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Crane v. Petco Animal Supplies Stores, Inc.

United States District Court, E.D. Louisiana

June 28, 2017


         SECTION "F"



         Before the Court are three motions: (1) Plaintiff's motion to amend the complaint, (2) Plaintiff's motion to remand, and (3) Defendants' motion to dismiss. For the following reasons, the motion to remand is DENIED with prejudice, the motion to amend the complaint is GRANTED, and the motion to dismiss is DENIED without prejudice.


         This lawsuit arises out of an alleged slip and fall at a Petco Animal Supply Store in New Orleans.

         Cecily Crane alleges that on September 18, 2015 "she slipped and fell on water on the floor coming from a leaking Fresh Smart Cooler." As a result, Crane alleges she has suffered mental and physical pain and suffering, including neck pain, thoracic pain, low back pain, left hip pain, headaches, physical and mental anguish, past, present and future medical expenses, and loss of past, present, and future earning capacity.

         Crane alleges that the accident was a result of the negligence, reckless disregard, and wanton conduct of Petco in its failure to: maintain order and cleanliness, act with the required degree of care commensurate with the existing conditions, and post warnings of caution of water on the floor or hazardous condition. She further alleges that “[o]ne of the corresponding or proximate causes of this accident [is] by FreshPet, Inc.” due to its “failure to maintain it[s] vendor cooler so that leaking water would not flood the floor where customers walk[, ] causing a hazardous condition.”

         Crane filed her petition against Petco and its alleged insurers in state court. In state court, the plaintiff was granted a specific time period to seek leave to amend her petition; the plaintiff failed to do so within the time allotted. The defendants then removed the case to this Court upon belief, after the plaintiff testified at her deposition, that the amount in controversy exceeded $75, 000. In response, the plaintiff filed an amended petition in state court, without the court's leave, which included a stipulation that her damages were less than $75, 000.

         After removing the case to this Court, the defendants filed a Rule 12(b)(6) motion to dismiss. The plaintiff then filed a motion to remand and a motion to amend the complaint. The Court first considers the motion to remand.

         I. Motion to Remand


         Although the plaintiff challenges removal in this case, the removing defendant carries the burden of showing the propriety of this Court's removal jurisdiction. See Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 868 (1993); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). “Because removal raises significant federalism concerns, the removal statute is strictly construed.” Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008). Further, “any doubt as to the propriety of removal should be resolved in favor of remand.” Id.

         A defendant may generally remove a civil action filed in state court if the federal court has original jurisdiction over the case - that is, if the plaintiff could have brought the action in federal court from the outset. See 28 U.S.C. § 1441(a). To exercise diversity jurisdiction, complete diversity must exist between the plaintiff and all of the properly joined defendants, and the amount in controversy must exceed $75, 000. See 28 U.S.C. § 1332(a)(1). The removal dispute here centers on whether the amount in controversy requirement is met.

         To determine whether it has jurisdiction, the Court must consider the allegations in the state court petition as they existed at the time of removal. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). Louisiana law requires that a plaintiff include “no specific amount of damages” in her prayer for relief. La. Code Civ. Proc. Art. 893.

         When the plaintiff has, therefore, alleged an intermediate amount of damages, the removing party must prove by a preponderance of the evidence that the amount in controversy exceeds $75, 000. Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); see also De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). This showing may be made by either (1) showing that it is facially apparent that the plaintiff's claims likely exceed $75, 000 or (2) setting forth “summary judgment type evidence” of facts in controversy that support a finding of the jurisdictional amount. Manguno, 276 F.3d at 723; Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). “[I]f it is facially apparent from the petition that the amount in controversy exceeds $75, 000 at the time of removal, post-removal affidavits, stipulations, and amendments reducing the amount do not deprive the district court of jurisdiction.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). If the removing defendant cannot show that the amount in controversy is facially apparent, it may be able to prove “by setting forth the facts in controversy - preferably in the removal petition, sometimes by affidavit - that support a finding of the requisite amount.” Luckett, 171 F.3d at 298.

         If the removing party satisfies its burden, the plaintiff can only defeat removal by showing that it is “legally certain that his recovery will not exceed the amount stated in the state complaint.” De Aguilar, 47 F.3d at 1412; see St. Paul Mercury Indemn. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) (β€œIt must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.”). Absent a statute that restricts recovery, β€œ[l]itigants who want to prevent removal must file a binding stipulation or affidavit with their complaints; once a defendant has removed ...

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