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Zito v. J.C. Penney Services, L.L.C.

United States District Court, M.D. Louisiana

January 22, 2019

TANYA ZITO
v.
J.C. PENNEY SERVICES, L.L.C

          ERIN WILDER-DOOMES, UNITED STATES MAGISTRATE JUDGE

         Please take notice that the attached Magistrate Judge's Report and Recommendation 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

         Before the court is the Motion to Remand (“Motion”) filed by Plaintiff Tanya Zito (“Plaintiff”). The Motion is opposed by removing party J.C. Penney Corporation, Inc. For the reasons set forth herein, the undersigned RECOMMENDS[1] that the Motion[2] be GRANTED IN PART and that this action be REMANDED to the Nineteenth Judicial District Court, Parish of East Baton Rouge, State of Louisiana for lack of subject matter jurisdiction under 28 U.S.C. § 1332. To the extent Plaintiff requests an award of costs and attorney's fees under 28 U.S.C. § 1447(c), the undersigned recommends that such request be DENIED.

         I. Facts and Procedural Background

         This is a civil action involving claims for damages based upon the injuries allegedly sustained by Plaintiff on November 25, 2017 when Plaintiff slipped and fell in a store Plaintiff claims was owned by “J.C. Penney Services, L.L.C.” located inside the Mall of Louisiana.[3] As a result of the accident, Plaintiff filed a Petition for Damages (“Petition”) against Defendant J.C. Penney Services, L.L.C. (“Defendant”) on or about June 8, 2018 in the Nineteenth Judicial District Court for the Parish of East Baton Rouge.[4] On July 12, 2018, J.C. Penney Corporation, Inc. (“J.C. Penney Corporation”) removed the matter to this Court asserting that this Court has diversity jurisdiction under 28 U.S.C. § 1332.[5] Specifically, the Notice of Removal alleges that Plaintiff is a citizen and domiciliary of Louisiana and J.C. Penney Corporation is incorporated in Delaware with its principal place of business in Texas.[6] J.C. Penney Corporation claims that Plaintiff “improperly identified …J.C. Penney Services, L.L.C.” as defendant in this matter.[7]

         The Notice of Removal, referencing the Petition, alleges the following to establish the amount in controversy: Plaintiff fell into a puddle of clear liquid, which caused her foot and knee to swell immediately.[8] Plaintiff was thereafter transported to the hospital by ambulance. Plaintiff allegedly suffered “serious injuries” including but not limited to: muscle spasms, lower back pain, swelling of her knee, L3-L4 disc bulge, L4-L5 disc bulge, L5-S1 disc bulge, lumbar facet arthropathy, lumbar sprain, lumbar strain, lumbar radiculopathy, right ankle sprain, knee pain, shoulder pain, sprain of cervical ligaments, cervicalgia, pain in thoracic spine, strain of back wall of thorax, sprain of ligaments of thoracic spine, sprain of left AC joint, sprain of left rotator cuff capsule, stiffness of left shoulder, pain in the right knee, sprain of MCL right knee, fatigue, loss of sleep, inability to walk for a period of time and “many other injuries.”[9] In connection with these injuries, Plaintiff seeks the following damages: past, present and future mental pain and suffering, physical pain and suffering, and medical expenses; humiliation and embarrassment; loss of enjoyment of life and future income; lost wages; and costs and judicial interest.[10] Plaintiff also affirmatively alleges that, upon information and belief, her “damages are in excess of Fifty Thousand Dollars and 00/100 ($50, 000).”[11] J.C. Penney Corporation claims that the foregoing, in addition to the fact that Plaintiff seeks to recover through a Commercial General Liability insurance policy issued to J.C. Penney Corporation with liability limits of $1, 000, 000 per accident, [12] establishes that the amount in controversy requirement is met.[13]

         On July 28, 2018, the undersigned sua sponte ordered J.C. Penney Corporation to file an amended notice of removal that adequately alleged the citizenship of J. C. Penney Services, L.L.C. (the named defendant), as well as a memorandum and supporting evidence regarding the amount in controversy.[14] On August 6, 2018, J.C. Penney Corporation filed its Motion to Substitute Notice of Removal, which attached an amended Comprehensive Notice of Removal (“Amended Notice”) that properly pled the citizenship of J.C. Penney Services, L.L.C.[15] The next day, J.C. Penney Corporation filed its Memorandum on Subject Matter Jurisdiction (“Memorandum”) in compliance with the Court's July 28, 2018 Order.[16] Plaintiff responded with the instant Motion.[17]

