly notes that the amount in controversy
should be determined at the time of filing. St. Paul Reinsurance Co. Ltd. v. Greenberg,
134 F.3d 1250, 1253 (5th Cir. 1998). “Normally, this burden is satisfied if the plaintiff
claims a sum greater than the jurisdictional requirement.” Phillips v. Kansas City S. Ry.
Co., 1995 U.S. Dist. LEXIS 12983, at *2 (1995) (citing Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992)). However, White never specified the total amount of monetary
relief she was seeking.
Where the plaintiff fails to allege a specific amount of damages, this Court has
prescribed a procedure for determining the amount in controversy:
In removal practice, when a complaint does not allege a specific amount of
damages, the party invoking federal jurisdiction must prove by a preponderance
of the evidence that the amount in controversy exceeds the jurisdictional amount.
The district court must first examine the complaint to determine whether it is
"facially apparent" that the claims exceed the jurisdictional amount. If it is not
thus apparent, the court may rely on "summary judgment-type" evidence to
ascertain the amount in controversy.
3
St. Paul Reinsurance, 134 F.3d at 1253 (citations omitted); De Aguilar v. Boeing Co., 11
F.3d 55, 57-58 (5th Cir. 1993) [hereinafter De Aguilar I].
The district court examined the Original Petition on its face and evaluated the
evidence presented by FCI. The district court concluded it was “more probable than not”
that the lengthy list of compensatory and punitive damages sought by White, when
combined with attorney’s fees, would exceed $75,000. Allen, 63 F.3d at 1336
(concluding that a punitive damages claim was “more likely than not” to exceed the
jurisdictional amount). In fact, the district court concluded that the compensatory
damages or punitive damages alone would “in all likelihood” exceed $75,000. Id. The
district court also noted White’s admission that her damages “[did] not yet equal”
$75,000 but “it [was] possible that [they] will exceed $75,000.00 at the time of trial.” On
the basis of this evidence and analysis, the district court found that the amount-in-
controversy requirement was met.
White argues that the evidence presented by FCI was insufficient to meet the
preponderance of the evidence test. This Court articulated the standard for insufficient
evidence in Asociacion Nacional De Pescadores A Pequena Escala O Artesanales De
Colombia (ANPAC) v. Dow Quimica De Columbia S.A., 988 F.2d 559 (5th Cir. 1993)
[hereinafter Dow Quimica]:
At least where the following circumstances are present, [the removing party's
burden to establish jurisdiction] 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 claims; and (3) the plaintiffs timely contested removal
with a sworn, unrebutted affidavit indicating that the requisite amount in
controversy was not present.
De Aguilar I, 11 F.3d at 57 (quoting Dow Quimica, 988 F.2d at 566).
4
First, White’s Original Petition did not specify an amount of damages. Id. Second,
the district court concluded that it was facially apparent that the amount in controversy
exceeded $75,000. Id. Third, FCI has offered more than a conclusory statement in
support of their notice of removal. De Aguilar I, 11 F.3d at 57-58 (contrasting the
substantive evidence, including “testimonial evidence and published precedent,” offered
by the removing party in that case with the “mere scintilla of evidence” presented by the
removing party in Dow Quimica); Allen, 63 F.3d at 1335 (citing Gaus, 980 F.2d at 566)
(“removal . . . cannot be based simply upon conclusory allegations”). In its
interrogatories, FCI asked White to state the full amount of money damages she was
seeking. White identified three categories of money damages she was seeking: lost
income, mental anguish and emotional distress, and punitive damages. For the first
category, White reported that she was incurring an economic loss at the rate of $100,000
per year and had already suffered a loss of approximately $13,000. White asserted that
the latter two categories “cannot be precisely quantified” and that she would rely on the
jury to “assess what is fair.” Towards this end, White identified six doctors who would
testify about her mental anguish and emotional distress.
