United States District Court, M.D. Louisiana
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the U.S. District Court.
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.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
MAGISTRATE JUDGE'S REPORT AND
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE
the Court is a Motion to Remand, filed by plaintiff Amanda
Torres. The Motion is unopposed. For the following
reasons, the undersigned recommends 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.
and Procedural Background
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. 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. 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
removed the matter to this Court on July 19, 2017, asserting
that the Court has diversity jurisdiction under 28 U.S.C.
§ 1332. 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. Cincinnati also asserts that the amount in
controversy is met based upon the damages sought by Plaintiff
in the Petition. 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.
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. On September 28, 2017,
Cincinnati filed a Memorandum Regarding Good Faith Amount in
Dispute, in Support of Removal Based Upon Diversity
Jurisdiction,  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.” 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. 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. Thus, Cincinnati asserts that
if Plaintiff is successful in proving her general damages,
these damages alone would exceed the jurisdictional amount of
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. 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
Law and Analysis
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).
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.
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. While Plaintiff seeks
several items of ...