                    IN THE UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT

                                       No. 02-50890
                                     Summary Calendar

REGINA WHITE,
                                                                          Plaintiff-Appellant,

versus

FCI USA, INC.
                                                                        Defendant-Appellee.


                       Appeal from the United States District Court
                            for the Western District of Texas

                     ________________________________________
                                   January 3, 2003

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant asserts that the district court erred in finding the $75,000 amount-in-

controversy requirement satisfied and granting summary judgment in favor of the

Defendant-Appellee. This Court affirms.

                             I. FACTS AND PROCEEDINGS

         Plaintiff-Appellant Regina White (“White”) brought suit against Defendant-

Appellee FCI USA, Inc. (“FCI”), White’s former employer, for wrongful termination on

March 29, 2001, in the 246th Judicial District Court of El Paso Country, Texas (“state

court”). White based her suit upon Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733,

735 (Tex. 1985), which permits suits for wrongful termination where the employee was

terminated for refusal to perform illegal acts.




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       In her Original Petition, White prayed that the judgment include punitive

damages, attorney’s fees, pre-judgment interest, court costs, and compensatory damages

for lost pay, lost fringe benefits, front pay, loss of wage earning capacity, harm to

White’s credit and credit reputation, and mental anguish and emotional distress (both past

and future). The Original Petition did not specify how much monetary relief White was

seeking.

       FCI removed on May 25, 2001, asserting removal jurisdiction on the basis of

diversity. In its Notice of Removal, FCI asserted that the amount in controversy

exceeded $75,000.

       White filed a Motion to Remand, but the U.S. District Court for the Western

District of Texas (“district court”) denied her motion. The district court concluded that

FCI had set forth facts sufficient to show by a preponderance of the evidence that the

$75,000 amount-in-controversy requirement was met.

                               II. STANDARD OF REVIEW

       This Court reviews a district court’s determination of the amount in controversy

de novo. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995).

       “A grant of summary judgment is reviewed de novo . . . Summary judgment is

appropriate when there ‘is no genuine issue as to any material fact and the moving party

is entitled to a judgment as a matter of law.’” Quorum Health Res., L.L.C. v. Maverick

County Hosp. Dist., 308 F.3d 451, 458 (5th Cir. 2002) (citations omitted) (quoting

Conoco, Inc. v. Medic Systems, Inc., 259 F.3d 369, 371 (5th Cir. 2001)). This Court

“must view facts and inferences in the light most favorable to the party opposing the




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motion. A factual dispute precludes a grant of summary judgment if the evidence would

permit a reasonable jury to return a verdict for the nonmoving party.” Id.

                                      III. ANALYSIS

       This appeal presents this Court with two issues: first, whether the amount-in-

controversy requirement was met, and second, whether the district court was correct in

granting summary judgment for the Defendant-Appellee.

                                             A.

       Diversity jurisdiction under 28 U.S.C. § 1332 only exists where the parties are

citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C.A. §

1332 (West 1993 & Supp. 2001). White correctly notes that the amount in controversy

should be determined at the time of filing. St. Paul Reinsurance Co. Ltd. v. Greenberg,

134 F.3d 1250, 1253 (5th Cir. 1998). “Normally, this burden is satisfied if the plaintiff

claims a sum greater than the jurisdictional requirement.” Phillips v. Kansas City S. Ry.

Co., 1995 U.S. Dist. LEXIS 12983, at *2 (1995) (citing Gaus v. Miles, Inc., 980 F.2d

564, 566 (9th Cir. 1992)). However, White never specified the total amount of monetary

relief she was seeking.

       Where the plaintiff fails to allege a specific amount of damages, this Court has

prescribed a procedure for determining the amount in controversy:

       In removal practice, when a complaint does not allege a specific amount of
       damages, the party invoking federal jurisdiction must prove by a preponderance
       of the evidence that the amount in controversy exceeds the jurisdictional amount.
       The district court must first examine the complaint to determine whether it is
       "facially apparent" that the claims exceed the jurisdictional amount. If it is not
       thus apparent, the court may rely on "summary judgment-type" evidence to
       ascertain the amount in controversy.




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St. Paul Reinsurance, 134 F.3d at 1253 (citations omitted); De Aguilar v. Boeing Co., 11

F.3d 55, 57-58 (5th Cir. 1993) [hereinafter De Aguilar I].

       The district court examined the Original Petition on its face and evaluated the

evidence presented by FCI. The district court concluded it was “more probable than not”

that the lengthy list of compensatory and punitive damages sought by White, when

combined with attorney’s fees, would exceed $75,000. Allen, 63 F.3d at 1336

(concluding that a punitive damages claim was “more likely than not” to exceed the

jurisdictional amount). In fact, the district court concluded that the compensatory

damages or punitive damages alone would “in all likelihood” exceed $75,000. Id. The

district court also noted White’s admission that her damages “[did] not yet equal”

$75,000 but “it [was] possible that [they] will exceed $75,000.00 at the time of trial.” On

the basis of this evidence and analysis, the district court found that the amount-in-

controversy requirement was met.

       White argues that the evidence presented by FCI was insufficient to meet the

preponderance of the evidence test. This Court articulated the standard for insufficient

evidence in Asociacion Nacional De Pescadores A Pequena Escala O Artesanales De

Colombia (ANPAC) v. Dow Quimica De Columbia S.A., 988 F.2d 559 (5th Cir. 1993)

[hereinafter Dow Quimica]:

       At least where the following circumstances are present, [the removing party's
       burden to establish jurisdiction] has not been met: (1) the complaint did not
       specify an amount of damages, and it was not otherwise facially apparent that the
       damages sought or incurred were likely above $50,000; (2) the defendants offered
       only a conclusory statement in their notice of removal that was not based on
       direct knowledge about the claims; and (3) the plaintiffs timely contested removal
       with a sworn, unrebutted affidavit indicating that the requisite amount in
       controversy was not present.

