United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
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.
lawsuit arises out of an alleged slip and fall at a Petco
Animal Supply Store in New Orleans.
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.
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.”
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.
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.
Motion to Remand
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.”
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.
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.
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
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) (“It 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, “[l]itigants who want
to prevent removal must file a binding stipulation or
affidavit with their complaints; once a defendant has removed