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Cosey v. Wal-Mart Louisiana, LLC

United States District Court, M.D. Louisiana

August 26, 2019

GLYNDLYN COSEY
v.
WAL-MART LOUISIANA, LLC, WALMART INC., AND WAL-MART REAL ESTATE BUSINESS TRUST

          NOTICE AND ORDER

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.

         This is a civil action involving claims for damages asserted by Glyndlyn Cosey (“Plaintiff”) based upon the injuries she allegedly sustained on April 8, 2019 when she allegedly slipped and fell on a wet floor mat at the entrance of a Walmart store located in Ascension Parish, Louisiana (the “Accident”).[1] On July 19, 2019, Plaintiff filed her Petition for Damages (“Petition”) against Wal-Mart Louisiana, LLC, Walmart, Inc., and Wal-Mart Real Estate Business Trust (collectively, “Defendants”), who are alleged to be the owners/controllers of the Walmart store in question. Plaintiff alleges that she suffered personal injuries as a result of the Accident which were caused by the negligence of Defendants.[2] On August 22, 2019, Defendants removed the matter to this Court, alleging diversity jurisdiction under 28 U.S.C. § 1332.[3] However, Defendants have not shown that complete diversity exists because their citizenship allegations are deficient. Further, Defendant have not shown that the amount in controversy is met. Proper information regarding the citizenship of all parties, and the amount in controversy, is necessary to establish the Court's diversity jurisdiction under 28 U.S.C. § 1332.

         Complete Diversity

         Citizenship has been properly alleged as to Defendants in the Notice of Removal.[4]However, it is not clear that the parties are diverse because citizenship has not been adequately alleged as to Plaintiff. Specifically, Paragraph 12 of the Notice of Removal states that “Plaintiff is a resident of the State of Louisiana.”[5] The Fifth Circuit has explained that, “For diversity purposes, citizenship means domicile; mere residence in the State is not sufficient.”[6] Furthermore, “[f]or adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there.”[7] Thus, to properly allege the citizenship of an individual, a party must identify the individual's domicile. Accordingly, Defendants must properly identify the citizenship of Plaintiff, i.e., her domicile.

         Amount in Controversy

         It is not clear from the Notice of Removal or the Petition whether Plaintiff's claims likely exceed $75, 000, exclusive of interests and costs, as required by 28 U.S.C. § 1332. Plaintiff's Petition merely alleges that she “sustained injuries to her body and mind including, without limitation, injuries to her left shoulder requiring surgical repair, together with past and future mental anguish and physical suffering; past and future loss of enjoyment of life, ” for which Plaintiff seeks “past and future expenses for medical care; impairment; other expenses including, without limitation, travel to doctor appointments; and lost wages…[as well as] damages as are reasonable in the premises” and legal interest and costs.[8] The Notice of Removal also references the foregoing;[9] however, pleading only general injuries and general categories of damages is insufficient to establish that the federal jurisdictional minimum is reached.[10] “Courts have routinely held that pleading general categories of damages, such as ‘pain and suffering, disability, lost wages, loss of earning capacity, medical expenses, etc.,' without any indication of the amount of the damages sought, does not provide sufficient information for the removing defendant to meet his burden of proving that the amount in controversy is satisfied under the ‘facially apparent' test.”[11] Further, although the Petition references a surgical repair, there is no description regarding the nature or extent of the surgery.[12] There is also no description of any other actual injury suffered by Plaintiff, the actual amount of medical expenses Plaintiff has incurred thus far, Plaintiff's prognosis and recommended future treatment, and whether Plaintiff is working/can work. Defendants have not offered any specific medical information regarding Plaintiff's injuries, treatment, prognosis, and expenses in support of the amount in controversy.

         Further, in the Notice of Removal, Defendants rely on the lack of an allegation by Plaintiff in her Petition that her damages do not exceed the federal jurisdictional minimum as required by La. C.C.P. art. 893(A)(1);[13] however, this Court has held that a “plaintiffs' failure to follow La. C.C.P. art. 893(A)(1)'s mandate, while entitled to some consideration, in and of itself is not determinative of the amount in controversy.”[14] Likewise, the fact that Plaintiff did not include a stipulation in her Petition wherein she renounced the right to accept a judgment in excess of $75, 000[15] is also only one factor to be considered and is not determinative of the amount in controversy.[16]

         Finally, Defendants have not indicated whether Plaintiff has made any settlement demands in this case, nor introduced any other evidence that would indicate that the amount in controversy requirement is met (i.e., medical records, evidence of lost wages, discovery admissions, etc.).

         It is thus unclear from the Petition and the Notice of Removal whether there is complete diversity among the parties and whether the amount in controversy is satisfied. Although Plaintiff has not filed a Motion to Remand in this case, the Court sua sponte raises the issue of whether it may exercise diversity jurisdiction in this matter.[17]

         Accordingly, IT IS HEREBY ORDERED that on or before September 3, 2019, Defendants Wal-Mart Louisiana, LLC, Walmart, Inc., and Wal-Mart Real Estate Business Trust shall file a Motion to Substitute the Notice of Removal with a comprehensive Amended Notice of Removal, that contains all of Defendants' numbered allegations as revised, supplemented, and/or amended, without reference to any other document in the record, and that adequately alleges the citizenship of Plaintiff Glyndlyn Cosey.

         IT IS FURTHER ORDERED that on or before September 6, 2019, Defendants Wal-Mart Louisiana, LLC, Walmart, Inc., and Wal-Mart Real Estate Business Trust shall file a memorandum and supporting evidence concerning whether the amount in controversy requirement of 28 U.S.C. § 1332 is met.

         IT IS FURTHER ORDERED that on or before September 13, 2019, Plaintiff Glyndlyn Cosey shall file either: (1) a Notice stating that Plaintiff agrees that Defendants have established, by a preponderance of the evidence, that the amount in controversy likely exceeds $75, 000.00;[18]or (2) a Motion to Remand.

         The case will be allowed to proceed if jurisdiction is ...


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