United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Remand and for Payment of
Costs and Expenses (Rec. Doc. 8) filed by Plaintiff
Tonya Lee (“Lee”). Defendants, Wal-Mart Stores,
Inc. and Wal-Mart Louisiana, LLC (hereinafter collectively
referred to as “Wal-Mart”), oppose the motion.
(Rec. Doc. 9). The motion, set for submission on April 4,
2018, is before the Court on the briefs without oral
argument. Having considered the motion and memoranda of
counsel, the record, and the applicable law, the Court finds
that the Plaintiff's motion should be
GRANTED for the reasons set forth below.
initiated this suit in state court against Defendants for
personal injuries that she claims to have sustained in a
slip-and-fall accident at one of Defendants' stores.
Defendants removed this suit to federal court claiming
diversity jurisdiction. 28 U.S.C. § 1332(a)(1).
Plaintiff now moves to remand the case back to state court
contending that Defendants have not met their burden as to
the jurisdictional amount in controversy.
well-established that the party invoking the jurisdiction of
a federal court has the burden of proving that the exercise
of such jurisdiction is proper. St. Paul Reins. Co. v.
Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (citing
Gaitor v. Peninsular & Occid. S.S. Co., 287 F.2d
252, 253-54 (5th Cir. 1961)). Any doubt regarding whether
removal jurisdiction is proper should be resolved against
federal jurisdiction and in favor of remand. Acuna v.
Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.
2000) (citing Willy v. Coastal Corp., 855 F.2d 1160,
1164 (5th Cir.1988)).
Luckett v. Delta Airlines, Inc., the Fifth Circuit
summarized the analytical framework for determining whether
the amount in controversy requirement is met in cases removed
from Louisiana state courts where specific allegations as to
damage quantum are not allowed. 171 F.3d 295, 298 (5th Cir.
1999). In such cases, the removing defendant, as the party
invoking jurisdiction in a federal court, bears the burden of
proving, by a preponderance of the evidence, that the amount
in controversy exceeds $75, 000.00. Id. (citing
De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.
1993)). As the Fifth Circuit explained:
The defendant 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 B preferably in the removal
petition, but sometimes by affidavit B that support a finding
of the requisite amount.
Id. (citing Allen v. R & H Oil & Gas
Co., 63 F.3d 1326, 1335 (5th Cir. 1995)); Gebbia v.
Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th
argue that the nature of Plaintiff's alleged injuries
makes it facially apparent that the claims exceed the
jurisdictional amount. (Rec. Doc. 9). Defendants analogize
this case to Gebbia v. Wal-Mart Store, Inc.,
claiming that the Fifth Circuit's Gebbia
decision demonstrates that the amount in controversy is also
facially apparent here. 233 F.3d 880 (5th Cir. 2000). In
Gebbia, the Fifth Circuit found that the amount in
controversy was facially apparent from the pleadings because
Plaintiff alleged injuries to her wrist, knee, upper back,
and lower back and sought damages for medical expenses,
physical pain and suffering, mental anguish and suffering,
loss of enjoyment of life, loss of wages and earning
capacity, as well as permanent disability and disfigurement.
Id. at 883. While Plaintiff in this case seeks
damages on similar grounds, Plaintiff has not alleged
permanent disability or disfigurement, nor has she sought
damages for loss of earning capacity, making it appear from
the face of the complaint that her injuries are far less
severe than those suffered by the Gebbia plaintiff.
See Dalton v. Progressive Southeastern Insurance
Company, No. 16-12246, 2016 WL 4137232, *2 (E.D. La.
Aug. 4, 2016). Thus, Defendants' reliance on
Gebbia is misplaced.
the Court finds this case more akin to Simon v. Wal-Mart
Stores, Inc., 193 F.3d 848 (5th Cir. 1999). In
Simon, the Fifth Circuit found a plaintiff's
suit lacked subject matter jurisdiction when the amount in
controversy was insufficient to establish diversity
jurisdiction. Id. The plaintiff alleged injuries
after having been the victim of a purse-snatching incident in
a Wal-Mart parking lot. Specifically, the plaintiff asserted
suffering from “bodily injuries and damages including
but not limited to a severely injured shoulder, soft-tissue
injuries throughout her body, bruises, abrasions and other
injuries.” Id. at 850. The Simon
plaintiff also sought recovery for medical expenses and
“reasonable” damages for loss of consortium. The
Fifth Circuit noted that the plaintiff did not allege
“any damages for loss of property, emergency
transportation, hospital stays, specific types of medical
treatment, emotional distress, functional impairments, or
disability, which damages, if alleged, would have supported a
substantially larger monetary basis for federal
jurisdiction.” Id. at 851. Like in
Simon, the Plaintiff currently before this Court
alleges no specific types of injuries that would lead to an
inference that future medicals will be substantially high. In
fact, the exhibits show that Plaintiff has undergone only
minor chiropractic procedures for “what appear to be
soft-tissue injuries.” (Rec. Doc. 8-1); see
also (Rec. Doc. 8-2, pp. 1-7).
exhibits show the minimal extent of her injuries. At the time
Plaintiff filed in state court, December 6, 2017, her medical
bills totaled only $4, 889.00. (Rec. Doc. 8-2, p. 6).
Moreover, as of January 31, 2018, Plaintiffs medicals totaled
merely $5, 626.00. While the Court acknowledges Plaintiffs
failure to stipulate that her damages are below $75, 000.00,
failing to make such a stipulation is not determinative of
remand. “Rather, it only constitutes one factor.”
Maze v. Protective Insurance Company, No. 16-15424,
2017 WL 164420, *2 (E.D. La. Jan. 17, 2017).
face, Plaintiffs Petition does not support diversity
jurisdiction, and Defendants do not allege or aver additional
facts in support of federal jurisdiction. Therefore, this
Court lacks subject matter jurisdiction.
ORDERED that Plaintiffs Motion to Remand and for
Payment of Costs and Expenses (Rec. Doc. 8) is