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McCauley v. The Kroger Co.

United States District Court, N.D. Texas, Dallas Division

January 14, 2020

PAULA MCCAULEY, Plaintiff,
v.
THE KROGER CO., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          SIDNEY A. FITZWATER SENIOR JUDGE

         In this removed action arising from a slip and fall at a grocery store, plaintiff Paula McCauley (“McCauley”) moves to remand the case to state court, contending that defendants The Kroger Co. d/b/a Kroger Store and Kroger Texas, L.P. d/b/a Kroger Store (collectively, “Kroger”) have failed to show that the amount in controversy exceeds $75, 000, exclusive of interest and costs, and that Kroger's removal is untimely. For the reasons that follow, the court denies the motion.

         I

         McCauley filed suit against Kroger in state court on April 12, 2019 to recover for injuries she alleges she sustained from slipping and falling on leafy greens, debris, and water in the store. Kroger sent a letter to McCauley's counsel on September 26, 2019, requesting that McCauley stipulate by October 15, 2019 that her damages did not exceed $75, 000. On October 15, 2019 McCauley's counsel requested additional time to respond, which Kroger's counsel granted. But McCauley did not respond. Instead, on October 31, 2019 her counsel sent a written settlement demand in the amount of $75, 000.

         Eight days later, on November 8, 2019, Kroger removed the case to this court on the basis of diversity of citizenship. McCauley now moves to remand on two grounds: first, that defendants cannot meet the requirement of 28 U.S.C. § 1332(a)(1) that the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs; and, second, that removal was untimely.

         II

         As the removing party, Kroger “has the burden of overcoming an initial presumption against jurisdiction and establishing that removal is proper.” Carnes v. Data Return, LLC, 2005 WL 265167, at *1 (N.D. Tex. Feb. 1, 2005) (Fitzwater, J.) (citing Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001)). “In general, defendants may remove a civil action if a federal court would have had original jurisdiction.” De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995) (citing 28 U.S.C. § 1441(a)). The district courts have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and the parties are completely diverse citizens. See 28 U.S.C. § 1332(a); see also Uglunts v. Americare Servs., Inc., 2013 WL 3809681, at *1 (N.D. Tex. July 23, 2013) (Fitzwater, C.J.). But any “doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.” Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).

         III

         The court considers first whether Kroger has met its burden of establishing that the amount in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs.

         A

         To determine the amount in controversy, the court looks initially to McCauley's state court petition. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998)). If the plaintiff's state court petition demands monetary relief of a stated sum, that sum, if asserted in good faith, is deemed to be the amount in controversy. Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 84 (2014). But when the plaintiff's state court petition does not demand relief of a stated sum, the defendants' notice of removal must make “a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Id. at 89. No. evidence is required unless and until the plaintiff contests, or the court questions, the allegation. See id.

         If the plaintiff contests the allegation, then the defendant must prove by a preponderance of the evidence that the amount in controversy requirement has been satisfied. Id. at 88 (explaining that, if plaintiff contests defendant's allegation, then “both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied”); see also Allee Corp. v. Reynolds & Reynolds Co., 2015 WL 1914663, at *3 (N.D. Tex. Apr. 28, 2015) (Fitzwater, J.). The defendants' burden “is met if (1) it is apparent from the face of the petition that the claims are likely to exceed $75, 000, or, alternatively, (2) the defendant[s] set[] forth summary judgment type evidence of facts in controversy that support a finding of the requisite amount.” Manguno, 276 F.3d at 723 (internal quotation marks omitted). If the defendants can produce evidence sufficient to show by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional threshold, the plaintiff can defeat diversity jurisdiction only by showing to a legal certainty that the amount in controversy does not exceed the sum or value of $75, 000, exclusive of interest and costs. See De Aguilar, 47 F.3d at 1412.

         B

         McCauley contends that it is not facially apparent from her state court petition that her claims exceed the jurisdictional threshold because she did not plead a specific amount of damages in state court, and that Kroger has failed to provide any other evidence that the amount in controversy exceeds $75, 000. McCauley maintains that her medical bills total only $21, 281.51, and that although she did not respond in writing to Kroger's “attempt[] to engineer diversity jurisdiction by requiring a stipulation by a [certain] date, ” she “did make a written settlement demand at the $75, 000.00 limit, signaling to the Defendant that the case was worth no more than $75, 000.00.” P. Mot. 4. McCauley also posits that she “did not refuse to stipulate to $75, 000.00; rather [she] had simply not yet returned a signed copy of the letter before ...


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