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Torres v. Mall of Louisiana, LLC

United States District Court, M.D. Louisiana

December 5, 2017

AMANDA TORRES
v.
MALL OF LOUISIANA, LLC, ET AL.

         NOTICE

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U.S. District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion to Remand, filed by plaintiff Amanda Torres.[1] The Motion is unopposed.[2] For the following reasons, the undersigned recommends[3] that the Motion be GRANTED and that this matter be REMANDED to the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, for lack of subject matter jurisdiction under 28 U.S.C. § 1332(a).

         Factual and Procedural Background

         On or about June 9, 2017, Plaintiff filed a Petition for Damages in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, against Mall of Louisiana, LLC, Xencom Facility Management, LLC and The Cincinnati Insurance Company (“Cincinnati”) (collectively, “Defendants”), seeking damages for the injuries Plaintiff allegedly sustained from a slip and fall that occurred on or about July 30, 2016.[4] Plaintiff alleges that while she was shopping at Mall of Louisiana, LLC, in Baton Rouge, she slipped and fell on a slippery substance near the food court, “which purported to be vomit, ” due to the Defendants' failure to clean the floor and/or display a “Wet Floor” sign.[5] Plaintiff claims that she sustained bodily injuries as a result of the fall and seeks damages for right shoulder pain, right wrist pain, spinal injuries, numbness in her extremities, dizziness, migraine headaches, limited use and range of motion in the affected areas, pain in the affected areas and sleep and appetite interruption.[6]

         Cincinnati removed the matter to this Court on July 19, 2017, asserting that the Court has diversity jurisdiction under 28 U.S.C. § 1332.[7] Cincinnati alleges that the parties are diverse because Plaintiff is a Louisiana citizen, Cincinnati is incorporated in Ohio and has its principal place of business in Ohio, all of the individual members of Xencom Facility Management, LLC are citizens of Texas, and the members of Mall of Louisiana LLC are citizens of Delaware and Illinois.[8] Cincinnati also asserts that the amount in controversy is met based upon the damages sought by Plaintiff in the Petition.[9] Cincinnati asserts that removal is timely because it was served with a copy of the Petition through the Louisiana Secretary of State on June 27, 2017.[10]

         After reviewing the Notice of Removal and the information contained in the record, the undersigned could not determine whether the requisite amount in controversy was met in this case. As such, the undersigned issued a Notice and Order on September 18, 2017, raising the issue of subject matter jurisdiction sua sponte and requiring the parties to submit memoranda focused on the issue of whether the requisite amount in controversy was met.[11] On September 28, 2017, Cincinnati filed a Memorandum Regarding Good Faith Amount in Dispute, in Support of Removal Based Upon Diversity Jurisdiction, [12] as ordered by the Court. In the Memorandum, Cincinnati asserts that Plaintiff's alleged damages exceed the jurisdictional amount of $75, 000 because Plaintiff claims she injured her back, shoulder, wrist and ribs in the underlying accident and Plaintiff sustained “a possible rib fracture, carpal tunnel injury and spinal injuries.”[13] Cincinnati further alleges that Plaintiff's arm was placed in a sling, she received at least two injections, she underwent three x-rays and she has been treating for approximately 14 months.[14] Cincinnati emphasizes that Plaintiff seeks past, present and future mental damages, physical pain and suffering, medical expenses, lost wages and lost income. Cincinnati asserts that the quantum damages awarded for similar injuries in Louisiana exceed the $75, 000 threshold.[15] Thus, Cincinnati asserts that if Plaintiff is successful in proving her general damages, these damages alone would exceed the jurisdictional amount of $75, 000.[16]

         On October 18, 2017, Plaintiff filed the instant Motion to Remand, asserting that while the parties are diverse, the amount in controversy does not exceed $75, 000 in this case.[17] Plaintiff argues the Defendants have not provided any competent evidence that the claims exceed the jurisdictional threshold of $75, 000 and that this matter must be remanded to state court. On December 1, 2017, Cincinnati filed a Notice into the record stating that it does not oppose remand of this matter to state court.[18]

         Applicable Law and Analysis

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Pursuant to 28 U.S.C. § 1332(a), when original jurisdiction is based on diversity of citizenship, the cause of action must be between “citizens of different States” and the amount in controversy must exceed “the sum or value of $75, 000, exclusive of interest and costs.” 28 U.S.C. § 1332(a)-(a)(1). “Importantly, the jurisdictional facts must be judged as of the time the complaint is filed; subsequent events cannot serve to deprive the court of jurisdiction once it has attached.” St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253-54 (5th Cir. 1998). Remand is proper if at any time the court lacks subject matter jurisdiction. See, 28 U.S.C. § 1447(c). The removal statute, 28 U.S.C. § 1441, is strictly construed and any doubt as to the propriety of removal should be resolved in favor of remand. Gasch v. Hartford Acc. & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007).

         If removal is sought on the basis of diversity jurisdiction, then “the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy.” 28 U.S.C. § 1446(c)(2). If, however, the “State practice . . . does not permit demand for a specific sum . . . [removal] is proper if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds [$75, 000].” 28 U.S.C. § 1446(c)(2)(A)(ii)-(B). “In order to remain in federal court, the removing parties must prove by a preponderance of the evidence that the jurisdictional minimum exists.” Morton v. State Farm Ins. Co., 250 F.R.D. 273, 274 (E.D. La. 2008) (citing Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999)). The removing party may make this showing in either of two ways: “(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, 171 F.3d at 298 (quoting Allen v. R&H Oil & Gas Co., 73 F.3d 1326, 1335 (5th Cir. 1995)).

         Here, Cincinnati, the removing defendant, has not met its “burden to show that the jurisdictional amount is facially apparent for the present purposes, nor . . . made a showing sufficiently particularized to meet [their] burden.” Becnel v. State Farm Fire & Cas. Co., Civ. A. No. 07-6742, 2007 WL 4570821, at *1 (E.D. La. Dec. 26, 2007). In the state court Petition, Plaintiff alleges that she sustained bodily injuries as a result of the fall and seeks damages for right shoulder pain, right wrist pain, spinal injuries, numbness in her extremities, dizziness, migraine headaches, limited use and range of motion in the affected areas, pain in the affected areas and sleep and appetite interruption.[19] While Plaintiff seeks several items of ...


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