Legal Memorandum: Motion to Remove and Burden of Proof

Issue: In the Fifth Circuit, on a motion to remove to federal court, which party has the burden of proving the amount in controversy for diversity jurisdiction purposes?

The removing defendant must prove that each plaintiff has met the $75,000 jurisdictional amount set forth in § 1441.  The burden of proving this arm of the removal test is also a heavy one.  Watson v. ITT Sheraton Corp., 61 F. Supp. 2d 529, 531 (N.D. Miss. 1997).  On the basis of the complaint at the time of removal, the defendant must establish by clear evidence that each case is worth more than $75,000, the federal jurisdictional amount.  Id. at 531 (remanding because the defendant did not prove that the actual amount in controversy invoked diversity jurisdiction).

In the case of De Aguilar v. Goeing Co., 11 F.3d 55, 57 (5th Cir. 1993), in which the multiple plaintiffs sued subsequent to a plane crash and sought damages not for personal injuries, but for wrongful death and such special damages as "terror in anticipation of death."  The Court of Appeals for the Fifth Circuit has expressly stated that different standards of proof apply depending on whether the plaintiff alleged a dollar amount or not.  See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

A good-faith amount asserted in the complaint controls.  When the plaintiff does not allege a specific amount of damages in the complaint, then the burden is on the defendant to prove, by a preponderance of the evidence, that the amount in controversy exceeds the federal jurisdictional amount.  Id. at 1335.  "Removal, however, […]