United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE, SENIOR UITED STATES DISTRICT JUDGE
Nicolas Martinez ("Plaintiff") sued Defendant
Liberty Insurance Corporation ("Defendant") in the
61st District Court of Harris County, Texas. Defendant timely
removed based on diversity jurisdiction. Pending before
the court is Plaintiff's First Amended Motion to Remand
("Motion to Remand") (Docket Entry No. 12). For the
reasons stated below, Plaintiff's Motion to Remand will
28 U.S.C. § 1441(a) any state court civil action over
which a federal court would have original jurisdiction may be
removed from state to federal court. "The party seeking
to assert federal jurisdiction . . . has the burden of
proving by a preponderance of the evidence that subject
matter jurisdiction exists." New Orleans &
Gulf Coast Railway Co. v. Barrois, 533 F.3d 321, 327
(5th Cir. 2008). Jurisdictional facts must be judged as of
the time of the filing of the state court petition. White
v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir.
2003) (per curiam). "Any ambiguities are construed
against removal because the removal statute should be
strictly construed in favor of remand." Manguno v.
Prudential Property and Casualty Ins. Co., 276 F.3d 720,
723 (5th Cir. 2002).
district courts have original jurisdiction over civil actions
between citizens of different states where the amount in
controversy exceeds $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332 (a). When removal is premised
upon diversity jurisdiction, courts determine the amount in
controversy in light of "the claims in the state court
petition as they existed at the time of removal."
Manguno, 276 F.3d at 723. Generally, the amount
alleged in the state court petition determines the amount in
controversy so long as it was pled in good faith. Allen
v. R & H Oil & Gas Co., 63
F.3d 1326, 1335 (5th Cir. 1995) . If the jurisdictional
amount is not apparent from the face of the state court
petition, the court may rely on summary judgment-type
evidence. St. Paul Reinsurance Co., Ltd. v.
Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998).
defendant shows that on the face of the state court petition
or by a preponderance of the evidence the amount in
controversy exceeds $75, 000, the plaintiff may defeat
removal by showing with legal certainty that the claims
alleged are for less than $75, 000. De Aguilar v. Boeing
Co., 47 F.3d 1404, 1412 (5th Cir. 1995) . A Texas
plaintiff who wishes to avoid removal by limiting their
recovery to less than $75, 000 as a matter of law must file a
binding stipulation or affidavit with his original state
petition. St. Paul Reinsurance, 134 F.3d at 1254
parties agree they are citizens of different states and
dispute only whether the amount in controversy in this action
exceeds $75, 000. Plaintiff argues the action should be
remanded because (1) his state court petition alleges that he
seeks a maximum of $74, 000, (2) his pre-suit demand letter
to Defendant shows that the amount in controversy was less
than $75, 000, and (3) Plaintiff has filed a binding
stipulation that he and his attorney will not seek or recover
more than $75, 000. Defendant responds that Plaintiff's
allegations and stipulation do not effectively defeat
jurisdiction and that the preponderance of the evidence
supports an amount in controversy over $75, 000.
Original State Petition
state court Texas Rule of Civil Procedure 47 requires
plaintiffs to state in an original petition the range of
monetary relief sought among five pre-defined ranges.
Tex.R.Civ.P. 47(c). The lowest range is "monetary relief
of $100, 000 or less, including damages of any kind,
penalties, costs, expenses, prejudgment interest, and
attorney fees." Id. Texas rules do not permit
plaintiffs to request a specific amount of damages beyond one
of the ranges. See id.; Espinoza v. Allstate
Texas Lloyd's, 222 F.Supp.3d 529, 535 (W.D. Tex.
2016). Accordingly, when a plaintiff alleges in his Texas
state court petition that his claim does not exceed $75, 000,
his pleading contravenes Texas rules and is an attempt to
circumvent federal diversity jurisdiction. Id.; Chavez v.
State Farm Lloyds, Civil Action No. 7:15-CV-487, 2016 WL
641634, at *2 (S.D. Tex. Feb. 18, 2016); see also A
& C Discount Pharmacy, L.L.C. v. Caremark,
L.L.C., Civil Action No. 3:16-CV-O 2 6 4 -D, 2 O 16 WL
312 6 2 3 7, at * 2 n . 2 (N . D . Tex. June 3, 2 O 16) .
Furthermore, alleged damages stated in a Texas state court
petition cannot prove that the amount in controversy does not
exceed that amount as a legal certainty because plaintiffs
may supersede those allegations with amended pleadings.
See, e.g., Sosa v. Central Power &
Light, 909 S.W.2d 893, 895 (Tex. 1995)
("Contrary to statements in live pleadings, those
contained in superseded pleadings are not conclusive and
indisputable judicial admissions.").
Original Petition alleges that he seeks relief in Rule
47's under-$100, 000.00 range and further specifies that
he seeks "a maximum amount of damages that does not
exceed the sum or value of $74, 000, exclusive of interest
and costs." The paragraph then states: "Removal
would be improper because there is no federal question . . .
[and] the matter in controversy does not exceed the sum or
value of $75, 000." This pleading contravenes Texas state
court rules and would not have bound Plaintiff to recover
less than $75, 000; it serves solely to avoid federal
jurisdiction. The alleged maximum of $74, 000 was not made in
good faith and therefore does not control the action's
amount in controversy. Espinoza, 222 F.Supp.3d at
argues that his pre-litigation demand letter shows that the
true amount in controversy is less than $75, 000. The demand
letter sought $29, 460.55 for damages, plus $3, 850 for
attorney's fees and other expenses. It also
threatened litigation under the Texas Deceptive Trade
Practices Act where the damages would be subject to trebling,
although Plaintiff stated he would not seek more than $75,
000 if he sued. But that statement did not bind Plaintiff;
a plaintiff must file a binding stipulation along with the
complaint to conclusively establish the amount in controversy
and avoid removal. See St. Paul Reinsurance, 134
F.3d at 1254 n.18; Maley v. Design Benefits Plan,
Inc., 125 F.Supp.2d 197, 200 (E.D. Tex. 2000).
Disregarding the letter's non-binding promise, the letter
includes a claim for treble damages plus attorney's fees,
which exceed $75, 000. The demand letter accordingly shows the
amount in controversy exceeds $75, 000. See St. Paul
Reinsurance, 134 F.3d at 1255 (considering a demand
letter to find the amount in controversy). Accordingly, the
court has diversity jurisdiction over the action unless
Plaintiff can show that it is a legal certainty he will not
recover more than $75, 000.