Sweeny v. Petco Animal Supplies, Inc. et al

Filing 9

ORDER AND REASONS denying 5 Motion to Remand to State Court. Signed by Judge A. J. McNamara on 11/19/2009. (caa, )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KATHY SWEENY VERSUS PETCO ANIMAL SUPPLIES, INC., ET AL * * * CIVIL ACTION NO: 09-6763 SECTION: "D"(4)

ORDER AND REASONS Before the court is the "Motion for Remand" (Doc. No. 5) filed by Plaintiff, Katy Sweeny. Defendant, Petco Animal Supplies The motion, set

Stores, Inc., filed a memorandum in opposition.

for hearing on Wednesday, November 18, 2009, is before the court on briefs, without oral argument. Now, having considered the

memoranda of counsel, the record, and the applicable law, the court court finds that the motion should be denied. Plaintiff argues that this matter should be remanded because Defendant has failed to show that the amount in controversy exceeded $75,000 at the time of removal. The court rejects this

argument because the requisite amount in controversy is "facially apparent" from Plaintiff's allegations set forth in her Petition. Plaintiff alleges that as a result of her alleged trip and fall on

Defendant's

parking

lot,

she

sustained

"serious

injuries

and

damages" and "severe and painful personal injuries." ¶II and ¶IV).

(Petition at

Plaintiff seeks "past, present, and future physical

and mental pain and suffering and disability;" "medical expenses, past and future;" scarring and loss of function;" and "lost wages and loss of earning capacity." (Petition at ¶VI). Plaintiff also

failed to state in the prayer of her Petition that her damages did not exceed $75,000, an allegation that is required by Louisiana Code of Civil Procedure Article 893(A)(1) if Plaintiff is to establish "lack of jurisdiction of federal courts due to

sufficiency of damages."

La. Code of Civ. Proc. Art. 893(A)(1).

Finally, prior to removal, Defendant possessed Plaintiff's recorded statement (taken on November 21, 2008)1 which details the alleged severity of her injuries, the surgery she had as a result of her alleged injuries, and medical expenses. Statement attached to Defendants' Opp. (See Plaintiff's as Ex. A).

Memo.

Accordingly; IT IS ORDERED that Plaintiff's "Motion for Remand" (Doc. No. 5) be and is hereby DENIED.

The court notes that Plaintiff states in her Petition (filed in September 2009) that her alleged accident occurred on October 1, 2009. The court assumes that 2009 is a typographical error, and should be 2008.

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New Orleans, Louisiana, this 19th day of November, 2009.

______________________________ A.J. McNAMARA UNITED STATES DISTRICT JUDGE

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