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Moss v. Popeyes Louisiana Kitchen, Inc.

United States District Court, E.D. Louisiana

October 23, 2019

OCEOLA MOSS
v.
POPEYES LOUISIANA KITCHEN, INC.

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before the Court is the plaintiff's motion to remand. For the reasons that follow, the motion to remand is DENIED.

         Background

         This litigation arises out of a slip-and-fall accident outside of a Popeyes Louisiana Kitchen.

         On March 28, 2018, Oceola Moss was exiting Popeyes Louisiana Kitchen when she stepped into a pothole and fell. Nearly one year later, Moss sued Liberty Mutual Fire Insurance, Co. and Popeyes Louisiana Kitchen, Inc. in state court, alleging that the defendants' negligence caused her to sustain injuries. Moss suffered a broken kneecap and seeks to recover for various damages, including past, present, and future pain and suffering, mental anguish and emotional pain, and medical expenses, as well as loss of enjoyment of life.

         On September 4, 2019, Liberty Mutual and Popeyes removed the lawsuit to this Court, invoking the Court's diversity jurisdiction. The plaintiff now moves to remand.

         I.

         A.

         Although the plaintiff challenges removal in this case, the removing defendant carries the burden of showing that “federal jurisdiction exists and removal was proper.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); see also Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993). The removal statute should be construed in favor of remand and “any ambiguities are construed against removal.” Manguno, 276 F.3d at 723 (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).

         B.

         A defendant may generally remove a civil action filed in state court if the federal court has original jurisdiction over the case -- that is, if the plaintiff could have brought the action in federal court from the outset. See 28 U.S.C. § 1441(a). To exercise diversity jurisdiction, complete diversity must exist between the plaintiff and all of the properly joined defendants, and the amount in controversy must exceed $75, 000. See 28 U.S.C. § 1332(a)(1). The only dispute here is whether the amount in controversy requirement is met.

         To determine whether it has jurisdiction, the Court must consider the allegations in the state court petition as they existed at the time of removal. See Manguno, 276 F.3d at 723 (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)). Louisiana law requires that a plaintiff include “no specific amount of damages” in her prayer for relief. La. Code Civ. Proc. art. 893.

         When the plaintiff has, therefore, alleged an indeterminate amount of damages, the removing party must prove by a preponderance of the evidence that the amount in controversy exceeds $75, 000. Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); see also De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995). This showing may be made by either (1) showing that it is facially apparent that the plaintiff's claims likely exceed $75, 000, or (2) setting forth “summary judgment type evidence” of facts in ...


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