Harris v. Winn Dixie Store No. 1430 et al

Filing 15

ORDER & REASONS granting 7 Motion to Remand to State Court. Signed by Judge Carl Barbier. (Attachments: # 1 Remand Letter) (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

EBONY HARRIS

CIVIL ACTION

VERSUS

NO: 16-17697

WINN DIXIE STORE NO.
1430, ET AL.

SECTION: “J”(4)

ORDER & REASONS
Before the Court is Plaintiff Ebony Harris’ (“Plaintiff”)
Motion to Remand (R. Doc. 7), Defendant Winn Dixie Montgomery,
LLC’s

(“Winn

Dixie”)

opposition

thereto

(R.

Doc.

9),

and

Plaintiff’s reply (R. Doc. 14). Having considered the motion and
legal memoranda, the record, and the applicable law, the Court
finds that the motion should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff filed the instant suit in Orleans Parish Civil
District Court in New Orleans, Louisiana. (R. Doc. 1-4.) Made
defendants were Winn Dixie Store #1430 1 and ABC Insurance Company.
Id. at 2. Plaintiff alleges that she was injured when she slipped
and

fell

in

a

puddle

of

water

near

the

Winn

Dixie

store’s

registers. Id. Plaintiff claims damages for an injured right leg,
an injury to her back, and any other injuries that may manifest

1 Winn Dixie assert that the properly named Defendant in this matter is Winn
Dixie Montgomery, LLC. (R. Doc. 1 at 1.) Winn Dixie Montgomery, LLC also avers
that they are self-insured, thus making them the only Defendant to this matter.
Id. at 3.

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prior to trial. Id. at 3. Plaintiff seeks compensation for past
and future medical expenses, lost wages, and pain and suffering.
Id. On December 22, 2016, Winn Dixie removed this case to federal
court on the basis of diversity jurisdiction, claiming complete
diversity of citizenship and an amount in controversy greater than
$75,000. (R. Doc. 1 at 4.) On January 3, 2017, Plaintiff filed the
instant motion to remand claiming that Winn Dixie has failed to
prove by a preponderance of the evidence that the amount in
controversy exceeds $75,000. (R. Doc. 7.) In response, Winn Dixie
argues that Plaintiff has not affirmatively renounced the right to
accept a judgment in excess of $75,000, and thus the amount in
controversy must exceed $75,000. See (R. Doc. 9.) Plaintiff’s
Motion to Remand is now before the Court on the briefs and without
oral argument.
LEGAL STANDARD
A defendant may remove to federal court “any civil action
brought in a State court of which the district courts of the United
States have original jurisdiction.” 28 U.S.C. § 1441(a). “A federal
district court has subject matter jurisdiction over a state claim
when the amount in controversy is met and there is complete
diversity of citizenship between the parties.” Mumfrey v. CVS
Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing 28 U.S.C.
§ 1332(a)). The amount in controversy required by § 1332(a) is
currently an amount in excess of $75,000. Id. The Court considers
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the jurisdictional facts that support removal as of the time of
removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th
Cir.

2000).

Because

removal

raises

significant

federalism

concerns, any doubt about the propriety of removal must be resolved
in favor of remand. Gasch v. Hartford Acc. & Indem. Co., 491 F.3d
278, 281-82 (5th Cir. 2007).
When the petition is silent on the exact amount of claimed
damages, the removing party bears the burden of proving “by a
preponderance of the evidence that the amount in controversy
exceeds $75,000.” Grant v. Chevron Phillips Chem. Co., 309 F.3d
864, 868 (5th Cir. 2002) (citing Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). The removing
party can satisfy this burden either: “(1) by demonstrating that
it is ‘facially apparent’ from the petition that the claim likely
exceeds $75,000 or (2) by setting forth the facts in controversy—
preferably in the removal petition, but sometimes by affidavit—
that support a finding of the requisite amount.” Id. (quoting Allen
v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.1995)).
“Removal,

however,

cannot

be

based

simply

upon

conclusory

allegations.” Allen, 63 F.3d at 1335.
If the removing party can establish by a preponderance of the
evidence that the amount in controversy exceeds the requisite
amount, “[t]he plaintiff can defeat diversity jurisdiction only by
showing to a ‘legal certainty’ that the amount in controversy does
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not exceed $75,000.” Grant, 309 F.3d at 869 (citing De Aguilar v.
Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995)). It is well settled
that this is not a burden-shifting exercise; rather, the “plaintiff
must

make

all

information

known

at

the

time

he

files

the

complaint.” Id. (quoting De Aguilar, 47 F.3d at 1412).
DISCUSSION
The

parties

do

not

contest

that

their

citizenship

is

completely diverse. Rather, the only issue before the Court is
whether the amount in controversy exceeds $75,000. Plaintiff filed
her complaint in Louisiana state court, and generally, Louisiana
does not permit plaintiffs to plead a specific amount of money
damages. Hammel v. State Farm Fire & Cas. Co., No. 06-7470, 2007
WL 519280, at *1 (E.D. La. Feb. 14, 2007). Plaintiff merely alleges
unspecific injuries to her right leg and back, and she seeks
compensation

for

medical

expenses,

lost

wages,

and

pain

and

suffering. (R. Doc. 1-4 at 3.) Consequently, it is not facially
apparent from Plaintiff’s petition that the claim likely exceeds
$75,000. Thus, Winn Dixie must submit evidence and prove by a
preponderance of the evidence that the amount in controversy
exceeds $75,000. Grant, 309 F.3d at 868; De Aguilar, 47 F. 3d at
1412. Winn Dixie has not submitted any evidence that Plaintiff’s
damages may exceed $75,000. Winn Dixie’s Petition for Removal only
argues that the amount in controversy exceeds $75,000 because
Plaintiff has not agreed that it will remit or waive any judgment
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in excess of $75,000.
any

additional

contention.

See

(R. Doc. 1 at 3.) Winn Dixie did not submit

summary-judgment-type
Allen,

63

F.3d

at

evidence
1335-36

to

support

(noting

that

its
when

determining amount in controversy the court may consider the facts
in the removal petition and those set forth in an affidavit or
stipulation). Rather, Winn Dixie argues that because Plaintiff has
refused to remit or waive the excess of any judgment rendered in
state court above $75,000 that it has satisfied its burden of
proving that the amount in controversy exceeds $75,000. However,
a plaintiff must only affirmatively renounce the right to accept
a judgment in excess of $75,000 “for [her] pre-removal state court
pleadings and stipulations to bind [her]” to defeat removal after
the removing defendant proves by a preponderance of the evidence
that the amount in controversy exceeds $75,000. See Hammel, 2007
WL 519280, at *2 (noting that if the defendant meets its burden of
showing the requisite amount in controversy a plaintiff can defeat
removal by affirmatively renouncing the right to accept a judgment
in excess of $75,000). As explained, Winn Dixie has failed to
sustain

its

burden

of

proving

that

the

requisite

amount

in

controversy is in excess of $75,000. Accordingly, this matter must
be remanded to Orleans Parish Civil District Court in New Orleans,
Louisiana.

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CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (R.
Doc. 7) is GRANTED. This matter is hereby REMANDED to Orleans
Parish Civil District Court in New Orleans, Louisiana.
New Orleans, Louisiana this 8th day of February, 2017.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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