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PostPosted: Wed Jul 18, 2007 9:11 am 
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The cases relied on by defendant for its argument that it now appears to a legal certainty that plaintiffs cannot recover the jurisdictional amount are also distinguishable. For example, in Amn. Mut. Liab, Ins. Co. v. Campbell Lumber Mfg. Corp., the plaintiff commenced the suit in federal court, it was before the Court on defendant's motion to dismiss, and the plaintiff conceded that his claim was for substantially less than the jurisdictional amount. 329 F.Supp. 1283, 1286 (N.D.Ga.1971). In this case, plaintiffs commenced this suit in state court, it is before the Court on a motion to remand, not a motion to dismiss, and plaintiffs have not conceded that their claims are below the jurisdictional amount. In fact, plaintiffs have amended their complaint since removal to assert claims for a greater amount of damages than in the original complaint. See also Swafford v. Transit Cas. Co., 486 F.Supp. 175, 177 (N.D.Ga.1980) (it did not appear to a legal certainty that the plaintiff could recover less than the jurisdictional minimum where he conceded that his insurance claim was for less than the requisite amount but he could not delete his punitive damages claim to divest the court of jurisdiction).

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PostPosted: Wed Jul 18, 2007 9:12 am 
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Defendant contends that plaintiffs have overestimated the amount in controversy in the complaint. However, plaintiffs' claim, “when it is specific and in a pleading signed by a lawyer, deserves deference and a presumption of truth.â€

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Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:12 am 
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Plaintiffs insist that the $75,000 threshold is not satisfied in this case, inasmuch as each of the six damages counts set forth in the Complaint specifically caps the damages sought in the amount of $74,000, plus costs. To foreclose defendants' attempt to multiply the $74,000 limitation across each of the six damages claims to compute the total amount in controversy, plaintiffs also point to their clarifying affidavits submitted with their Motion to Remand, wherein they aver that they do not seek and will not accept more than $74,000 in damages for the case as a whole.FN6 FN6. Under firmly entrenched Circuit precedent, these affidavits are properly considered to clarify the amount in controversy at the time of removal. See, e.g., Sierminski v. Transouth Financial Corp., 216 F.3d 945, 949 (11th Cir.2000) (authorizing district courts to consider post-removal evidence in assessing removal jurisdiction, with the proviso that post-petition affidavits are allowable only if relevant to ascertaining jurisdictional facts at the time of removal); Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F .3d 805, 808 (11th Cir.2003) (crediting plaintiff's counsel's representation in motion to remand that plaintiff does not seek and would not accept damages in excess of jurisdictional amount); Brooks v. Pre-Paid Legal Servs., Inc., 153 F.Supp.2d 1299, 1300-01 (M.D.Ala.2001) (observing that courts routinely give effect to binding, post-removal stipulations). Contrary to defendants' contention, allowing these affidavits will not prejudice defendants, inasmuch as the affidavits do nothing more than reinforce and clarify what the Complaint already says, to-wit: that plaintiffs seek a maximum of $74,000 in damages in this action. These circumstances are plainly distinguishable from the authorities relied on by defendants in attempting to exclude the affidavits, as there is no reason to believe that plaintiffs filed them in an attempt to manipulate these proceedings, changing tack abruptly and concocting jurisdictional facts to limit their damages merely because this litigation took a turn for the worse. Compare Bullock v. United Ben. Ins. Co., 165 F.Supp.2d 1255, 1259 (M.D.Ala.2001) (refusing to consider affidavits limiting damages below jurisdictional threshold where plaintiff had previously filed an unsuccessful motion to remand on fraudulent joinder grounds, such that her damage limitation was “a seemingly underhanded tacticâ€

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:12 am 
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“A plaintiff's subjective belief, alone, cannot be the controlling factor where, pre-trial, there is ‘[a] showing that, as a legal certainty, [the] plaintiff cannot recover the jurisdictional amount.â€

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:13 am 
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The question whether an action properly removed can be remanded based on subsequent elimination of federal jurisdiction is not well settled, see Carnegie-Mellon University v. Cohill, 41 FEP Cases 1046 (3d Cir.), vacated en banc, 41 FEP Cases 1888 (1986), cert. granted, 479 U.S. 1083, 107 S.Ct. 1283, 94 L.Ed.2d 141 (1987). Pepsico, Inc. v. Wendy's Intern., Inc., 118 F.R.D. 38 S.D.N.Y.,1987.

