Steib v. Wal-Mart Stores, Inc.
Filing
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ORDER REMANDING CASE TO STATE COURT. Signed by Judge Helen G. Berrigan on 11/25/13. (Attachments: # 1 Remand Letter)(plh, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ANGELINA STEIB
VERSUS
CIVIL ACTION
WAL‐MART STORES, INC., ETC., ET AL
SECTION ʺCʺ (3)
NO. 13‐5946
ORDER
This removed matter comes before the Court on the issue whether the
jurisdictional amount existed at the time of removal. Having reviewed the record, the
memoranda of counsel and the law, the Court has determined that remand is
appropriate for the following reasons.
The plaintiff filed suit in state court on July 1, 2013, alleging personal injuries
sustained in a slip and fall on July 14, 2012. This matter was removed on the basis of
diversity jurisdiction.
With regard to the existence of the jurisdictional minimum, the parties may
neither consent to nor waive federal subject matter jurisdiction. Simon v. Wal‐Mart
Stores, Inc., 193 F.3d 848 (5th Cir. 1999). Bare assertions by the removing party are
insufficient to invest a federal court of jurisdiction. Asociacion Nacional De Pescadores A
Pequena Escala O Artesanales De Colombis (ANPAC) v. Dow Quimica De Colombia, S.A., 988
F.2d 559 (5th Cir. 1993), cert. denied, 114 S.Ct. 685 (1994). Instead, the Fifth Circuit
advises the district courts that they should review their subject matter jurisdiction in
cases such as this. Id.; Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999). In order
to remain in federal court, the removing parties must prove by a preponderance of the
evidence that the jurisdictional minimum exists. Id. This showing may be made by
either: (1) demonstrating that it is facially apparent that the claims are likely above the
jurisdictional minimum; or (2) setting forth the facts in controversy that support a
finding of the jurisdictional minimum. Id. It is the recognized burden of the party
invoking jurisdiction ʺboth to allege with sufficient particularity the facts creating
jurisdiction, in view of the nature of the right asserted, and, if appropriately challenged,
or if inquiry be made by the court of its own motion, to support the allegation.ʺ St. Paul
Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 287, fn. 10 (1938), (citing McNutt v.
General Motors Corp., 298 U.S. 178, 182‐189 (1936); Diefenthal v. Civil Aeronautics Board,
681 F.2d 1039 (5th Cir. 1982), cert. denied, 459 U.S. 1107 (1983).
The defendant has not met its burden to show that the jurisdictional amount is
facially apparent for present purposes, nor has it made a showing sufficiently
particularized to meet that burden. The defendant relies heavily on the plaintiffʹs
settlement demand in the amount of $156,746.22 and the plaintiffʹs refusal to sign a
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stipulation that damages in excess of $75,000 will not be enforced. The plaintiff
provides evidence that the plaintiffʹs August 2012 MRI revealed mild facet arthrosis
with no evidence of disc bulge or herniation and no canal or foraminal stenosis. She
was diagnosed with lumbosacral radiculitis and underwent two epidural steroid
injections in November 2012, and has incurred approximately $6,746.22 in medical
expenses. Rec. Doc. 6. According to the plaintiff, another injection was ʺapparentlyʺ
recommended in October 2013, and no surgery has been recommended. Rec. Doc. 7 at
2. The plaintiff cites two cases, Sepulvado v. Turner, 862 So.2d 457 (La. App. 2nd Cir.
2003); Myers v. Broussard, 696 So.2d 88 (La. App. 3rd Cir. 1997), recognizing awards for
general damages in $250,000 and $300,000, respectively. Rec. Doc. 7 at 3. The Courtʹs
reading of those cases reveals significant additional damages and medical procedures
not presented here, where there is no evidence of other medical conditions requiring
past and future treatment or permanent disability. Instead, it would appear that
comparison to awards of general damages in the $2,500 to $30,000 range for similar
injuries treated by injections is appropriate. See, e.g., Miller v. Clout, 857 So.2d 458 (La.
2003)($2,500); Armentor v. Safeway Insurance Co., 972 So.2d 444 (La. App. 3rd Cir.
2007)($30,000); Billiot v. K‐Mart Corp., 764 So.2d 329 (La. App. 1st Cir. 2000)($5,000);
Hammons v. City of Tallulah, 705 So.2d 276 (La. App. 1998)($12,500). The fact that the
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plaintiffʹs offer of settlement exceeded the jurisdictional minimum can not be
determinative in the absence of medical documentation of disability or other factual
support; otherwise, subject matter jurisdiction could be effectively conferred by consent.
Based on the record and the law, the Court finds that the defendant has not
established subject matter jurisdiction. In addition, the Court is mindful that removal
jurisdiction is strictly construed. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100
(1941); Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986); Butler v. Polk, 592 F.2d 1293 (5th
Cir. 1979); C. Wright, A. Miller & E. Cooper, 14B Federal Practice & Procedure: Civil,
§3721. When subject matter jurisdiction is doubtful, remand is appropriate. C. Wright,
A. Miller & E. Cooper, 14C Federal Practice & Procedure: Civil, §3739.
Accordingly,
IT IS ORDERED that this matter is REMANDED to the 29th Judicial District Court
for the Parish of St. Charles, State of Louisiana, for lack of jurisdiction under 28 U.S.C. §
1447(c).
New Orleans, Louisiana, this 25th day of November, 2013.
____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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