United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 5, 2003 _____________________________________ Charles R. Fulbruge III No. 02-30836 Clerk

MICHAEL L. SCHWARTZ

Plaintiff - Appellant

v.

AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY INC.

Defendant - Appellee

__________________________________________________

Appeal from the United States District Court For the Eastern District of Louisiana (01-CV-646) __________________________________________________

Before DAVIS, BENAVIDES, Circuit Judges, and RESTANI,* District

Judge.

PER CURIAM:**

Michael L. Schwartz (“Schwartz”) appeals the district

court’s grant of summary judgment in favor of American Express

Travel Related Service Company, Inc. (“AETRS”) in his suit for

damages associated with AETRS’s alleged unlawful cancellation of

his lines of credit. Schwartz contends that the district court’s

* Judge, U.S. Court of International Trade, sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. judgment must be vacated for lack of subject matter jurisdiction

and the suit remanded to state court.

Schwartz filed a petition in the Civil District Court for

the Parish of Orleans seeking relief for the “severe anxiety,

emotional distress, humiliation and embarrassment both past,

present and future” he suffered, as well as past and present

medical expenses incurred as a result of AETRS’s termination of

his credit. Schwartz also asserted an independent claim for

intentional infliction of emotional distress. AETRS removed the

suit to federal court on March 21, 2001, without objection.

AETRS filed a counterclaim seeking payment of the balances on

Schwartz’s cards, and Schwartz filed an amended complaint

alleging that he also suffered “substantial financial loss as a

result of American Express’s misrepresentation.” In his

deposition testimony, Schwartz alleged that as a result of his

mental instability he lost a potential sale of his restaurant,

the Camellia Grill in New Orleans. AETRS filed a Motion for

Summary Judgment, and the district court granted summary judgment

in favor of AETRS.

The appellate court reviews the question of subject matter

jurisdiction de novo. Hussain v. Boston Old Colony Insurance.

Co.,

(5th Cir. 2002).

A state court action may be removed to federal court under

. That statute provides in relevant part:

-2- (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

(emphasis added). “The removing party bears the burden of

showing that federal jurisdiction exists and that removal was

proper.” Manguno v. Prudential Property and Cas. Insurance. Co.,

(5th Cir. 2002) (citing De Aguilar v. Boeing

Co.,

(5th Cir. 1995).

“To determine whether jurisdiction is present for removal,

we consider the claims in the state court petition as they

existed at the time of removal.”

(citing Cavallini

v. State Farm Mut. Auto Insurance. Co.,

(5th

Cir. 1995)). “Any ambiguities are construed against removal

because the removal statute should be strictly construed in favor

of remand. “

(citing Acuna v. Brown & Root, Inc.,

(5th Cir. 2000)). However, the Supreme Court

has explained that:

where after removal a case is tried on the merits without objection and the federal court enters judgment, the issue in subsequent proceedings on appeal is not whether the case was properly removed, but whether the federal district court would have had original jurisdiction of the case had it

-3- been filled in that court.

Grubbs v. General Electric Credit Corp.,

(1972). In such a case, the appellate court should review the

pleadings as they existed at the time the district court entered

judgment. Kidd v. Southwest Airlines, Co.,

(5th Cir. 1990) (internal citations omitted).

In Caterpillar, Inc. v. Lewis, the Supreme Court held that

“a district court’s error in failing to remand a case improperly

removed is not fatal to the ensuing adjudication if federal

jurisdictional requirements are met at the time judgment is

entered.”

(1996). In that case, complete

diversity was lacking at the time Caterpillar removed the case to

federal court. One of the plaintiffs objected to the removal and

moved to have the case remanded to state court. The district

court denied the motion to remand. Prior to trial, the non-

diverse parties settled. Following a jury trial, the district

court entered judgment in favor of Caterpillar. The Court read

Grubbs to say that “an erroneous removal need not cause the

destruction of a final judgment, if the requirements of federal

subject-matter jurisdiction are met at the time the judgment is

entered.”

.

AETRS removed this case based on diversity jurisdiction.

Both parties concede that diversity exists, and that the

jurisdictional issue on appeal is whether the case meets the

-4- $75,000 requirement for jurisdiction. Schwartz argues that AETRS

did not prove that the amount in controversy met the $75,000

threshold. Although Grubbs and Caterpillar dealt with cases

where subject-matter jurisdiction was lacking at the time of

removal due to a lack of complete diversity, the same reasoning

should apply to cases where the $75,000 threshold is not met

before the case is removed.

A reviewing court should refer to the State court petition

to determine the amount in controversy. See St. Paul Reinsurance

Co. Limited. v. Greenberg,

(5th Cir. 1998).

However, Louisiana prohibits the specific pleading of damages.

LA. CODE CIV. PROC. Art 893(A)(1). This court held in Manguno,

that “where, as here, the petition does not include a specific

monetary demand, [the removing party] must establish by a

preponderance of the evidence that the amount in controversy

exceeds $75,000."

. “This requirement is met if

(1) it is apparent from the face of the petition that the claims

are likely to exceed $75,000, or, alternatively, (2) the

defendant sets forth ‘summary judgment type evidence’ of facts in

controversy that support a finding of the requisite amount.”

Viewing the pleadings as they existed at the time of

judgment, it is apparent that the claims were likely to exceed

$75,000. Schwartz sought damages for his past and future mental

suffering and medical expenses. Additionally, he alleged that

-5- AETRS caused him intentional infliction of emotional distress and

“substantial” financial losses. Thus, at the time the district

court rendered judgment, the court would have had original

jurisdiction had the suit been filed there. Therefore,

Schwartz’s jurisdictional argument is without merit, and we

AFFIRM the district court’s grant of summary judgment in favor of

AETRS.

AFFIRMED.

-6-