Crane v. Petco Animal Supplies Stores, Inc. et al
ORDER AND REASONS denying 4 Motion to Dismiss for Failure to State a Claim; denying 11 Motion to Remand to State Court; granting 17 Motion for Leave to File the Amended Complaint. FURTHER ORDERED that the plaintiff shall file the amended complaint into the record within 10 days from the date of this Order and Reasons. Signed by Judge Martin L.C. Feldman on 6/28/2017. (clc)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PETCO ANIMAL SUPPLIES
STORES, INC., ET AL.
ORDER AND REASONS
Before the Court are three motions: (1) Plaintiff’s motion to
amend the complaint, (2) Plaintiff’s motion to remand, and (3)
Defendants’ motion to dismiss. For the following reasons, the
motion to remand is DENIED with prejudice, the motion to amend the
complaint is GRANTED, and the motion to dismiss is DENIED without
This lawsuit arises out of an alleged slip and fall at a
Petco Animal Supply Store in New Orleans.
Cecily Crane alleges that on September 18, 2015 “she slipped
and fell on water on the floor coming from a leaking Fresh Smart
Cooler.” As a result, Crane alleges she has suffered mental and
physical pain and suffering, including neck pain, thoracic pain,
low back pain, left hip pain, headaches, physical and mental
anguish, past, present and future medical expenses, and loss of
past, present, and future earning capacity.
negligence, reckless disregard, and wanton conduct of Petco in its
failure to: maintain order and cleanliness, act with the required
degree of care commensurate with the existing conditions, and post
warnings of caution of water on the floor or hazardous condition.
She further alleges that “[o]ne of the corresponding or proximate
causes of this accident [is] by FreshPet, Inc.” due to its “failure
to maintain it[s] vendor cooler so that leaking water would not
insurers in state court. In state court, the plaintiff was granted
a specific time period to seek leave to amend her petition; the
plaintiff failed to do so within the time allotted. The defendants
controversy exceeded $75,000. In response, the plaintiff filed an
amended petition in state court, without the court’s leave, which
included a stipulation that her damages were less than $75,000.
After removing the case to this Court, the defendants filed
a Rule 12(b)(6) motion to dismiss. The plaintiff then filed a
motion to remand and a motion to amend the complaint. The Court
first considers the motion to remand.
I. Motion to Remand
Although the plaintiff challenges removal in this case, the
removing defendant carries the burden of showing the propriety of
this Court’s removal jurisdiction. See Jernigan v. Ashland Oil,
Inc., 989 F.2d 812, 815 (5th Cir.), cert. denied, 510 U.S. 868
(1993); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.
1988). “Because removal raises significant federalism concerns,
the removal statute is strictly construed.” Gutierrez v. Flores,
543 F.3d 248, 251 (5th Cir. 2008). Further, “any doubt as to the
propriety of removal should be resolved in favor of remand.” Id.
A defendant may generally remove a civil action filed in state
court if the federal court has original jurisdiction over the case
– that is, if the plaintiff could have brought the action in
federal court from the outset. See 28 U.S.C. § 1441(a). To exercise
diversity jurisdiction, complete diversity must exist between the
plaintiff and all of the properly joined defendants, and the amount
in controversy must exceed $75,000. See 28 U.S.C. § 1332(a)(1).
controversy requirement is met.
To determine whether it has jurisdiction, the Court must
consider the allegations in the state court petition as they
existed at the time of removal. See Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Cavallini
v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir.
specific amount of damages” in her prayer for relief. LA. CODE CIV.
PROC. ART. 893.
When the plaintiff has, therefore, alleged an intermediate
amount of damages, the removing party must prove by a preponderance
of the evidence that the amount in controversy exceeds $75,000.
Simon v. Wal-Mart Stores, 193 F.3d 848, 850 (5th Cir. 1999); see
also De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
This showing may be made by either (1) showing that it is facially
apparent that the plaintiff’s claims likely exceed $75,000 or (2)
controversy that support a finding of the jurisdictional amount.
Manguno, 276 F.3d at 723; Luckett v. Delta Airlines, Inc., 171
F.3d 295, 298 (5th Cir. 1999). “[I]f it is facially apparent from
the petition that the amount in controversy exceeds $75,000 at the
amendments reducing the amount do not deprive the district court
of jurisdiction.” Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880,
883 (5th Cir. 2000). If the removing defendant cannot show that
the amount in controversy is facially apparent, it may be able to
prove “by setting forth the facts in controversy – preferably in
the removal petition, sometimes by affidavit – that support a
finding of the requisite amount.” Luckett, 171 F.3d at 298.
