Castellanos v. Kroger Texas LP, No. 3:2022cv02277 - Document 15 (N.D. Tex. 2023)
Court Description: MEMORANDUM OPINION AND ORDER granting 11 Motion to Remand. This case is REMANDED to the 193rd Judicial District Court of Dallas County, Texas. (Ordered by Judge Karen Gren Scholer on 3/28/2023) (Attachments: # 1 Remand Letter) (axm)
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Castellanos v. Kroger Texas LP Doc. 15 Case 3:22-cv-02277-S Document 15 Filed 03/28/23 Page 1 of 9 PageID 148 United States District Court NORTHERN DISTRICT OF TEXAS DALLAS CRAIG DIVISION § § § § § CASTELLANOS V . KROGER TEXAS, L.P. MEMORANDUM OPINION C I V I L A C T I O N N O . 3 : 2 2 - C V- 2 2 7 7 - S AND ORDER This Memorandum Opinion and Ol'der addresses Plaintiff Craig Castellanos’s Motion for Remand (“Motion”) ECL No. 11]. The Court has reviewed and considered the Motion, Defendant Kroger Texas, L.p.’s Response to PlalntifEs Motion to Remand [ECF No. 12], Defendant’s Brief in Support of Defendant’s Response to PlaintifEs Motion to Remand (“Defendant’s Brief’) [ECF No. 13], and Defendant’s Appendix in Support of Its Response to Plaintiffs Motion to Remand (“Defendant’s Appendix”) ECF Nos. 13-1, 13-2]. For the following reasons, the Court GRANTS the Motion. BACKGROUND On June 7, 2022, Plaintiff led suit against Defendant in the 193rd Judicial Distidct Court of Dallas County, Texas, to recover for injuries sustained in aslip and fall. Pl.’s Original Pet. (“Pet.”) [ECF No. 1-2] 7. Plaintiff alleges that while walking througlr aKroger store in Mesquite, Texas, he “slipped in alarge pile of water on the oor” and “sufferfed] severe injuries.” Id. For his unspeci ed medical expenses, mental anguish, physical impaiiment, and physical dis gurement, among other things. Plaintiff sought “monetary relief over $250,000.00 but not more than $1,000,000.00.” Id. 3, 14. Despite stating that he sought at least $250,000, Plaintiff also pleaded that “the amount in controversy in this matter does not exceed $75,000.00.” Id.3 . Defendant removed the case and asserts that the Court has subject-matter jurisdiction because the parties are diverse and the amount in controversy exceeds $75,000. Notice of Removal fl fi fi fi Dockets.Justia.com Case 3:22-cv-02277-S Document 15 Filed 03/28/23 Page 2 of 9 PageID 149 ECF No. 1] 1. In its Notice of Removal, Defendant noted Plaintiffs contradictory pleadings regarding the amount in controversy and stated that Defendant atteiupted to ascertain the ti'ue amount in controversy by sending Plaintiff arequest to stipulate that Iris danrages do not exceed $75,000. Id. at 2-3. Plaintiff did not respond to that request. Id. at 3. Subsequently, Plaintiff led the instant Motion, arguing that the amount in controversy does not exceed $75,000. II. LEGAL S TA N D A R D Any civil action brought in astate court of which the district courts have original jurisdiction may be removed to the district court embracing the place where such action is pending. 28 U.S.C. §1441(a). “Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and stahrte.” Gunn V. Minton, 568 U.S. 251, 256 (2013) (intenral quotation marks and citation omitted). Afederal court must presume that acase lies outside its limited jurisdiction, and the party asserting jurisdiction bears the burden of establishing the contrary. Energy Mgmt. Servs., LLC V. City of Alexandria, 739 F.3d 255, 257 (Stir Cir. 2014) (citation omitted). Because reirroval raises signi cant federalism concerns, tire removal statute is strictly construed, and any doubt about the propriety of renroval jurisdiction is resolved in favor of renrand. Gasch V. Hartford Accident &Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007) (citations omitted). The two principal bases upon which adistrict court may exercise removal jurisdiction are: (1) the existence of afederal question, see 28 U.$.C. §1331; and (2) complete diversity of citizenship among the parties, see 28 U.