United States District Court, S.D. Texas, Laredo Division
MEMORANDUM AND ORDER
Garcia Marmolejo, United States District Judge
the Court are Defendant's Notice of Removal and
Plaintiffs Motion to Remand. As explained below, Plaintiffs
motion, (Dkt. No. 4), is GRANTED, and this
case is REMANDED to state court.
February 2019, Plaintiff sued Defendant in state court,
alleging various insurance-related causes of action for storm
damage to Plaintiffs property. (Dkt. No. 1-2). In accordance
with Rule 47 of the Texas Rule of Civil Procedure, the
complaint recited that "Plaintiff seeks only monetary
relief of $100, 000 or less including damages of any kind,
penalties, costs, pre-judgment interest and attorney's
fees." (Dkt. No. 1-2 at 10). The complaint specified,
further, that the damages in this case "do not exceed
$74, 999.99," excluding interest and costs.
complaint also included a "binding stipulation"
that Plaintiff would "neither seek nor accept from
Defendant any damages, recovery, or award" that exceeded
$74, 999.99, excluding interest and costs. (Id.).
The complaint defined "damages, recovery, or award"
to include applicable statutory damages, exemplary damages,
punitive damages, penalties, and attorney's fees.
(Id. at 10-11).
April 2019, Defendant timely removed to this Court, asserting
that the parties are completely diverse and the amount in
controversy likely exceeds $75, 000. (Dkt. No. 1 at 3). In
its Notice of Removal, Defendant urges the Court to disregard
Plaintiffs binding stipulation as a bad faith attempt to
avoid federal jurisdiction. (Id. at 4-7). Defendant
maintains that, without the stipulation, Plaintiffs claimed
damages exceed the jurisdictional threshold. (Id.).
in turn, moved to remand to state court, arguing that the
damages demand and binding stipulation in his complaint fix
the amount in controversy below $75, 000. (Dkt. No. 4 at 2).
Appended to his motion is a second "binding
stipulation," which reaffirms that: (1) the amount in
controversy does not exceed $75, 000; (2) Plaintiff does not
seek damages above $75, 000; and (3) "Plaintiff
understands and agrees that [his] total recovery is limited
to an amount less than $75, 000." (Dkt. No. 4-1 at 1).
The stipulation is signed by Plaintiffs attorney and
accompanied by a notarized verification signed by Plaintiff.
(Id. at 2). In its response, Defendant counters that
the Court may not consider Plaintiffs post-removal
stipulation because the amount in controversy was not
ambiguous at the time of removal. (Dkt. No. 8 at 2-3).
general, a defendant may remove a case to federal court if
the case originally could have been filed there. 28 U.S.C.
§ 1441(a). The "removing defendant bears the burden
of establishing removal jurisdiction." Ashford v.
Aeroframe Servs., L.L.C., 907 F.3d 385, 395 (5th Cir.
2018). An action may be removed under 28 U.S.C. § 1332
if the parties are completely diverse and the "amount in
controversy is greater than $75, 000 exclusive of interests
and costs." Allen v. Walmart Stores, L.L.C.,
907 F.3d 170, 183 (5th Cir. 2018). In determining
jurisdiction, the Court "must 'resolve all contested
factual issues and ambiguities of state law in favor of the
plaintiff.'" Allen, 907 F.3d at 183
(citation omitted); Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
diversity cases, typically "the sum demanded in good
faith in the initial pleading shall be deemed to be the
amount in controversy." 28 U.S.C. § 1446(c)(2). In
that regard, a plaintiff who wishes to try his case in state
court may defeat removal by suing for less than $75, 000,
even if he otherwise would be entitled to more. De
Aguilar v. Boeing Co., 47 F.3d 1404, 1410 (5th Cir.
1995) (citing St. Paul Mercury Indemnity Co. v. Red Cab
Co., 303 U.S. 283, 294 (1938)). After all, the
"[p]laintiff is, to some extent, still the master of his
own claim." Id.
pleadings will not control the amount in controversy,
however, when "made in bad faith or when state practice
does not permit demand for a specific sum of damages."
Cavazos v. Allstate Vehicle & Prop. Ins. Co.,
7:17-CV-368, 2017 WL 11317904, at *2 (S.D. Tex. Dec. 12,
2017) (citing 28 U.S.C. § 1446(c)(2)); De
Aguilar, 47 F.3d at 1410. Under those circumstances, the
defendant must prove, by a preponderance of the evidence,
that the actual amount in controversy exceeds $75, 000.
De Aguilar, 47 F.3d at 1412. The preponderance
standard "forces the defendant to do more than point to
a state law that might allow the plaintiff to
recover more than what is pled." Id. Rather, a
defendant may satisfy this burden by "(1) showing it is
'apparent from the claims of the petition that the claims
are likely to exceed $75, 000' or (2) setting forth
'summary judgment-type evidence of facts in controversy
that support a finding of the requisite amount.'"
Chavez v. State Farm Lloyds, 15-CV-487, 2016 WL
641634, at *l (S.D. Tex. Feb. 18, 2016) (quoting Manguno
v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720,
723 (5th Cir. 2002)), aff'd 746 Fed.Appx. 337
(5th Cir. 2018).
defendant makes that showing, a plaintiff can avoid removal
only if he can demonstrate that it is "legally certain
that his recovery will not exceed the amount stated in the
state complaint." De Aguilar, 47 F.3d at 1412.
If a plaintiff cannot cite a state law that bars such
recovery, he can file a "binding stipulation" with
his complaint that limits his possible recovery to an amount
below the jurisdictional threshold. Id. at 1412. To
determine whether a stipulation is binding, the "general
principle is that plaintiffs will have to show that they are
bound irrevocably by their state pleadings."
Id. at n.10.
"jurisdictional facts that support removal must be
judged at the time of the removal." Gebbia v.
Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.
2000). 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." Id. However,
post-removal filings may be considered if the "basis for
jurisdiction is ambiguous at the time of removal."
Id. In that case, even though the court is
considering post-removal filings, it is "still examining
the jurisdictional facts as of the time the case is
removed." 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.