         II. Arguments of the Parties

         A. J.C. Penney Corporation's Amended Notice and Memorandum

         J.C. Penney Corporation's Amended Notice and Memorandum aver that diversity among the parties has been established, as Plaintiff is a citizen of Louisiana, J.C. Penney Corporation is a corporate citizen of Delaware and Texas, and Defendant is a limited liability company with two individual members who are Texas citizens.[18]

         J.C. Penney Corporation acknowledges in the Amended Notice and/or Memorandum that, as the removing party, it has the burden to establish that the amount in controversy is met, in one of two ways: (1) either by demonstrating that it is “facially apparent” from the petition that the claim likely exceeds $75, 000, or (2) by setting forth the facts in controversy that support a finding of the requisite amount.[19] If the defendant provides evidence to show by a preponderance that the amount is met, then the burden shifts to the plaintiff to show to a legal certainty that the amount in controversy is not met.[20] J.C. Penney Corporation further recognizes that, while Louisiana law does not allow Plaintiff to plead a specific amount of damages, “it is apparent from the fact [sic] of the Petition, as well as the additional facts set forth herein, that the amount in controversy [is met]”.[21] Likewise, according to J.C. Penney Corporation, “it is clear that if plaintiff does succeed in proving her claim, she will almost certainly recover in excess of $75, 000 based on reported cases with similar injuries.”[22]

         In support of the foregoing contentions, J.C. Penney Corporation relies on Plaintiff's injuries, including multiple disc bulges, muscle spasms, lower back pain, pain in thoracic spine, sprain of thoracic spine ligaments, etc. (see listing, supra), and Louisiana state court cases involving general damage awards for these types of injuries.[23] In the Amended Notice, J.C. Penney Corporation specifically contends that “Louisiana courts have awarded well over $75, 000 for lumbar bulges, alone, even without a recommendation for surgery, ” citing two unreported Louisiana district court cases that allegedly awarded $200, 00 in general damages for lumbar injuries without surgery, [24] and Thomas v. Louis Dreyfus Commodities, LLC, [25] wherein this Court recognized that courts have awarded general damages to plaintiffs who had cervical and lumbar injuries, without surgeries, several times the amount of incurred medical expenses. In its Memorandum, J.C. Penney Corporation also relies on Henry v. National Union Fire Ins. Co., wherein Louisiana's First Circuit Court of Appeal upheld an award of $65, 000 in general damages for two level disc bulge, cervical strain, and cervical radiculopathy without herniation[26] and Yeager v. Allstate Ins. Co., wherein Louisiana's Third Circuit upheld an award of $19, 000 in general damages for thoracic pain without disc bulging, [27] among other authority.[28]

         J.C. Penney Corporation acknowledges that, while a single disc bulge likely does not satisfy the amount in controversy requirement, it is facially apparent from Plaintiff's allegations, when viewed “in their totality, ” that Plaintiff's claims exceed $75, 000 based on the total amount awarded by the courts in the referenced cases for all of the various injuries claimed by Plaintiff. Further, J.C. Penney Corporation contends that the foregoing cases, which feature analogous injuries, also satisfy its burden of showing, by a preponderance of the evidence, that the amount in controversy is satisfied.[29]

         B. Plaintiff's Motion to Remand

         Plaintiff contends that J.C. Penney Corporation's removal is “jurisdictionally defective” because J.C. Penney Corporation has not demonstrated that the amount in controversy is met.[30]Regarding the facially apparent inquiry, Plaintiff contends that her alleged injuries are “general and not specific.”[31] Further, while the categories of damages she lists in her Petition “may possibly” bring the amount in controversy to more than $75, 000, the Fifth Circuit has held that such speculation is insufficient to satisfy the amount in controversy requirement.[32] Plaintiff further contends that, while removal is dependent on the amount in dispute at the time of removal, which includes her transportation by ambulance to Baton Rouge General Hospital and treatment by two providers, [33] Plaintiff did not specifically allege that her damages exceed $75, 000, and merely asserted “on information and belief” that her damages are in excess of $50, 000.[34] Plaintiff contends that the $50, 000 allegation is subject to “mere consideration” and should not be found “definite.”[35]

