UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-30483 Summary Calendar _____________________

MARY BLANCHARD, on behalf of the minor child Megan Blanchard,

Plaintiff-Appellant,

versus

WAL-MART STORES, INC.,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (99-CV-455-L) _________________________________________________________________

November 26, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Mary Blanchard appeals the district court’s decision to

dismiss her case with prejudice in response to Wal-Mart’s 12(b)(6)

motion. The district court held that Louisiana law precluded

Blanchard’s claim. Blanchard now argues that the district court

lacked subject matter jurisdiction because the amount in

controversy was too low to establish diversity jurisdiction. She

had attached a stipulation to her response to Wal-Mart’s motion to

dismiss that damages would not exceed $75,000.

The amount in controversy in this case establishes diversity

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. jurisdiction. In order to defeat subject matter jurisdiction on

that basis, it must appear to a legal certainty that the claim

asserted is for less than $75,000. De Aguilar v. Boeing Co.,

(5th Cir. 1995). The district court did not find

such a legal certainty, and we see no reason to overturn that

determination in the face of the injuries alleged, including a

severely fractured skull, concussion, and emotional distress.

Blanchard’s proposed stipulation is irrelevant. According to

St. Paul Mercury Indemnity Co. v. Red Cab Co.,

, 289-

90,

,

(1938), “[e]vents occurring

subsequent to the institution of suit which reduce the amount

recoverable below the statutory limit do not oust jurisdiction.”

This circuit recently reaffirmed that this is still good law in

De Aguilar,

. The district court was right to

ignore Blanchard’s stipulation.

For these reasons, the district court decision is

A F F I R M E D.

2