United States District Court, S.D. Mississippi, Northern Division
ORDER AND OPINION
BRAMLETTE UNITED STATES DISTRICT JUDGE.
cause is before the Court on a Motion to Remand [Doc.
6] filed by Plaintiff Frances McNamee, a Motion to
Dismiss [Doc. 13] filed by Defendant Larry
Hood, and a Motion for Extension of Time to Serve Process
[Doc. 16] filed by McNamee. Having
considered the motions, the parties' responses, and
applicable statutory and case law, and being otherwise fully
informed in the premises, the Court finds as follows:
McNamee sued her car insurer, Alfa Insurance Corporation
(“Alfa”), and a local insurance agent, Larry
Hood, in state court. McNamee and Hood are Mississippi
citizens; Alfa is an Alabama corporation.
removed the case to this Court, invoking diversity
jurisdiction and contending that Hood, the non-diverse
forum-defendant, was improperly joined.
Court agreed that Hood was improperly joined, but held that
the amount in controversy was ambiguous as of the date Alfa
removed the case. [Doc. 18] In response, McNamee offers an
affidavit limiting her recovery to below the jurisdictional
minimum of $75, 000, exclusive of interest and costs. [Doc.
Court may consider McNamee's post-removal affidavit
because the amount in controversy was ambiguous as of the
date Alfa removed the case. Gebbia v. Wal-Mart Stores,
Inc., 233 F.3d 880, 883 (5th Cir. 2000). And given this
ambiguity, McNamee's affidavit clarifies -- rather than
impermissibly modifies -- the jurisdictional facts as of the
date of removal. St. Paul Reinsurance Co. v.
Greenberg, 134 F.3d 1250, 1254 n. 18 (5th Cir. 1998).
is warranted when a plaintiff submits a binding post-removal
affidavit clarifying that the amount in controversy was not
met as of the date of removal. Asociacion Nacional de
Pescadores a Pequena Escala O Artesanales de Colombia (ANPAC)
v. Dow Quimica de Colombia, S.A., 988 F.2d 559, 566 (5th
Cir. 1993), abrogated on other grounds by Marathon Oil
Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998).
has submitted an affidavit; the question is whether it is
binding. A post-removal affidavit is binding if, in it, the
plaintiff renounces her ability to recover more than the
jurisdictional minimum in state court. See, e.g., Bienemy
v. Hertz Corp., 16-15413, 2016 WL 6994200, at *3 (E.D.
La. 2016); McGlynn v. Huston, 693 F.Supp.2d 585, 593
(M.D. La. 2010); (stipulation must state that plaintiff will
not accept more than the jurisdictional minimum if awarded
that amount in state court); Printworks, Inc. v. Dorn
Co., 869 F.Supp. 436, 440 (E.D. La. 1994) (same).
affidavit, McNamee swears that she neither seeks nor will
accept a sum exceeding the jurisdictional minimum. [Doc.
20-1]. This statement is binding. And in fact, it operates as
a judicial admission precluding McNamee from seeking or
recovering damages greater than the jurisdictional minimum in
state court. Arnold v. State Farm Fire and Cas. Co.,
277 F.3d 772, 775 n. 3 (5th Cir. 2001).
affidavit is binding and clarifies that the amount in
controversy was not met when Alfa removed this case. The
Court lacks jurisdiction, and remand is required. See
Drinkard v. Murphy Oil USA, Inc., 3:04-CV-303-CWR,
2014 WL 10475642, at *2 (S.D.Miss. 2014); (ordering remand
after considering post-removal affidavit); Lewis v.
Charley Carriers, Inc., 5:09-CV-170-DCB, 2010 WL
1409997, *3 (S.D.Miss. 2010) (same); F.M.B. v. Mega Life
& Health Ins. Co., 3:08-CV-530-DPJ, 2009 WL 426435,
at *2 (S.D.Miss. 2009) (same).
IT IS HEREBY ORDERED that the Motion to
Remand [Doc. 6] filed by Plaintiff Frances
McNamee is GRANTED;
ORDERED that the Motion to Dismiss [Doc.
13] filed by Defendant ...