United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE SENIOR UNITED STATES DISTRICT JUDGE
Omar Hernandez Jimenez ("Plaintiff") sued Defendant
Geovera Specialty Insurance Company ("Defendant")
in the 215th District Court of Harris County,
Texas. Defendant timely removed based on
diversity jurisdiction. Pending before the court is
Plaintiff's Motion to Remand (Docket Entry No. 5). For
the reasons stated below, Plaintiff's Motion to Remand
will be denied.
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 his
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 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,
Defendant responds that Plaintiff's allegations and
stipulation do not effectively defeat jurisdiction and that
the preponderance of the evidence supports that the amount in
controversy is more than $75, 000.
Original State Petition
state court Texas Rule of Civil Procedure 4 7 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, pre-judgment 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-0 2 6 4 -D, 2016 WL 312
6 2 3 7, at * 2 n . 2 (N . D . Tex . June 3, 2016) .
Furthermore, damages alleged in a Texas state court petition
cannot prove that the amount in controversy does not exceed
that amount as a legal certainty because a plaintiff 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 $39, 870.03 for damages, plus $4, 300 for other
expenses and attorney's fees. 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 therefore evidences that
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.