         Next, Plaintiff argues that remand is warranted as J.C. Penney Corporation has produced no evidence or set forth any specific facts to support a finding of the requisite amount, such as medical records or other evidence, besides reference to J.C. Penney Corporation's $1 million insurance policy.[36] Plaintiff further contends that J.C. Penney Corporation has not requested any discovery from Plaintiff regarding the injuries and damages Plaintiff sustained.[37] Plaintiff also relies on Rogers, wherein the United States District Court for the Eastern District of Louisiana held that the defendant failed to carry its burden of establishing that the amount in controversy requirement was met when the only evidence presented was $57, 805.80 in pre-removal medical expenses, with no showing of future medical expenses or other damages, and further held: “Plaintiff has not alleged in his petition that his pain and suffering along with medical expenses would exceed $75, 000, and Defendants provide no evidence to suggest that they would.”[38]

         C. J.C. Penney Corporation's Opposition to Remand

         In opposition, J.C. Penney Corporation re-avers the cases and arguments set forth in its Memorandum (see discussion, supra). J.C. Penney Corporation continues to contend that it is facially apparent that the amount in controversy is satisfied based on the “value of each of plaintiff's alleged injuries, as stated in plaintiff's petition for damages, ” which injuries Plaintiff pleaded “with remarkable specificity, ” along with “additional facts that affect quantum, i.e., being transported by ambulance.”[39] Finally, J.C. Penney Corporation argues that Rogers is factually distinguishable, because in Rogers, the defendants conceded that it was not facially apparent that the amount in controversy was met, and instead relied on factual evidence to satisfy their obligation to show that it was met. In this case, however, J.C. Penney Corporation has always contended that it is facially apparent that Plaintiff's claims exceed the jurisdictional minimum and does not rely on factual evidence to satisfy its burden. On these grounds, J.C. Penney Corporation contends that the Motion to Remand should be denied.[40]

         III. Law and Analysis

         A. Legal Standards

         A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.”[41] 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.”[42] Remand is proper if at any time the court lacks subject matter jurisdiction.[43] 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.[44]

         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.”[45] If, however, the “[s]tate 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].”[46] In Louisiana state court, plaintiffs are generally prohibited from alleging a specific monetary amount of damages sought in their petitions.[47]

         The burden of proof is on the removing defendant to establish that the amount in controversy has been satisfied.[48] The defendant may make this showing by either (1) demonstrating that it is facially apparent that the claims are likely above $75, 000, or (2) setting forth facts in controversy that support a finding of the jurisdictional minimum.[49] If the defendant can produce evidence sufficient to show by a preponderance, i.e., summary judgment-type evidence, that the amount in controversy exceeds the jurisdictional threshold, the plaintiff can defeat diversity jurisdiction only by showing to a legal certainty that the amount in controversy does not exceed $75, 000.[50] The jurisdictional facts that support removal must be judged at the time of removal.[51]

         Since the parties are of diverse citizenship, which is undisputed, the only issue with regard to the Court's exercise of subject matter jurisdiction is whether the amount in controversy has been satisfied under 28 U.S.C. § 1332(a).

         B. It Is Not Facially Apparent From the Petition That the Amount in Controversy Is Met.

         The undersigned previously determined that it was not facially apparent from the Petition that the amount in controversy is likely to exceed $75, 000, which was the reason for the July 28, 2018 sua sponte order.[52] Therefore, the undersigned rejects J.C. Penney Corporation's arguments to the contrary and analyzes only the question of whether J.C. Penney Corporation has established by a preponderance of the evidence that the amount in controversy is met.

         C. J.C. Penney Corporation Has Not Met Its Burden of Establishing that the Amount in Controversy Likely Exceeds $75, 000, Exclusive of Interest and Costs

         The undersigned finds, based upon a review of the record, that J.C. Penney Corporation has failed to establish by a preponderance of the evidence that the amount in controversy is met.

         J.C. Penney Corporation's reliance on Plaintiff's injuries, and general categories of damages, [53] is not summary-judgment type evidence[54] that shows that Plaintiff's damages in this case will likely exceed $75, 000 exclusive of interest and costs. J.C. Penney Corporation has not provided any information that sets forth the extent of Plaintiff's injuries and whether they are permanent, the amount of medical expenses she has incurred, [55] the amount of future medical expenses she may incur, whether a surgery is recommended, the amount of her past lost wages, or the amount of her anticipated lost future wages and/or any other relevant evidence of Plaintiff's damages. Indeed, remand has been ordered even where the evidence established that the plaintiff's past medical expenses exceeded $50, 000 and general damages were claimed because there was no evidence that the plaintiff's damages likely exceeded $75, 000 exclusive of interest and costs (i.e., there was no evidence of the plaintiff's future medical expenses, present medical condition, past, present or future lost wages, lost earning capacity, or other ...


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