XAVIER RODRIGUEZ, District Judge.
On this day came on to be considered Plaintiff's motions to remand (docket nos. 4 and 13).
Plaintiff's petition, originally filed in state court, asserts a claim for premises liability. She alleges that she "slipped on a large liquid puddle, falling to the ground and sustaining injuries." Petn. ¶8. There is no allegation concerning the nature or severity of the injuries. Plaintiff seeks various damages, including past and future medical expenses, past and future pain and suffering, past and future physical impairment, past and future loss of earnings, past and future mental anguish, and future medical monitoring and prevention. Petn. ¶ 13. Pursuant to Texas Rule of Civil Procedure 169 governing "expedited actions, " Plaintiff further asserts, "Plaintiff seeks only monetary relief of $100, 000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and/or attorney fees." Petn. ¶ 5. See TEX. R. CIV. P. 169 ("The expedited actions process in this rule applies to a suit in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $100, 000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees."). The petition further states that discovery will be conducted pursuant to Texas Rule of Civil Procedure 190.2, Petn. ¶ 1, which applies to "expedited actions and divorces involving $50, 000 or less." TEX. R. CIV. P. 190.2.
In its October 21, 2013, Notice of Removal based on diversity jurisdiction, Defendant summarily stated that "[t]he amount in controversy exceeds the sum of seventy-five thousand dollars ($75, 000.00), exclusive of interest and costs."
On October 28, the Court issued a Show Cause Order directing Wal-Mart to submit further evidence, if any, and briefing concerning whether the amount in controversy exceeded $75, 000 at the time of removal.
On October 28, Defendant's counsel sent correspondence to Plaintiff's counsel that the correct entity for this lawsuit was Wal-Mart Stores Texas L.L.C. On October 29, Plaintiff filed her motion to remand arguing that in state court Wal-Mart Stores, Inc. asserted that it was not a properly named party. Given this contention, Plaintiff argues that "Wal-Mart Stores, Inc. cannot use the alleged citizenship of the improperly named party to establish that there is complete diversity between the parties." Plaintiff further argues that Defendant has failed to establish complete diversity between Wal-Mart Stores Texas L.L.C. and Plaintiff. Alternatively, Plaintiff argues that Defendant failed to establish that the amount in controversy threshold had been met.
Diversity of Parties
At the time this case was removed the only party Plaintiff sued was Wal-Mart Stores, Inc. In its removal Defendant pled that Wal-Mart Stores, Inc. is a corporation incorporated under the laws of the State of Delaware, with its principal place of business in Arkansas. It further pled that Plaintiff is a Texas citizen. The mere fact that Defendant notified Plaintiff that it had sued the wrong entity did not alter the procedural posture of this case. Since Plaintiff had not yet filed suit against Wal-Mart Stores Texas L.L.C., Defendant was under no obligation to address that unnamed party. See Lincoln Property Co. v. Roche, 546 U.S. 81, 84 (2005)("Defendants may remove an action on the basis of diversity of citizenship if there is complete diversity between all named plaintiffs and all named defendants, and no defendant is a citizen of the forum State. It is not incumbent on the named defendants to negate the existence of a potential defendant whose presence in the action would destroy diversity."). Plaintiff's motion to remand on this basis is denied.
Amount in Controversy
The amount in controversy issue is a more difficult issue. As noted in the Court's Show Cause Order, Plaintiff alleges that she "slipped on a large liquid puddle, falling to the ground and sustaining injuries." Petn. ¶8. There is no allegation concerning the nature or severity of the injuries. Plaintiff seeks various damages, including past and future medical expenses, past and future pain and suffering, past and future physical impairment, past and future loss of earnings, past and future mental anguish, and future medical monitoring and prevention.
On the date of the alleged slip and fall Plaintiff told store officials that she injured her left knee, right ankle, right hip and lower back. In paragraph 5 of her state court petition Plaintiff sought "monetary relief of $100, 000 or less." In response to the Show Cause Order Defendant's counsel offered to agree to a remand of this case if Plaintiff would stipulate that her damages were less than $75, 000. Plaintiff refuses to enter into such a stipulation.
Defendant argues that based upon the statement of injuries Plaintiff relayed at the time of the incident, the allegations made in the state court petition, and the refusal to stipulate to damages less than $75, 000, it has established the amount in controversy requirement. Defendant relies upon Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000). In Gebbia, the plaintiff alleged in her original state court petition that she sustained injuries to her right wrist, left knee and patella, and upper and lower back in a slip and fall. Gebbia alleged damages for medical expenses, physical pain and suffering, mental anguish and suffering, loss of enjoyment of life, loss of wages and earning capacity, and permanent disability and disfigurement. Like in this instant case, Gebbia argued that due to continuing medical treatment of her injuries, she was unable to confirm the amount of her damages. The Fifth Circuit held that ...