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:13 am 
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Irving Trust Co. v. Century Export and Import, S.A., 464 F.Supp. 1232, 1236 (S.D.N.Y.1979) (removal jurisdiction), there is excellent reason to believe that, on its face, § 1447(c) dictates remand if jurisdictional defects arise after removal.

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:14 am 
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The Supreme Court has held that Fed.R.Civ.P. 15 was designed to “facilitate the amendment of pleadings except where prejudice to the opposing party would result.â€

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:14 am 
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Thus, the long-settled (and salutary) policy that a plaintiff cannot artificially force a retreat to the first (state) forum by embarking purposefully on post-removal steps designed exclusively to foster remand, see generally St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 292-93, 58 S.Ct. 586, 591-92, 82 L.Ed. 845 (1938); Swafford v. Transit Casualty Co., 486 F.Supp. 175, 176-77 (N.D.Ga.1980); Corcoran v. Pan American World Airways, Inc., 194 F.Supp. 840, 841 (D.Mass.1961).

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:15 am 
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American Mutual Liability Insurance Co. v. Campbell Lumber Manufacturing Corp., 329 F.Supp. 1283, 1285-86 (N.D.Ga.1971) (good faith error on part of plaintiff, who had mistakenly overstated amount in controversy, nevertheless despoiled federal diversity jurisdiction when ultimately discovered). In American Mutual Liab. Ins. Co. v. Campbell Lumber Mfg. Corp., 329 F.Supp. 1283, 1284 (N.D.Ga.1971), the plaintiff filed an action for amounts due on insurance contracts. The plaintiff was forced to estimate its damages claim because certain of defendant's records were not available to it. Id. at 1285. During post-filing discovery, the plaintiff learned that the actual amount in controversy was below the statutory minimum. Id. The court found that the maximum amount recoverable on the plaintiff's theory never varied, and noted that the correct amount in controversy was ascertainable at the time the action was filed. Id. at 1286. Thus, in dismissing the action, the court reasoned that the plaintiff's realization that its earlier estimation of damages was erroneous was not an “event,â€

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:15 am 
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We accept Tongkook's assertion that, at the time it instituted suit, it believed the amount in controversy exceeded the statutory jurisdictional amount. However, good faith has an objective element, and we cannot ignore what pre-trial discovery revealed-that from the outset, Tongkook, to a “legal certainty,â€

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:15 am 
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Professor Moore refers to American Mutual as a “well-known caseâ€

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:16 am 
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Subject matter jurisdiction either exists or it does not. And if the latter, then it cannot be conferred by estoppel any more than it can be conferred by the consent of the parties. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982); California v. LaRue, 409 U.S. 109, 112 n. 3, 93 S.Ct. 390, 394 n. 3, 34 L.Ed.2d 342 (1972), reh'g denied*1571 , 410 U.S. 948, 93 S.Ct. 1351, 35 L.Ed.2d 615 (1973); Duffy v. Quattrocchi, 576 F.Supp. 336, 341 (D.R.I.1983).

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:16 am 
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Where face of complaint shows that suit cannot involve necessary amount for removal from state to Federal District Court, case must be remanded, but fact that face of complaint shows that defendant has a valid defense, if asserted, to all or a portion of claim, or fact that District Court's rulings after removal reduce amount recoverable below jurisdictional requirement do not justify remand. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845, U.S.Ind., February 28, 1938 (No. 274.)

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:17 am 
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Challenge to Diversity Based on Amount in Controversy. Finally, plaintiff argues that the “amount in controversy thus far has not been plea....â€

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David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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PostPosted: Wed Jul 18, 2007 9:17 am 
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Here, plaintiffs' only argument in support of reconsideration is that they “attempted to stipulateâ€

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Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


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