If the removing party satisfies its burden, the plaintiff can
only defeat removal by showing that it is “legally certain that
his recovery will not exceed the amount stated in the state
complaint.” De Aguilar, 47 F.3d at 1412; see St. Paul Mercury
Indemn. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938) (“It must
appear to a legal certainty that the claim is really for less than
statute that restricts recovery, “[l]itigants who want to prevent
removal must file a binding stipulation or affidavit with their
complaints; once a defendant has removed the case, St. Paul makes
later filings irrelevant.” De Aguilar, 47 F.3d at 1412 (quoting In
re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curium)).
In support of the plaintiff’s contention that the amount in
controversy requirement is not met, the plaintiff argues that a
sworn stipulation attached to the amended petition, which was
unsuccessfully filed in state court, satisfies her burden. In this
stipulation the plaintiff, after testifying in her deposition that
her damages “might” exceed $75,000 if she needed surgery, then
submitted a sworn stipulation stating that her damages were less
In response, the defendants point out, first, that this sworn
statement was never successfully admitted into the state court
record because the plaintiff failed to seek leave from the court
to file the amended petition. See Campbell v. Wright Adams Realty
Co., 220 So. 2d 755, 757 (La. Ct. App. 1 Cir. 1969) (“It has been
rightly held that an amended petition filed without leave of court
when such permission is required, may not be considered. ... [A]n
amended petition so filed is totally without effect and is deemed
not have been filed at all.”). The defendants also submit that at
the time of its notice of removal it believed that damages exceeded
$75,000 based on what was in evidence – the plaintiff’s deposition
testimony wherein she stated that her damages might exceed $75,000
if she needed surgery and also stated that her loss of wages claim
would exceed the $75,000 threshold. 1 Therefore, the defendants urge
plaintiff’s damages exceeded $75,000, then removal is appropriate
and the Court should deny the motion to remand. The Court agrees.
This Court, in Bannister v. ACE American Insurance Company,
urged that when a stipulation “falls short of affirmatively waiving
[the] right to collect damages greater than $75,000,” then the
stipulation is not sufficient for the plaintiff to carry its burden
“when it is facially apparent that her claims exceed $75,000.” No.
16-2830, 2016 WL 2347861, at *2, n.2 (E.D. La. May 4, 2016) (citing
The defendants submit that in the plaintiff’s deposition, she
testified that because of her accident she had to turn down a job
that paid $50 per hour. Based on the calculation of lost wages
from the date of the accident to the time of the defendants’
filing, the defendants estimated these damages were over $100,000
solely for that category of damages plaintiff seeks.
Gebbia, 233 F.3d at 883). Here, not only is there no stipulation
successfully submitted into the record, but the plaintiff also
fails to “affirmatively waiv[e] her right to collect damages
greater than $75,000.” 2 Id. Considering the categories of damages
alleged in her state court petition are substantial both in nature
attempted at a post-removal stipulation regarding the amount-incontroversy is nothing more than a calculated attempt to deprive
this Court of its original jurisdiction. The Court again agrees.
It is facially apparent from the plaintiff’s state court
petition and from her deposition testimony that she was seeking
monetary damages in excess of $75,000 at the time the case was
removed. She alleges that she suffers past, current, and future
medical expenses and loss of wages, in addition to all sorts of
other damages for pain and suffering. Although generic, they are
serious damage allegations that make it facially apparent that her
claims exceed $75,000. The defendants also submit that at the time
of removal, the plaintiff was not certain whether surgery would be
The plaintiff merely states, in her unsuccessfully submitted
amended petition: “Plaintiff now stipulates that the value of her
case is under $75,000, which will remove this matter from Federal
Jurisdiction.” This attempt falls short of affirmatively waiving
her right to collect damages greater than $75,000. See Bannister
v. ACE American Insurance Company, No. 16-2830, 2016 WL 2347861,
at *2, n.2 (E.D. La. May 4, 2016) (citing Gebbia v. Wal-Mart
Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)).
recommendations; it is of no bearing on the removal issue that the
plaintiff ultimately did not need surgery, because the belief at
determination. Finally, the plaintiff has not shown “to a legal
certainty” that her recovery will fall at $75,000 or below.
