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Sylvester v. Dolgencorp, LLC

United States District Court, E.D. Louisiana

March 11, 2019

CLEO P. SYLVESTER
v.
DOLGENCORP, LLC D/B/A DOLLAR GENERAL

         SECTION “R” (2)

          ORDER AND REASONS

          SARAH S. VANCE, UNITED STATES DISTRICT JUDGE

         Before the Court is plaintiff's motion to remand because the Court does not have diversity jurisdiction over the action.[1] Because defendant's removal was untimely under 28 U.S.C. § 1446(b)(1), the action is remanded to state court.

         I. BACKGROUND

         This lawsuit arises out of plaintiff Cleo P. Sylvester's slip-and-fall at a Dollar General store.[2] On September 16, 2016, plaintiff allegedly entered the front door of a Dollar General located in St. Bernard Parish.[3] She alleges that she slipped on a “water and/or liquid water type substance” that was on the floor approximately one to two feet past a mat positioned at the store's entryway.[4] Plaintiff allegedly fell “violently” onto her knees and then the left side of her body.[5] According to plaintiff, the Dollar Store employees either knew or should have known about the dangerous condition of the floor, but had not placed any warning signs to inform patrons that the floor was slippery.[6]

         On September 14, 2017, plaintiff filed this lawsuit in state court against defendant DG Louisiana, LLC.[7] Plaintiff asserted that she has suffered injuries to her neck and back as a result of her fall.[8] She claims that her fall was caused by the negligence of defendant's agents or employees, and that defendant is liable for her injuries under the doctrine of res ipsa loquitur.[9]

         Defendant removed this action to federal court on September 13, 2018, asserting that the Court has subject matter jurisdiction because the parties are diverse and the amount-in-controversy exceeds $75, 000.[10] On December 18, 2018, plaintiff moved to remand the matter to state court.[11]Plaintiff does not dispute that there is complete diversity between the parties.[12] Plaintiff instead argues that defendant has not sufficiently shown that the amount-in-controversy threshold has been met.[13]

         II. LEGAL STANDARD

         A defendant may generally remove a state court civil action to federal court if the federal court has original jurisdiction over the action. 28 U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002). “The removing party bears the burden of establishing that federal jurisdiction exists.” De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995) (citation omitted). “Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Id. at 723. Although the Court must remand the case to state court if at any time before final judgment it appears that the Court lacks subject matter jurisdiction, the Court's jurisdiction is fixed as of the time of removal. 28 U.S.C. § 1447(c); Doddy v. Oxy USA, Inc., 101 F.3d 448, 456 (5th Cir. 1996).

         A district court has original jurisdiction in a case in which the amount in controversy exceeds $75, 000, and the parties are citizens of different states. 28 U.S.C. § 1332. When a petition filed in state court does not specify the numerical value of the damage claim, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75, 000. Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). “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-preferably in the removal petition, but sometimes by affidavit-that support a finding of the requisite amount.'” Id. (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)).

         Whether a defendant timely removes a matter to federal court is a separate question from whether the defendant has shown by a preponderance of the evidence that the Court has subject matter jurisdiction.

         Section 1446(b) addresses the timeliness of removal, and provides:

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. …
[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ...

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