Tina Richey v. Wal-Mart Stores, Inc., et al

Filing

Case: 10-20158

Document: 00511202075

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Date Filed: 08/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
August 12, 2010 N o . 10-20158 S u m m a r y Calendar Lyle W. Cayce Clerk

T IN A RICHEY, P la in t if f -A p p e lla n t , v. W A L -M A R T STORES, INC.; WAL-MART STORES TEXAS L.L.C., Defendants-Appellees.

A p p e a l from the United States District Court fo r the Southern District of Texas USDC No. 4:08-CV-00018

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* P la in t iff-A p p e lla n t Tina Richey appeals the district court's denial of her m o t io n to remand and argues that the district court did not have original ju r is d ic t io n over both defendants in her case. Because we find that complete d iv e r s it y existed at the time of removal from state court, we conclude that the d is t r ic t court did not err in denying Richey's motion to remand. Accordingly, we A F F IR M .

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 10-20158

F ACTUAL AND PROCEDURAL BACKGROUND O n November 30, 2007, Richey filed her original complaint against W a lm a r t Stores, Inc. ("Wal-Mart"), in the 9th District Court of Montgomery C o u n ty , Texas, alleging that Wal-Mart wrongfully terminated her employment in violation of Sabine Pilot Servs., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). More specifically, Richey's complaint asserted a cause of action under Texas c o m m o n law, alleging that she was terminated for the sole reason that she r e fu s e d to perform an illegal act. On January 3, 2008, Wal-Mart removed the action to the Houston Division o f the United States District Court for the Southern District of Texas. In its N o tic e of Removal, Wal-Mart asserted that the district court had diversity ju r is d ic t io n over the action pursuant to 28 U.S.C. § 1332(a). Wal-Mart noted t h a t the parties were diverse since the Plaintiff is a citizen of Texas, and "at the t im e of filing of Plaintiff's Original Petition and at the time of removal, W a l-M a r t , was a citizen of Delaware, and maintains its principal place of b u s in e s s in Arkansas." Wal-Mart also asserted that the amount in controversy e x c e e d e d $75,000. O n January 28, 2008, Richey filed her motion to remand, arguing that c o m p le t e diversity did not exist and that there was no evidence to substantiate W a l-M a r t 's claim that the amount in controversy exceeded $75,000. F e b r u a r y 19, 2008, the district court denied Richey's motion to remand. On May 22, 2008, Richey filed her First Amended Complaint in which she a d d e d Wal-Mart Stores Texas L.L.C. ("Wal-Mart TX") as a co-defendant.1 After On

Paragraph 3 of the Plaintiff's First Amended Complaint describes Wal-Mart TX as follows: Defendant, Wal-Mart Stores Texas, LLC, is a foreign entity and a limited liability corporation organized and existing under the laws of the State of Delaware, and a citizen of Delaware, whose principal office is located at 702

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No. 10-20158 t h e district court denied the Defendants' motions for summary judgment, the c a s e went to trial on November 16, 2009. On November 20, 2009, the jury issued a unanimous verdict in Wal-Mart's and Wal-Mart TX's favor. On November 24, 2 0 0 9 , the district court entered final judgment. R ic h e y timely appealed. On appeal, Richey argues that remand is

n e c e s s a r y because, at the time of removal: 1) complete diversity of citizenship d id not exist and; 2) the amount in controversy did not exceed $75,000. A N A L Y S IS " T h is court reviews de novo a district court's denial of a motion to remand." T e x a s Beef Group v. Winfrey, 201 F.3d 680, 686 (5th Cir. 2000). "The burden of e s t a b lis h in g subject matter jurisdiction in federal court rests on the party s e e k in g to invoke it." St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1 2 5 0 , 1253 (5th Cir. 1998). " W h e n removal is based on diversity of citizenship, diversity must exist at t h e time of removal." Texas Beef Group, 201 F.3d at 686; see also Howery v. A lls ta te Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) ("[The Defendant] must prove t h a t federal jurisdiction existed at the time of removal, or, at the very least, have a lle g e d facts prior to the entry of judgment in this case that establish federal s u b je c t -m a t t e r jurisdiction."). Regarding the requisite statutory amount in

c o n t r o v e r s y , "[t]o justify dismissal, it must appear to a legal certainty that the c la im is really for less than the jurisdictional amount." Greenberg, 134 F.3d at 1 2 5 3 (internal quotation marks omitted). "Jurisdictional findings of fact are r e v ie w e d for clear error." New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 3 2 1 , 327 (5th Cir. 2008).

