United States District Court, E.D. Texas, Sherman Division
MEMORANDUM OPINION AND ORDER
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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).
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.
Plaintiff's Original Petition 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 (Dkt. #8 at p. 7).
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).
as here, a complaint seeks unspecified damages,
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).
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).
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 ...