In its Requests for Admission, FCI asked White to admit or deny that she was
seeking damages of $75,000 or more. White admitted that her damages “[did] not yet
equal” $75,000 but “it [was] possible that [they] will exceed $75,000.00 at the time of
trial.” Through this language, White implied that the amount in controversy was not
limited to the damages she suffered before her filing. Instead, White indicated that she
was seeking continuing and future damages as well.
5
Fourth, White failed to timely contest the removal with a sworn, unrebutted
affidavit indicating that the requisite amount in controversy was not present. De Aguilar
I, 11 F.3d at 57.
This Court has held that “the jurisdictional facts that support removal must be
judged at the time of the removal.” Allen, 63 F.3d at 1335. At the time of removal, it was
apparent from the face of the Original Petition and the evidence presented by FCI that the
amount in controversy exceeded $75,000. The preponderance of the evidence thus
indicated that the amount-in-controversy requirement was met. This Court has held that
“once a defendant is able to show that the amount in controversy exceeds the
jurisdictional amount, removal is proper, provided plaintiff has not shown that it is
legally certain that his recovery will not exceed the amount stated.” De Aguilar v. Boeing
Co., 47 F.3d 1404, 1412 (5th Cir. 1995). White failed to specify an amount of damages
less than $75,000 or to present any substantive evidence in support of her motion to
remand. White thus failed to show that it was legally certain that her recovery will not
exceed $75,000.
Based on the preponderance of evidence, this Court affirms the district court’s
conclusion that the amount-in-controversy requirement was met.
B.
Texas law permits indefinite employment to be terminated at-will and without
cause unless the termination results from the employee’s refusal to commit an unlawful
act. East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888) (holding that
an indefinite term of service may be terminated by either party without cause); Sabine
Pilot, 687 S.W.2d at 735. In order to establish a prima facie case of wrongful termination
6
under Sabine Pilot, the plaintiff must prove that: (1) she was required to commit an
illegal act which carries criminal penalties; (2) she refused to engage in the illegality; (3)
she was discharged; (4) the sole reason for her discharge was her refusal to commit an
unlawful act. Sabine Pilot, 687 S.W.2d at 735; Burt v. City of Burkburnett, 800 S.W.2d
625, 626-27 (Tex. App.-Fort Worth 1990, writ denied).
First, FCI submitted evidence, in the form of numerous falsified NAFTA
Certificates of Origin bearing White’s signature, indicating that White committed
unlawful acts. 18 U.S.C.A. § 1001(a) (West 2000) (specifying that the making of a false
statement to any branch of the U.S. Government is a felony punishable by fine or
imprisonment). However, White did not submit any evidence indicating that she was
required by FCI to commit the unlawful acts. Burt, 800 S.W.2d at 626-27 (holding that
the plaintiff must prove that the employer required, not just requested, the employee to
commit unlawful acts). White admits in her own deposition that the catalyst for her
unlawful acts was her subjective interpretation of her supervisor’s remarks rather than
any direction to commit the unlawful acts.
Second, FCI submitted evidence, in the form of numerous falsified NAFTA
Certificates of Origin bearing White’s signature, that White did not refuse to commit the
unlawful acts. Third, it is undisputed that White was discharged.
Fourth, White failed to demonstrate either a refusal to commit unlawful acts or
that such a refusal was the sole reason for her discharge. The evidence of an ongoing
reduction in force and financial difficulties at FCI since July 2000 stands unrefuted. FCI
contends that White was discharged as part of the reduction in force, and White does not
provide any substantive evidence to the contrary. Eason v. Thaler, 73 F.3d 1322, 1325
7
(5th Cir. 1996) (holding that “mere conclusory allegations are not competent summary
judgment evidence, and . . . are insufficient, therefore, to defeat a motion for summary
judgment”).
Based on White’s failure to meet the requirements for a prima facie case of
wrongful termination under Sabine Pilot, this Court affirms the district court’s grant of
summary judgment in favor of FCI.
8