S.W. 8th Street, Bentonville, Benton County, AR 72716-0555. Wal-Mart Stores Texas, LLC registered to do business in Texas as of June 30, 2007 and may be served with process by serving its registered agent for service of process, C.T. Corporation System at 350 North St. Paul St., Dallas, TX 75201.

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No. 10-20158 I. D IVERSITY OF CITIZENSHIP

O n appeal, Richey asserts that the district court did not have original j u r i s d ic tio n because the parties are not completely diverse. In her brief on a p p e a l, Richey recognizes that "[c]omplete diversity as to Defendant Wal-Mart S t o r e s , Inc. is apparent on the face of Appellant's Original Petition." Richey, h o w e v e r , argues that once an additional defendant was added, the additional d e fe n d a n t destroyed complete diversity. However, for the reasons that follow, w e conclude complete diversity existed at the time of removal, and consequently, w e find that the district court did not err in denying Richey's motion to remand. In Strawbridge v. Curtiss, 3 Cranch 267 (1806), the Supreme Court c o n s t r u e d the original Judiciary Act's diversity provision to require complete d iv e r s it y of citizenship. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) ("We h a v e adhered to that statutory interpretation ever since.") (citing Strawbridge, 3 Cranch at 267). At the time of removal, the record reveals that Wal-Mart was t h e only defendant to the action. Wal-Mart was the only defendant Richey n a m e d in her original petition in state court. Richey's petition makes clear that t h e parties are diverse since it alleges that she is a citizen of Texas, and that W a l-M a r t is incorporated in Delaware, with its principal place of business in A rk an sas. Furthermore, the record does not show the addition of another

d e fe n d a n t until May 22, 2008, when Richey filed her First Amended Complaint, a d d in g Wal-Mart TX as a co-defendant. Since removal to federal court was effectuated on January 3, 2008, any s u b s e q u e n t ly added defendants do not alter the complete diversity that existed a s of January, 2008.2 That is, even if it could be shown that Wal-Mart TX is a

The absurdity of Richey's argument against complete diversity is apparent since, in this instance, she is the one who added Wal-Mart TX to the action when, on May 22, 2008, she filed her First Amended Complaint. Richey cites to no authority, and we know of none, that permits a Plaintiff to destroy complete diversity by adding a non-diverse defendant after the time of removal. Richey's arguments, however, do not end there. Richey also argues that Wal-

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No. 10-20158 c it iz e n of Texas, and therefore a non-diverse defendant, such a demonstration w o u ld be irrelevant to our analysis since this Court considers whether diversity " e x is t [e d ] at the time of removal." Texas Beef Group, 201 F.3d at 686. Because Wal-Mart and Richey are completely diverse, and because they w e r e the only two named parties to the action at the time of removal, we c o n c lu d e that complete diversity existed at the time of removal. Accordingly, the d is t r ic t court did not err when it denied Richey's motion to remand. II. T HE AMOUNT IN CONTROVERSY

R ic h e y also contends that diversity jurisdiction did not exist at the time o f removal because the amount in controversy requirement was not met. 28 U .S .C . § 1332(a) limits a district court's diversity jurisdiction to "civil actions w h e r e the matter in controversy exceeds the sum or value of $75,000 . . . ." Richey claims that the district court relied on mere hearsay in its determination t h a t Richey's claims would amount to at least $75,000. We have reviewed the r e c o r d and the district court's factual findings for clear error, and we disagree.

