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Wal-Mart Super Center v. Long6/26/2003
hat the defendant need only show by a preponderance of the evidence that the amount in controversy is greater than the jurisdictional amount. Id. at 1412. However, De Aguilar II also states that to some extent, the plaintiff is "still the master of his own claim." Id. (citations omitted). The defendant must produce evidence that shows that the actual amount in controversy exceeds the jurisdictional amount provided the plaintiff has not shown that she is "legally certain" her recovery will not exceed the amount stated in the complaint. Id. De Aguilar II describes how a plaintiff might meet the legal certainty test by citing a state law which prohibits recovery in excess of the ad damnum clause. Id. However, without such a statute, "litigants who want to prevent removal must file a binding stipulation or affidavit with their complaints." Id. (citing Guance v. St. Paul Mercury, 488 U.S. 488 U.S. 950, 109 S.Ct. 38, 102 L.Ed.2d 372 (1988); In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992)). In effect, this ruling requires plaintiffs to show that they are bound irrevocably by their state pleadings. Id.
. There is good reason for the majority's overlooking or not citing subsequent cases. In my view, the following cited federal cases from Mississippi are more on point and controlling here. In Allen v. R & H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995), a Mississippi case, the court points out that removal cannot be based on conclusory allegations. Id. at 1335 (citing Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992)). The jurisdictional amount must be judged at the time of removal with post-removal affidavits allowed only if relevant to that period of time. Id. at 1135-36. If when looking at the complaint, the amount sought by the plaintiff is not "facially apparent," the district court may determine that the amount in controversy exceeds the jurisdictional amount. Id.
. Additionally, McClain v. American Intern. Recovery, Inc., 1 F. Supp. 2d 628 (S.D. Miss. 1998), is a solid example of the problem with the majority's reasoning based on De Aguilar II. The McClain court stated that "until a defendant receives in writing, a statement that suggests that a plaintiff plans to seek more than $75,000 in damages, the case is not removable to federal court" Id. at 631. The problems exist because " ven if a defendant asks a plaintiff to stipulate that the damages are below the jurisdictional amount, if the plaintiff refuses to stipulate, the case cannot be removed based solely on this refusal." Id.
Harris v. Benham Group, 2002 WL 31050999 (N.D. Miss. 2002), also lends support to my departure from the majority. Unless the defendant can meet its burden, the plaintiff may avoid federal diversity jurisdiction by pleading, in good faith, state court damages below the required jurisdictional amount. Id. at 1.
. In this case, Long's original complaint specifically alleged an amount in controversy less than the jurisdictional amount. Whether or not made in good faith, Long's complaint did not give the federal court jurisdiction. Long's amendment should have been denied as unjust since Wal-Mart has suffered actual prejudice. Therefore, I would reverse county court's order granting Long leave to amend and transferring this case to circuit court, and I would remand this case for further proceedings in the County Court of Lee County.
. For these reasons, I respectfully dissent.
COBB, J., JOINS THIS OPINION.
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