United States District Court, E.D. Louisiana
CLEO P. SYLVESTER
DOLGENCORP, LLC D/B/A DOLLAR GENERAL
ORDER AND REASONS
S. VANCE, UNITED STATES DISTRICT JUDGE
the Court is plaintiff's motion to remand because the
Court does not have diversity jurisdiction over the
action. Because defendant's removal was
untimely under 28 U.S.C. § 1446(b)(1), the action is
remanded to state court.
lawsuit arises out of plaintiff Cleo P. Sylvester's
slip-and-fall at a Dollar General store. On September 16,
2016, plaintiff allegedly entered the front door of a Dollar
General located in St. Bernard Parish. 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. Plaintiff allegedly fell
“violently” onto her knees and then the left side
of her body. 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
September 14, 2017, plaintiff filed this lawsuit in state
court against defendant DG Louisiana, LLC. Plaintiff
asserted that she has suffered injuries to her neck and back
as a result of her fall. 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.
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. On December 18, 2018, plaintiff moved to
remand the matter to state court.Plaintiff does not dispute
that there is complete diversity between the
parties. Plaintiff instead argues that defendant
has not sufficiently shown that the amount-in-controversy
threshold has been met.
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).
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.
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
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 ...