Mart failed to file its Answer to her petition in state court by the court's deadline, and consequently, Wal-Mart Stores Texas, L.P. inserted itself into this action by filing an answer in state court on January 2, 2008. Richey essentially argues that Wal-Mart is the only diverse defendant, and that because a different entity (Wal-Mart Stores Texas, L.P., who Richey claims is not diverse) filed an answer in state court, complete diversity did not exist at the time of removal. This convoluted argument is not supported by the record. First, although Wal-Mart Stores Texas, L.P.'s name appears in the heading of the Defendant's January 2, 2008 Answer in Texas state court, it is clear that this was merely a typographical error since the Answer's caption lists, and only lists, Wal-Mart Stores, Inc. as the Defendant in the case. Furthermore, no Default Judgment entered against Wal-Mart Stores, Inc. exists in the state court's record, or any other evidence that could possibly substantiate Richey's claim that WalMart did not timely answer her petition in state court. Furthermore, the Notice of Removal in the record before the federal district court bears the name "Wal-Mart Stores, Inc." No other entity is named. Richey cannot cite to a single document in the record that establishes that Wal-Mart Stores Texas, L.P. has, at any point in time in this case's procedural history, been a named party. The only evidence in the record that supports Richey's claim that "Wal-Mart Stores, Inc." is not the only defendant in this action is her own First Amended Complaint that added Wal-Mart Stores Texas L.L.C. on May 22, 2008. As discussed above, subsequently added defendants cannot divest the district court of the original jurisdiction it had at the time of removal.

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No. 10-20158 I n considering whether the requisite amount in controversy has been met, "[i]t has long been recognized that unless the law gives a different rule, the sum c la im e d by the plaintiff controls if the claim is apparently made in good faith." Greenberg, 134 F.3d at 1253 (internal quotation marks omitted). " T o j u s t i f y d is m is s a l, it must appear to a legal certainty that the claim is really for less than t h e jurisdictional amount." Id. (internal quotation marks omitted). R ic h e y 's complaint, however, does not list a specific amount that she seeks t o recover. Thus, we note that Greenberg's "legal certainty" test does not apply h e r e . See De Aguilar v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir. 1995) ("This c o u r t has indicated that the legal certainty test does not apply in a remand s it u a t ion where the plaintiff has alleged an indeterminate amount of damages."). "Accordingly, we hold that if a defendant can show that the amount in c o n t r o v e r s y actually exceeds the jurisdictional amount, the plaintiff must be able t o show that, as a matter of law, it is certain that [s]he will not be able to recover m o r e than the damages for which [s]he has prayed in the state court complaint." Id. at 1411. In the present case, Wal-Mart has presented the district court with s u b s t a n t ia l evidence to support its claim that the amount in controversy exceeds $ 7 5 ,0 0 0 . Although Richey vigorously disputes the district court's conclusion that t h e requisite amount is satisfied, she has not provided evidence to refute that c o n c lu s io n . The evidence in the record shows that Richey's hourly wage was $ 1 2 .5 4 . Thus, Richey could reasonably expect to earn $26,083.20 annually. Notably, Richey's First Amended Complaint requests actual damages of lost w a g e s and benefits, loss of future earnings and benefits in the past, mental a n g u is h in the past and future, prejudgment interest, court costs, and exemplary d a m a g e s . Even if Richey sought future lost wages for only three years, that a m o u n t alone would exceed $75,000­ and that calculation does not take into

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No. 10-20158 c o n s id e r a t io n the amounts she seeks to recover for her actual lost wages and b e n e fits , or her mental anguish in the past and future. Given these calculations, we find no clear error in the district court's r e a s o n in g . The facts in the record are sufficient to invest the district court with ju r is d ic t io n . Accordingly, we conclude that § 1332(a)'s amount in controversy r e q u ir e m e n t has been met, and as a result, we find that the district court was c o r r e c t to deny Richey's motion to remand. CONCLUSION F o r the aforementioned reasons, we AFFIRM the judgment of the district c o u r t.

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