                  UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                           No. 99-30900
                         Summary Calendar

                          MICHAEL DAVIS,

                                                 Plaintiff-Appellee,

                                V.

                        JOE GRIDER; ET AL.

                                                         Defendants,

               AMERICAN INTERNATIONAL INSURANCE CO.,

                                                Defendant-Appellant.


          Appeal from the United States District Court
              For the Eastern District of Louisiana
                       Civil Action 98-2271
                            May 5, 2000
Before SMITH, BARKSDALE and PARKER, Circuit Judges.

PER CURIAM:1

     Defendant-Appellant American International Insurance Company

(“AIIC”), appeals a judgment in favor of     Plaintiff-Appellee,
Michael Davis (“Davis”), for injuries sustained as a result of an

automobile accident.   Although we affirm the district court's

determination with respect to mitigation of damages, because

Davis failed to present evidence with regard to coverage and

liability, we reverse and remand.


     1
        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that this opinion should not be published and is not precedent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.

                                -1-
               FACTUAL HISTORY AND PROCEEDINGS BELOW

     Davis was involved in an automobile accident on August 9,

1996, with an automobile owned by Avis Rental Car Co.   Davis

alleged that he was traveling as a guest passenger when a vehicle

driven by Joe Grider (“Grider”) struck his automobile from

behind.   Davis also alleged that the vehicle driven by Grider was

insured under an automobile liability policy issued by AIIC.    As

a result of this incident, Davis sustained personal injuries.

Davis sued Grider2 and AIIC in Louisiana state court on August 7,

1997, for damages arising out of the accident.   AIIC removed the

case to federal court based on diversity.

     A pretrial order was drafted and filed with the clerk of

court on June 28, 1999.   In that pre-trial order, the following

pertinent facts were listed as contested by Davis: (1) whether

Joe Grider rear-ended the vehicle in which Davis was a passenger

and (2) whether AIIC provided automobile insurance coverage on

the vehicle operated by Grider.3

     Approximately ten days after the filing of this pre-trial

order, a pre-trial conference was held in which all counsel of

record held discussions regarding the necessity of producing

witnesses and exhibits at trial.   Davis alleges that at this

conference counsel for AIIC indicated that liability was “not a

     2
        Grider was originally named as a defendant but was
subsequently dismissed without prejudice on January 20, 1999,
because Davis failed to timely effect service upon him.
     3
        In addition, under the heading of “Uncontested Material
Facts,” the pre-trial order stated that the parties were “unaware
of any uncontested material facts.”

                                -2-
serious issue” and that it would be unnecessary for Davis to

produce witnesses to prove liability on the part of Joe Grider.4

In addition, Davis asserts that counsel for AIIC admitted that

coverage for the accident existed and, consequently, Davis need

not produce a representative of AIIC to testify nor introduce a

policy into evidence.   AIIC argues that no such stipulations took

place.

     AIIC argued in the alternative that Davis failed to mitigate

the damages he received as a result of the accident.

Specifically, AIIC asserts that Davis worsened his injuries

because he failed to complete his physical therapy regimen.    The

district court found that Davis did not fail to mitigate his

damages.

     After a bench trial on the merits, the district court

entered judgment in favor of Davis and AIIC filed this timely

appeal.

                        STANDARD OF REVIEW

     The district court's decision to modify a pre-trial order

will not be disturbed on appeal absent an abuse of discretion.

See Southwestern Engineering Co v. Cajun Elec. Power Coop., Inc.,

915 F.2d 972, 979 (5th Cir. 1990).    Whether the district court in

this case modified its pre-trial order depends upon whether the

alleged stipulations regarding insurance coverage and liability

took place.   The district court's factual determination as to

     4
        Those witnesses include the owners of the vehicle in
which plaintiff was a passenger and the investigating officer at
the scene of the accident.

                                -3-
whether the stipulations occurred, thereby modifying the pretrial

order, is reviewed for clear error.    See Accura Systems, Inc. v.

Watkins Motor Lines, Inc., 98 F.3d 874, 876 (5th Cir. 1996).     The

district court's factual determination whether Davis failed to

mitigate his damages is reviewed for clear error.     See id.

                            DISCUSSION

I.   Subject-Matter Jurisdiction.

     Davis avers for the first time in his response brief that

the district court lacked diversity jurisdiction solely because

the amount in controversy did not exceed $75,000.5    See 28 U.S.C.

§ 1332(a) (1994).   He argues that AIIC merely alleged conclusory

statements in its removal papers regarding the amount in

controversy.   AIIC argues that it is “facially apparent” from

Davis's petition that the claims are above the requisite amount

in controversy.

     This circuit utilizes a clear analytical structure to

evaluate subject matter jurisdiction for cases filed in Louisiana

state courts that assert no damage amount and are removed to

federal court based on diversity.     See Simon, 193 F.3d at 850-52;

Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir.


     5
        Notwithstanding the fact that Davis brought up this
challenge to the district court's subject matter jurisdiction for
the first time on appeal, “a party may neither consent to nor
waive federal subject matter jurisdiction. Federal courts may
examine the basis for jurisdiction sua sponte, even on appeal.”
Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999)
(citations omitted); see also id. at 851 (“The [plaintiff's]
failure to object to removal or jurisdiction . . . does not
relieve [the defendant] of its burden to support federal
jurisdiction at the time of removal.”).

                                -4-
1999).

      In such a situation, the removing defendant must prove
      by a preponderance of the evidence that the amount in
      controversy exceeds $75,000. The defendant may make
      this showing in either of two ways: (1) by
      demonstrating that it is “facially apparent” that the
      claims are likely above $75,000, or (2) “by setting
      forth facts in controversy--preferably in the removal
      petition, but sometimes by affidavit--that support a
      finding of the requisite amount.”