De Aguilar I, 11 F.3d at 57 (quoting Dow Quimica, 988 F.2d at 566).



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       First, White’s Original Petition did not specify an amount of damages. Id. Second,

the district court concluded that it was facially apparent that the amount in controversy

exceeded $75,000. Id. Third, FCI has offered more than a conclusory statement in

support of their notice of removal. De Aguilar I, 11 F.3d at 57-58 (contrasting the

substantive evidence, including “testimonial evidence and published precedent,” offered

by the removing party in that case with the “mere scintilla of evidence” presented by the

removing party in Dow Quimica); Allen, 63 F.3d at 1335 (citing Gaus, 980 F.2d at 566)

(“removal . . . cannot be based simply upon conclusory allegations”). In its

interrogatories, FCI asked White to state the full amount of money damages she was

seeking. White identified three categories of money damages she was seeking: lost

income, mental anguish and emotional distress, and punitive damages. For the first

category, White reported that she was incurring an economic loss at the rate of $100,000

per year and had already suffered a loss of approximately $13,000. White asserted that

the latter two categories “cannot be precisely quantified” and that she would rely on the

jury to “assess what is fair.” Towards this end, White identified six doctors who would

testify about her mental anguish and emotional distress.

       In its Requests for Admission, FCI asked White to admit or deny that she was

seeking damages of $75,000 or more. White admitted that her damages “[did] not yet

equal” $75,000 but “it [was] possible that [they] will exceed $75,000.00 at the time of

trial.” Through this language, White implied that the amount in controversy was not

limited to the damages she suffered before her filing. Instead, White indicated that she

was seeking continuing and future damages as well.




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       Fourth, White failed to timely contest the removal with a sworn, unrebutted

affidavit indicating that the requisite amount in controversy was not present. De Aguilar

I, 11 F.3d at 57.

       This Court has held that “the jurisdictional facts that support removal must be

judged at the time of the removal.” Allen, 63 F.3d at 1335. At the time of removal, it was

apparent from the face of the Original Petition and the evidence presented by FCI that the

amount in controversy exceeded $75,000. The preponderance of the evidence thus

indicated that the amount-in-controversy requirement was met. This Court has held that

“once a defendant is able to show that the amount in controversy exceeds the

jurisdictional amount, removal is proper, provided plaintiff has not shown that it is

legally certain that his recovery will not exceed the amount stated.” De Aguilar v. Boeing

Co., 47 F.3d 1404, 1412 (5th Cir. 1995). White failed to specify an amount of damages

less than $75,000 or to present any substantive evidence in support of her motion to

remand. White thus failed to show that it was legally certain that her recovery will not

exceed $75,000.

       Based on the preponderance of evidence, this Court affirms the district court’s

conclusion that the amount-in-controversy requirement was met.

                                             B.

       Texas law permits indefinite employment to be terminated at-will and without

cause unless the termination results from the employee’s refusal to commit an unlawful

act. East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 75, 10 S.W. 99, 102 (1888) (holding that

an indefinite term of service may be terminated by either party without cause); Sabine

Pilot, 687 S.W.2d at 735. In order to establish a prima facie case of wrongful termination




                                              6
under Sabine Pilot, the plaintiff must prove that: (1) she was required to commit an

illegal act which carries criminal penalties; (2) she refused to engage in the illegality; (3)

she was discharged; (4) the sole reason for her discharge was her refusal to commit an

unlawful act. Sabine Pilot, 687 S.W.2d at 735; Burt v. City of Burkburnett, 800 S.W.2d

625, 626-27 (Tex. App.-Fort Worth 1990, writ denied).

        First, FCI submitted evidence, in the form of numerous falsified NAFTA

Certificates of Origin bearing White’s signature, indicating that White committed

unlawful acts. 18 U.S.C.A. § 1001(a) (West 2000) (specifying that the making of a false

statement to any branch of the U.S. Government is a felony punishable by fine or

imprisonment). However, White did not submit any evidence indicating that she was

required by FCI to commit the unlawful acts. Burt, 800 S.W.2d at 626-27 (holding that

the plaintiff must prove that the employer required, not just requested, the employee to

commit unlawful acts). White admits in her own deposition that the catalyst for her

unlawful acts was her subjective interpretation of her supervisor’s remarks rather than

any direction to commit the unlawful acts.

        Second, FCI submitted evidence, in the form of numerous falsified NAFTA

Certificates of Origin bearing White’s signature, that White did not refuse to commit the

unlawful acts. Third, it is undisputed that White was discharged.

        Fourth, White failed to demonstrate either a refusal to commit unlawful acts or

that such a refusal was the sole reason for her discharge. The evidence of an ongoing

reduction in force and financial difficulties at FCI since July 2000 stands unrefuted. FCI

contends that White was discharged as part of the reduction in force, and White does not

provide any substantive evidence to the contrary. Eason v. Thaler, 73 F.3d 1322, 1325




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(5th Cir. 1996) (holding that “mere conclusory allegations are not competent summary

judgment evidence, and . . . are insufficient, therefore, to defeat a motion for summary

judgment”).

       Based on White’s failure to meet the requirements for a prima facie case of

wrongful termination under Sabine Pilot, this Court affirms the district court’s grant of

summary judgment in favor of FCI.




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