$.C. §1332. When asuit is removed on the basis of diversity, the removing party must establish by a preponderance of the evidence that: (1) the amount in controversy exceeds $75,000; and (2) all persons on one side of the controversy are citizens of different states than all persons on tire other side of the controversy. Frye V. Anadarko Petroleum Corp., 953 F.3d 285, 293 (5th Cir. 2019) (citation omitted); see also New Orleans &Gulf Coast Ry. Co. V. Barrois, 533 F.3d 321, 327 (5th fi fi 2 Case 3:22-cv-02277-S Document 15 Filed 03/28/23 Page 3 of 9 PageID 150 cir. 2008) (“The party seeking to assert federal jurisdiction ...has the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists.”). “[D]iversity of citizenship must exist both at the time of ling in state court and at the time of removal to federal court. Coury V. Prot, 85 F.3d 244, 249 (5th Cir. 1996). III. A . ANALYSIS Diversity of Citiienship According to the Notice of Removal, the parties are diverse because Plaintiff is aTexas citizen and Defendant is an Ohio citizen. Notice of Removal 1-2. speci cally. Defendant asserts tlrat Plaintiff is a“citizen, resident, and domicile” of Texas, id. at 1, and that Defendant is an Ohio citizen because its sole general partner, KRGP Inc., and its sole limited partner, KRTP Inc., are Ohio corporations with their principal places of business in Ohio, id. at 2. See Coury, 85 F.3d at 249 (“A United States citizen who is domiciled in astate is acitizen of that state.”); Harvey V. Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (Stir Cir. 2008) (stating that the citizenship of a limited partnership is that of each of its partners and that the citizenship of acorpoi'ation is each state in which it is incorporated and in the state in which it has its principal place of business (citation omitted)). Therefore, tire diversity of citizenship requirenrent is met. B. Amount in Controversy In the Petition, which was the operative pleading at the time of removal. Plaintiff stated botlr that he sought over $250,000 and that the amount in controversy did not exceed $75,000. Pet. 3. After removal. Plaintiff led the Motion, in which he argues that the amount in coirtroversy does not exceed $75,000. Mot. 1. Accordiirg to Plaintiff, the Court should remand the case because ’Plaintiff has stated $75,000 as amaximunr amount of damages sought in his live pleading” and because Defendant has no evidence that the amount in controversy exceeds $75,000. Id. 13, 17. In response. Defendant asserts that the Court has subject-matter jurisdiction because: (!) Plaintiff fi fi fi 3 Case 3:22-cv-02277-S Document 15 Filed 03/28/23 Page 4 of 9 PageID 151 pleaded in his Petition that he seeks more tiran $250,0002) ) Plaintiff did not stipulate that he is seeking $75,000 or less; and (3) Defendant has produced suf cient evidence that tire amount in controversy exceeds $75,000. Def.’s Br. 8, 10. The amount in controversy is determined as of the time of removal. Gebbia V. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000) (citation omitted). "Moreover, once the district court’sjurisdiction is established, subsequent events that reduce the amount in controversy to less than $75,000 generally do not divest the court of diversity jurisdiction.” Id. (citations omitted). To determine whether the amount in controversy requirement is met, courts rst look to whether the plaintiff has alleged aspeci c anrount of damages in the petition. See De Aguilar V. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993). “Where the plaintiff has alleged asum certain that exceeds the requisite amount in controversy, that amount controls if made in good faith." Allen V. R&HOil &Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) (citation omitted). “[W]hen the plaintiffs complaint does not allege aspeci c amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds [$75,000].” Id. at 1335 (quoting De Aguilar, 11 F.3d at 58). The removing defendant can meet its burden in one of two ways. First, the defendant’s burden is met if it is facially apparent from the petition that the plaintiffs claims exceed $75,000. Id. $econd, if the facially apparent test is not met, the removing defendant may provide “summaryjudgment-type” evidence to prove that the claims exceed the jurisdictional threshold. Id. at 1336. Once the defendant establishes that the amount in controversy exceeds $75,000, removal is proper unless the plaintiff shows that it is “legally certain” tire plaintiffs recovery will not exceed the jurisdictional amount. See In re 1994 Exxon Chem. Fire, 558 F.3d 378,387 (5th Cir. 2009) (citation omitted). fi fi fi fi 4 Case 3:22-cv-02277-S Document 15 