United States District Court, E.D. Louisiana
MICHAEL JONES SR.
PINNACLE ENTERTAINMENT, INC.
ORDER AND REASONS
filed a motion to remand, alleging the above-captioned case
was not effectively removed and the amount in controversy
does not meet the jurisdictional threshold. Rec. Doc. 9.
Defendant timely filed a response in opposition. Rec. Doc.
10. For the reasons discussed below, IT IS
ORDERED that the motion to remand is
BACKGROUND AND PROCEDURAL HISTORY
case involves an alleged slip and fall occurring on December
29, 2018 while plaintiff Michael Jones, Sr. was a guest at a
property owned by defendant Pinnacle Entertainment, Inc.
d/b/a Boomtown Belle Casino Westbank
(“Boomtown”). Rec. Doc. 1-2 at 4. On June 7,
2019, plaintiff filed a petition for damages in the 24th
Judicial District Court for the Parish of Jefferson alleging
that he was walking through the main entrance of
defendant's property when he slipped and fell due to
rainwater on the floor. Id. Plaintiff avers that he
suffered “serious injuries to his brain and/or head,
neck, left shoulder and/or arm, and back.” Id.
Plaintiff seeks damages for past, present, and future
physical pain and suffering, emotional and mental anguish,
medical expenses and pharmaceutical bills, loss of enjoyment
of life, and disability, along with all other damages to be
proven at trial. Id. at 6.
8, 2019, defendant timely filed a notice of removal asserting
complete diversity between the parties as plaintiff is a
resident of Louisiana while defendant is a Delaware
corporation with its principle place of business in Nevada.
Rec. Doc. 1 at 1-2. Defendant alleged in its removal notice
that the amount in controversy exceeds the federal
jurisdictional threshold because plaintiff claims to have
suffered bodily injuries, including pain and suffering,
emotional and mental anguish, medical and pharmaceutical
expenses, loss of enjoyment of life, and disability that are
ongoing and will continue for an indefinite time period into
the future. Id.
August 8, 2019 plaintiff filed the instant motion to remand.
Rec. Doc. 9.
ANALYSIS, AND FINDINGS
courts have original jurisdiction, called diversity
jurisdiction, over all civil actions where the matter in
controversy exceeds $75, 000 and is between citizens of
different states. 28 U.S.C. §1332(a). If a civil action
over which the district courts of the United States have
original jurisdiction is brought in a state court, it
“may be removed by the defendant or defendants, to the
district court of the United States for the district and
division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). Defendants must
file a notice of removal in federal court within thirty (30)
days after receipt of the initial pleading. 28 U.S.C. §
1446(b)(1). “Promptly after the filing of such notice
of removal of a civil action the defendant or defendants
shall give written notice thereof to all adverse parties and
shall file a copy of the notice with the clerk of such State
court, which shall effect the removal and the State court
shall proceed no further unless and until the case is
remanded.” 28 U.S.C.A. § 1446(d). The removing
party bears the burden of showing that removal was proper,
and any ambiguities are to be strictly construed in favor of
remand. See Manguno v. Prudential Prop. & Cas. Ins.
Co., 276 F.3d 720, 722 (5th Cir. 2002).
Notice of removal
notice of removal was filed electronically with the state
court on August 23, 2019, after an allegedly unsuccessful
initial attempt to do so by mail on July 23, 2019. The defect
in removal procedure appears to have been cured, at the
latest, a month and a half after the notice of removal was
filed in federal court on July 8, 2019. “Defects in
removal procedure are not normally grounds for remand and may
be cured.” Carr v. Capital One, N.A., 460
Fed.Appx. 461, 468 (5th Cir. 2012) (citing In re Allstate
Ins. Co., 8 F.3d 219, 221 n. 4 (5th Cir.1993)).
Defendant avers no action was taken in state court during the
intervening period, and plaintiff does not indicate otherwise
in his motion. Plaintiff has not been prejudiced by the delay
in filing a copy of the removal notice with the state court,
and the since-cured procedural defect does not warrant
a complaint alleges an unspecified amount of damages, the
party invoking diversity jurisdiction must show by a
preponderance of the evidence that the amount-in-controversy
requirement is met.” See Brand Servs., L.L.C. v.
Irex Corp., 909 F.3d 151, 155 (5th Cir. 2018) (citing
St. Paul Reinsurance Co. v. Greenberg, 134 F.3d
1250, 1253 (5th Cir. 1998)). “We ask whether it is
facially apparent from the complaint that the claims exceed
the jurisdictional amount, and if it is not, the court may
rely on summary judgment-type evidence to ascertain the
amount in controversy.” Id. (internal
quotation marks omitted).
case, defendant does not provide summary judgment type
evidence, so the Court considers only whether it is facially
apparent from the petition that plaintiff's claims are
likely to exceed $75, 000. Plaintiff alleges “serious
injuries to his brain and/or head, neck, left shoulder and/or
arm, and back.” Rec. Doc. 1-2 at 4. In damages,
plaintiff seeks past, present, and future: physical pain and
suffering, emotional and mental anguish, medical expenses and
pharmaceutical bills, loss of enjoyment of life, and
disability. Rec. Doc. 1-2 at 6.
Luckett v. Delta Airlines, Inc., the Fifth Circuit
found it was facially apparent damages exceeded $75, 000
where the alleged damages included “property, travel
expenses, an emergency ambulance trip, a six day stay in the
hospital, pain and suffering, humiliation, and  temporary
inability to do housework after hospitalization.”
Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298
(5th Cir. 1999). Similarly, in Gebbia v. Wal-Mart Stores,
Inc., the Fifth Circuit held that it was facially
apparent the plaintiff's claim exceeded $75, 000 where
plaintiff alleged injuries to her “right wrist, left
knee and patella, and upper and lower back” and damages
including “medical expenses, physical pain and
suffering, mental anguish and suffering, loss of enjoyment of
life, loss of wages and earning capacity, and permanent
disability and disfigurement.” Gebbia v. Wal-Mart
Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000).
Conversely, in Simon v. Wal-Mart, the Fifth Circuit
held the jurisdictional threshold was not met where the
plaintiff alleged “bodily injuries and damages
including but not limited to a severely injured shoulder,
soft-tissue injuries throughout her body, bruises, abrasions
and other injuries . . .” See Simon v. Wal-Mart
Stores, Inc., 193 F.3d 848, 851 (5th Cir. 1999). The
Fifth Circuit distinguished the case from Luckett,
noting the plaintiff's complaint in Simon was
not specific, alleged damages from less severe physical
injuries and did not allege emotional distress, disability,
impairments, or other claims that would have supported a
larger monetary basis for federal jurisdiction. Id.
present case falls closer to Luckett and
Gebbia than Simon. Analogous to the
plaintiff in Gebbia, plaintiff here alleges
“serious injuries to his brain and/or head, neck, left
shoulder and/or arm, and back.” Rec. Doc. 1-2 at 4.
Furthermore, the damages sought here are similar to those in
Gebbia, except plaintiff here does not seek damages
for lost wages and earning capacity and alleges disability
rather than permanent disability. Although the present case
is not identical to Gebbia, the Court follows the
Fifth Circuit's guidance in Simon in finding
that plaintiff's allegation of severe physical injuries,
emotional distress, medical expenses, disability, and loss of
enjoyment supports a larger monetary basis for federal
jurisdiction. Therefore, on its face plaintiff's petition
supports damages ...