Luckett, 171 F.3d at 298 (citations omitted).

      In the case sub judice, AIIC filed no affidavits with its

notice of removal nor set forth any facts in controversy in that

notice.    It merely alleged in a conclusory manner that the amount

in controversy exceeded the requisite jurisdictional amount.

Thus, the district court's jurisdiction was proper if the amount

in controversy exceeded $75,000.

      Reading the face of Davis's petition, we find that the

district court did not err in finding that his claims exceeded

$75,000.   Based on a tort theory of recovery, Davis prayed for

the following damages: past and future medical expenses, past

andfuture lost wages, past and future pain and suffering and past

and future disability.   The district court had subject matter

jurisdiction to decide the merits of Davis's claims.

II.   Stipulations as to Insurance and Liability.

      The resolution of the issues of coverage and liability

centers on what was discussed and agreed to at a July 8, 1999

pre-trial conference between AIIC's counsel and Davis's counsel.

Davis argues that stipulations made at this conference (occurring

after the filing of the pre-trial order) modified the pre-trial


                                 -5-
order which contested the facts of coverage and liability as to

Grider.

     The pre-trial order was filed on June 25, 1999 and was

entered into on July 12, 1999.     Davis's argument is that the

events of the July 8th pre-trial conference modified and

superceded the pre-trial order which was filed approximately ten

days prior.

     A.      Provision of Insurance by AIIC.

     The district court made a specific finding that counsel for

AIIC stipulated to insurance coverage of the vehicle that struck

Davis.     The basis of this finding--that coverage was agreed to in

the pre-trial conference--contrasts (or otherwise modifies) the

written pre-trial order which listed coverage as a contested

fact.     AIIC asserts that no such stipulation was made during the

July 8, 1999, pre-trial conference.     Davis did not introduce

evidence at trial in support of finding coverage.     We find

nothing in the record to support this finding.

     “A trial court has 'broad discretion in determining whether

or not a pretrial order should be modified or amended.'”        El Paso

Refinery v. Scurlock Perman Corp., 171 F.3d 249, 255 (5th Cir.

1999) (quoting Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358,

1369 (5th Cir. 1983)); see also FED R. CIV. P. 16(e).   The trial

court found that the parties agreed that coverage was admitted;

however, “nothing in the transcript or in any order or writing

whatever--including any letter to or from the court or any of the

parties or counsel or even any informal notes of the court,


                                  -6-
counsel, or anyone else--reflects such or any similar agreement.”

Conkling v. Turner, 138 F.3d 577, 588 (5th Cir. 1998).      The

district court abused its discretion6 in modifying the written

pre-trial order and finding that coverage had been stipulated

without some support in the record that the parties so agreed.

     B.   Liability of Grider.

     Davis asserts that, at the July 8, 1999 pre-trial

conference, in direct response to the Judge's question regarding

the necessity of producing witnesses, counsel for AIIC stated

that it would not be necessary for Davis to produce the owner and

the operator of the vehicle or the investigating officer because

liability was not “a serious issue.”   Relying upon these

assurances, Davis did not produce any such witnesses nor an AIIC

insurance policy.

     This argument that the district court specifically found

that liability was stipulated is based on the following passage

from the trial transcript:

          Thank you. Okay. We'll start right there and say
     that at the pre-trial conference that insurance
     coverage was admitted and although liability was not
     admitted, it was represented but it was not a serious
     issue, and therefore, I will begin by finding that the
     Plaintiff was a passenger in an automobile that was
     rear-ended by the Defendant and, therefore, the vehicle
     which was operated by Joe Grider and insured by
     American International Insurance Company was the sole
     cause of the accident.

     Although a finding as to coverage was made by the district


     6
        The district court abused its discretion by relying on
its clearly erroneous factual finding that the stipulation
asserted by Davis actually occurred.

                                 -7-
court in this passage, we find that the district court did not

specifically make a finding regarding liability.    The district

court merely found that liability was “represented [as] . . . not

a serious issue.”   Because the district court did not make a

finding that liability was stipulated and Davis did not present

any proof as to liability, the judgment for the plaintiff was in

error.

III. Mitigation of Damages.

     AIIC argues that the district court's factual determination

that Davis did not fail to mitigate his damages was clearly

erroneous.   Under Louisiana law, AIIC has the burden of showing

that Davis failed to mitigate his damages.    See Gates v. Shell

Oil, 812 F.2d 1509, 1515 (5th Cir. 1987) (citing Perrette v. City

of Slidell, 465 So.2d 63, 65 (La. Ct. App. 1985)).    AIIC must

show that Davis's failure to follow his prescribed treatment more

probably than not worsened his condition.    See Porter v. State,

701 So.2d 1069, 1072 (La. Ct. App. 1997).

     AIIC failed to meet its burden with respect to this issue.

At most, the evidence presented at trial suggests that it was

“possible” that Davis's failure to complete his physical therapy

regimen worsened his condition.    The trial court's ruling that

Davis did not mitigate his damages was not clearly erroneous.

                              CONCLUSION

     The district court's finding that AIIC insured the vehicle

which struck appellee is REVERSED and REMANDED.    Because the

district court failed to make a finding as to liability on the


                                  -8-
part of Joe Grider and because Davis failed to provide proof of

such liability, the district court's award of damages to Davis is

REVERSED and REMANDED.   The district court's finding that Davis

did not fail to mitigate his damages is AFFIRMED.



AFFIRMED in part, REVERSED in part and REMANDED.




                                -9-