Filed 03/28/23 Page 5 of 9 PageID 152 Texas Rule of Civil Procedure 47 requires plaintiffs to categorize tlreir damages within one of ve prede ned ranges. At the time Plaintiff led his Petition, Rule 47 required tire selection of oire of the following categories of monetary relief: (!) only monetary relief of $250,000 or less, excluding interest, statutory or punitive damages and penalties, and attorney fees and costs; (2) monetary relief of $250,000 or less and ηοη-monetai'y relief; (3) monetary relief over $250,000 but not more than $1,000,000; (4) monetary relief over $1,000,000; or (5) only non-monetary relief.] Tex. R. Civ. P. 47(Ñ )(1)-(5). Though Plaiirtiff claims that the Petition states that he “seeks monetai-y relief of no more than $250,000.00,” Mot. 11 12, this assertion is contradicted by the Petition. The Petition con rms that Plaintiff chose the range set forth in Rule 47(c)(3)-“over $250,000.00 but not more than $1,000,000.00.” Pet. 3. Because Plaintiff alleged anon-speci c range of damages. Defendant must prove that the amouirt in controversy exceeds $75,000 by apreponderance of the evidence. See, e.g., Plunkett V. Companion Prop. &Cas. Ins. Co., No. l:15-CV-474, 2016 WT 2016) (“In situations where the petition alleges only arange of 8931300, at *3(E.D. Tex. Apr. damages and not aspeci c amount in controversy, removal is proper if the removing party establishes by apreponderance of the evidence that the amount in controversy exceeds $75,000.00.” (citations omitted)). To determine whether Defendant Iras met its burden, the Court rst examines the face of tire Petitioir to determine whether tire amount in controversy likely exceeds $75,000. Allen, 63 F.3d at 1335. In the Petitioir, Plaintiff claims generally that he “suffered severe injuries,” Pet. 11 7, and 'was seriously injured,” id. 11 14. Plaintiff broadly asserts damages for unidenti ed past and futtrre medical expenses, past and future pain, suffering, and mental anguish, past and rture plrysical fi fi fi fi fi fi fi fi fi 5 Case 3:22-cv-02277-S Document 15 Filed 03/28/23 Page 6 of 9 PageID 153 impairment, past and foture physical dis gurement, past lost wages, and futme loss of earning capacity. Id. The Petition provides no rrther information on the monetary value of Plaintiffs claims-for example, details regarding the alleged injuries, or tire type, extent, and cost of medical treatment incurred. Plaintiffs nondescript general allegations do not make it facially apparent that tire aiuount in controversy exceeds $75,000. See, e.g., Zielinski V. Allstate Fire &Cas. Ins. Co. No. 3:22-CV-71-L, 2022 WL 2118981, at *5 (N.D. Tex. June 13, 2022) (noting that the use of the word “severe” to describe aplaintiffs injuries “is arelative tenu that is amorphous when not accompanied by supporting factual allegations”). The Fifth Circuit has found that the facially apparent test was not met when aplaintiff pleaded similar non-speci c injuries. Compare Simon V. Wal-Mart Stores, Inc., 193F.3d 848, 85051 (5th Cir. 1999) ( nding complaint did not support diversity jurisdiction when plaintiff alleged. with little speci city, damages for aseverely injured shoulder, soft-tissue injuries throughout her body, bnrises, abrasions, unidenti ed medical expenses, and plaintiffs husband’s alleged loss of consortium), with Luckett V. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (af rming district court’s nding that claims exceeded $75,000 when plaintiff alleged damages for “property. travel expenses, an emergency ambulance trip, asix day stay in the hospital, pain and sirffering. humiliation, and her temporary inability to do housework after tire hospitaliá tion”) As it is irot apparent from the face of the Petition that the amount in controversy exceeds $75,000, the Court looks to whether Defendant presented any summary-judgment-type evidence or any additional information to demonstrate that Plaintiffs claims likely exceed $75,000. Defendant has provided evidence, but it is insuf cient to demonstrate that Plaintiffs claims likely exceed $75,000. fi fi fi fi fi fi fi fi fi 6 Case 3:22-cv-02277-S Document 15 Filed 03/28/23 Page 7 of 9 PageID 154 First, Defendant provides evidence that Plaintiff suffered bilateral meniscus tears in both knees and has undergone four intra-articular joint injections. Def.’s Br. 2. However, Defendant fails to include acritical fact: the cost of these procedures. The only evidence of costs the Court has before it comes from Plaintiffs billing af davits. According to the af davits. Plaintiff owes $7,275 for services provided by MRI Centers of Texas, ECF No. 1-2 at 34, and $975 for services provided by Waltham Consultants Ρ.