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Cotton v. Kroger Texas L.P.

United States District Court, E.D. Texas, Sherman Division

December 17, 2019

CREOLA COTTON
v.
KROGER TEXAS L.P., D/B/A KROGER

          MEMORANDUM OPINION AND ORDER

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiff Creola Cotton's Motion to Remand (Dkt. #8). Having considered the relevant pleadings, the Court finds that Plaintiff's motion should be denied.

         BACKGROUND

         This is a slip-and-fall case. On January 1, 2019, Plaintiff was at Defendant Kroger Texas L.P.'s store (Dkt. #3 at p. 2). While there, Plaintiff slipped on a powdery substance and suffered injuries from her fall, allegedly caused by Defendant's negligence (Dkt. #3 at p. 2).

         On August 6, 2019, Plaintiff filed her Original Petition in Lamar County District Court (Dkt. #3). Defendant filed its Original Answer on September 26, 2019 (Dkt. #4). Additionally, Defendant filed its Notice of Removal on October 7, 2019 (Dkt. #1). As a result, on November 6, 2019, Plaintiff filed her Motion to Remand (Dkt. #8). Then, on November 20, 2019, Defendant filed its response (Dkt. #10).

         LEGAL STANDARD

         Defendant seeks to retain this case in federal court. A defendant may remove any civil action from state court to a district court of the United States which has original jurisdiction. 28 U.S.C. § 1441. District courts have original jurisdiction over all civil actions that are between citizens of different states and involve an amount in controversy in excess of $75, 000, exclusive of interest and costs. 28 U.S.C. § 1332. Defendant has the burden of proving the jurisdictional amount when opposing a plaintiff's motion to remand. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Any ambiguities are resolved against removal because the removal statute is strictly construed in favor of remand. See Bosky v. Kroger Tex., LP., 288 F.3d 208, 211 (5th Cir. 2002). “[Plaintiff's] claim remains presumptively correct unless [Defendant] can show by a preponderance of the evidence that the amount in controversy is greater than the jurisdictional amount.” De Aguilar, 47 F.3d at 1412. “The preponderance burden forces [Defendant] to do more than point to a state law that might allow [Plaintiff] to recover more than what is pled.” Id. “[Defendant] must produce evidence that establishes that the actual amount in controversy exceeds [$75, 000].” Id. “[I]f [Defendant] can show that the amount in controversy actually exceeds the jurisdictional amount, [Plaintiff] must be able to show that, as a matter of law, it is certain that [she] will not be able to recover more than the damages for which [she] has prayed in the state court complaint.” Id. An “absolute certainty in valuation of the right involved is not required, and a reasonable probability of an amount suffices if the amount can be ascertained pursuant to some realistic formula.” Dreyer v. Jalet, 349 F.Supp. 452, 465 (S.D. Tex. 1972).

         ANALYSIS

         As a threshold matter, neither party challenges the complete diversity of citizenship requirement. Rather, the sole jurisdictional issue is whether the amount in controversy-$75, 000, excluding costs and interest-is met. 28 U.S.C. § 1332.

         Here, Plaintiff's Original Petition[1] states that “Plaintiff seeks monetary relief over $75, 000, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney['s] fees” (Dkt. #3 at p. 1 (emphasis added)). Plaintiff contends that remand is warranted because the amount in controversy is not established (Dkt. #8 at p. 7). Notably, her claim for “monetary relief over $75, 000” is inclusive-and not exclusive-of costs and interest (Dkt. #8 at p. 7). Thus, Plaintiff claims that the amount in controversy, excluding costs and interest, does not exceed $75, 000 (Dkt. #8 at p. 7). Plaintiff also criticizes her own request for exemplary and punitive damages as being without basis (Dkt. #8 at p. 7). So, she argues, those damages should not be included in the amount in controversy[2] (Dkt. #8 at p. 7).

         Defendant counters that it is facially apparent from Plaintiff's petition that the amount in controversy likely exceeds $75, 000, so remand should be denied (Dkt. #10 at pp. 5-6). Defendant maintains that Plaintiff judicially admitted that the amount in controversy was met when she sought “monetary relief over $75, 000” (Dkt. #10 at p. 4). Additionally, Defendant analogizes this suit with several other slip-and-fall cases in which courts found that it was facially apparent that the damages exceeded $75, 000 (Dkt. #10 at pp. 5-6). Thus, Defendant asserts that, considering the damages sought by Plaintiff, it is facially apparent that the amount in controversy is met (Dkt. #10 at p. 7).

         When, as here, a complaint seeks unspecified damages, [3] a defendant may prove that the amount in controversy meets the jurisdictional requirement “(1) by demonstrating that it is ‘facially apparent' that the claims are likely above $75, 000, or (2) ‘by setting forth the facts in controversy-preferably in the removal petition, but sometimes by affidavit-that support a finding of the requisite amount.'” Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) (emphasis in original)); St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). “[T]he jurisdictional facts that support removal must be judged at the time of the removal, and any post-petition affidavits are allowable only if relevant to that period of time.” Allen, 63 F.3d at 1335. “Litigants who want to prevent removal must file a binding stipulation or affidavit [explicitly limiting the amount in controversy below the jurisdictional threshold] with their complaints; once a defendant has removed the case, . . . later filings [are] irrelevant.” De Aguilar, 47 F.3d at 1412 (quotations and alterations omitted).

         The Court first determines whether it is facially apparent from Plaintiff's petition that the amount in controversy likely exceeds $75, 000. Importantly, this decision “is left in part to the court's intuition and common sense.” HWJ, Inc. v. Burlington Ins. Co., 926 F.Supp. 593, 595 (E.D. Tex. 1996).

         To start, Plaintiff admitted that she sought relief of over $75, 000, including damages, costs, interest, and attorney's fees (Dkt. #3 at p. 1). Where the plaintiff seeks an amount that is a range of damages, that range may establish that it is facially apparent that the amount in controversy is met. See Arrigiaga v. Midland Funding LLC, No. 3:14-CV-04044-M, 2015 WL 567264, at *3 (N.D. Tex. Feb. 11, 2015). For instance, if a petition's entire range exceeds $75, 000, then, clearly, it is facially apparent that the amount in controversy is met. See Id. (“Because [Plaintiff] seeks monetary relief ‘over $100, 000 but not more than $200, 000,' Defendants have [established] that it is facially apparent from the . . . [p]etition that the ...


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