Case Information
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA
KEITH UNDERDOWN, JR. CIVIL ACTION VERSUS NO. 08-5172 INDIANA LUMBERMENS MUTUAL SECTION "C" (2) INSURANCE COMPANY, ET AL
ORDER AND REASONS
This removed matter comes before the Court on the issue whether the jurisdictional amount existed at the time of removal. Having reviewed the record, the memoranda of the parties [1] and the law, the Court has determined that remand is appropriate for the following reasons.
The plaintiff seeks damages for personal injuries allegedly sustained as the result of automobile accident. This matter was removed on the basis of diversity jurisdiction.
With regard to the existence of the jurisdictional minimum, the parties may neither consent to nor waive federal subject matter jurisdiction. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848 (5th Cir. 1999). Bare assertions by the removing party are insufficient to invest a federal court with jurisdiction. Asociacion Nacional De Pescadores A Pequena
*2 Escala O Artesanales De Colombis (ANPAC) v. Dow Quimica De Colombia, S.A., 988 F.2d 559 (5th Cir. 1993), cert. denied, 114 S.Ct. 685 (1994). Instead, the Fifth Circuit advises the district courts that they should review their subject matter jurisdiction in cases such as this. Id.: Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999). In order to remain in federal court, the removing parties must prove by a preponderance of the evidence that the jurisdictional minimum exists. Id. This showing may be made by either: (1) demonstrating that it is facially apparent that the claims are likely above the jurisdictional minimum; or (2) setting forth the facts in controversy that support a finding of the jurisdictional minimum. Id. It is the recognized burden of the party invoking jurisdiction "both to allege with sufficient particularity the facts creating jurisdiction, in view of the nature of the right asserted, and, if appropriately challenged, or if inquiry be made by the court of its own motion, to support the allegation." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 287, fn. 10 (1938), citing. McNutt v. General Motors Corp., 298 U.S. 178, 182-189 (1936); Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039 (5th Cir. 1982), cert. denied, 459 U.S. 1107 (1983).
The defendant has not met its burden to show that the jurisdictional amount is facially apparent for present purposes, nor has it made a showing sufficiently particularized to meet its burden. The plaintiff alleges that "this case involves nothing more than at most a five and one-half ( ) month soft tissue injury to plaintiff with
*3 roughly in medical bills." (Rec. Doc. 12).
Based on the record and the law, the Court finds that the defendant has not established subject matter jurisdiction. In addition, the Court is mindful that removal jurisdiction is strictly construed. See: Shamrock Oil &; Gas Corp. v. Sheets, 313 U.S. 100 (1941); Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986); Butler v. Polk, 592 F.2d 1293 (5th Cir. 1979); C. Wright, A. Miller &; E. Cooper, 14B Federal Practice Procedure: Civil, §3721. When subject matter jurisdiction is doubtful, remand is appropriate. C. Wright, A. Miller &; E. Cooper, 14C Federal Practice Procedure: Civil, §3739.
Accordingly,
IT IS ORDERED that this matter is REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana for lack of jurisdiction under 28 U.S.C. § 1447(c).
New Orleans, Louisiana, this day of February, 2009.
HELEN G. BEKKELAN UNITED STATES DISTRICT JUDGE
NOTES
The Court will consider the relevant motions as memoranda in response to the Court's order.