Α., id. at 38. These costs are signi cantly below $75,000 and do not support federal jurisdiction. Defendant’s argument that “Plaintiff ...has provided no evidence that surgery will not subsequently be recommended” misses the mark. Def.’s Br. 10. As the party asserting federal jurisdiction. Defendant bears the burden to prove that the amount in controversy exceeds $75,000 by apreponderance of the evidence. Allen, 63 F.3d at 1335 (citation omitted). None of the medical records submitted by Defendant show that any doctor has recommended surgety. See, e.g., Def.’s App. 15, 27 (re ecting that tire treatment for Plaintiffs injuries thus far has been intra-articularjoint ityections). And Defendant has not provided the Court with the cost of any Irypothetical fuhrre surgety. See Robichaux V. Wal-Mart Stores, Inc., No. 161786, 2016 WT 1178670, at *3 (E.D. La. Mar. 28, 2016) (remanding case where defendant did 'not produce any evidence of the likelihood that... surgery will take place or what its cost would be”) Saucedo V. State Farm Mut. Auto. Ins. Co., No. DR-10-CV-OOl-AML-VRG, 2010 WE 11597175, at *3 (W.D. Tex. Mar. 9, 2010) (remanding case where cost of reconrmended surgety was “not clear from [plaintiffs pre-suit demand] letter or any other materials submitted with the Notice of Removal”), report and recommendation adopted by 2010 WE 11597170 (W.D. Tex. Apr. 21,2010). $econd. Defendant argues that Plaintiff reported that he was demoted to alower payingjob due to his injury. Def.’s Br. 2. Again, Defendant has provided no evidence of Plaintiffs current fi fi fl fi 7 Case 3:22-cv-02277-S Document 15 Filed 03/28/23 Page 8 of 9 PageID 155 or former salary or the size of the alleged pay cut. See Robichaux, 2016 I1178670, at *4 (“Although Plaintiff requests lost earnings/wages in her petition, no summary judgment-type evidence is provided supporting anumerical gure for any lost earnings, past, present, or future[.^”). Third, Defendant argues that Plaintif s failure to stipulate that his damages do not exceed $75,000 “raises the presumption that the amount in controversy in this case exceeds $75,000.00.' Def.’s Br. Ii 4. Plaintiffs refosal to stipulate to damages is a“factor ...considered by the Court but “alone it is not reason to deny remand." Johnson V. Dillard Dep’t Stores, Inc. 390, 394 (N.D. Tex. 1993). Here, the Court 36 F. $upp. nds that Plaintiffs failure to stipulate is not accompanied by other evidence or information suf cient to deny remand. As discussed above. Plaintiffs known costs to date are well below the jurisdictional threshold. And Plaintiffs Petition does not indicate that he seeks “statutory penalties, treble damages, or punitive damages that might amplify the amount in controversy above the $75,000 threshold.” Saucedo, 2010 WT 11597175 at *3. Finally, the Court notes that despite Plaintiffs failure to stipulate, he responded to aRequest for Admission asking him to admit that he was seeking damages in excess of $75,000 by stating. .Not at this time.” Def.’s App. 55 Considering the Petition and all of the evidence submitted by Defendant, the Court concludes that Defendant has not canied its burden to establish subject-matter jurisdiction by a preponderance of the evidence. Moreover, given binding precedent that “[t)he removal statute is... to be strictly construed” and that “any doubt about the propriety of removal must be resolved in favor of remand,” Gasch, 491 F.3d at 281-82 (citation omitted), the Court must remand for lack fi fi fi fi of subject-matter jurisdiction. Case 3:22-cv-02277-S Document 15 Filed 03/28/23 I V. Page 9 of 9 PageID 156 CONCLUSION For the reasons discussed above, the Court GRANTS Plaintiffs Motion for Remand ECF No. 11]. This case is REMANDED to the 193rd Judicial District Court of Dallas County, Texas. SO ORDERED. SIGNED March 28, 2023. 9 KAREN GREN UNITED S TAT E S SCHOLER DISTRICT JUDGE
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