Accordingly, because more than $75,000 was in controversy at
the time of removal, the Court retains jurisdiction over this case
and denies the motion to remand. The Court is compelled to observe
a comic irony. Obviously, if, as she urges, her case is worth less
than $75,000, she’ll take less if offered. And so the plaintiff
apparently wants less, but the defendant hopes to pay more! Counsel
should be alert to 28 U.S.C. § 1927.
II. Motion to Amend Complaint
Federal Rules of Civil Procedure Rule 15(a), which governs
the amendment of pleadings, provides that leave to amend pleadings
“shall be feely given when justice so requires.” FED. R. CIV. P.
15(a)(2). This, and other federal rules, “reject the approach that
pleading is a game of skill in which one misstep by counsel may be
decisive to the outcome and accept the principle that the purpose
of pleading is to facilitate a proper decision on the merits.”
Conley v. Gibson, 355 U.S. 41, 48 (1957). Thus, Rule 15(a) evinces
a liberal amendment policy and a motion to amend should not be
denied absent a substantial reason to do so. See Jacobsen v.
Osborne, 133 F.3d 315, 318 (5th Cir. 1998). Furthermore, “this
‘policy’ is strongest when the motion challenged is the first
motion to amend.” Thompson v. New York Life Ins. Co., 644 F.2d
439, 444 (5th Cir. 1981). Permission may be granted even though
the original pleading is defective in its statement of a claim for
relief or defense. Id.
Leave to amend is by no means automatic, but is within the
sound discretion of the trial court. Addington v. Farmer’s Elevator
Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). In exercising
its discretion, the trial court must determine that there is a
“substantial reason” for the delay. Mayeaux v. La. Health Serv.
And Indemn. Co., 376 F.3d 420, 425 (5th Cir. 2004). The Court may
consider such factors as (1) undue delay, bad faith, or dilatory
motive on the part of the movant; (2) repeated failure to cure
deficiencies by amendments previously allowed; (3) undue prejudice
to the opposing party by virtue of allowance of the amendment; and
(4) futility of the amendment. Gregory v. Mitchell, 634 F.2d 199,
203 (5th Cir. 1981).
i. Undue Delay, Bad Faith, Dilatory Motive of Movant
The first factor the Court considers when determining whether
or not to grant leave to amend pursuant to Rule 15(a) is whether
the amendment will cause an undue delay, is in bad faith, or that
the movant has some dilatory motive in filing the motion.
The Fifth Circuit has instructed that “[a] litigant’s failure
to assert a claim as soon as he could have is properly a factor to
be considered in deciding whether to grant leave to amend. Merely
because a claim was not presented as promptly as possible, however,
does not vest the district court with authority to punish the
litigant.” Carson v. Polley, 698 F.2d 562, 584 (5th Cir. 1982)
(finding that a delay of four months between time pro se attorneys
were assigned to case and time second amended complaint was filed
did not warrant denial of motion to amend).
On the other hand, the bare fact that an amendment is filed
within the confines of the Court’s scheduling order does not alone
make a claim timely. See Mayeaux, 376 F.3d at 427. Instead, the
determine whether the delay actually prejudices the nonmovant. See
id. at 426-27 (“The delay must be undue, i.e., it must prejudice
the nonmoving party or impose unwarranted burdens on the court.”)
(emphasis in original). The Fifth Circuit has held that when leave
to amend would cause severe prejudice to defendants, it should be
denied. Id. at 427; Smith v. EMC Corp., 393 F.3d 590, 595-97 (5th
At the time of the plaintiff’s filing of the present motion,
no deadlines have been set. This Court has held that when no
deadlines have been set, undue delay or bad faith is unlikely.
LaRocca v. LaRocca, No. 13-4748, 2013 WL 6440334, at *3 (E.D. La.
No. 13-4748). There is a factual distinction between the issue
currently before the Court and that in LaRocca –- here, the
petition in state court; the plaintiff blatantly failed to heed
the parties’ agreed upon deadline and the court-imposed deadline.
It was not until the defendants filed the notice of removal in
this Court that the plaintiff tried, albeit unsuccessfully, to
file her amended petition in state court. Even with that factual
difference, however, there can be no prejudice or undue delay
because no substantive proceedings have occurred in either state
behavior on behalf of plaintiff’s counsel runs the risk of equating
with bad faith. Given the stage of proceedings, the Court still
finds that this factor weighs in favor of permitting leave to
amend. See id.
ii. Repeated Failure to Cure Deficiencies by Amendments
whether or not to grant leave to amend pursuant to Rule 15(a) is
whether the party has previously filed repeated amendments before
filing the instant motion.
This Circuit has found that where a party has been given
multiple opportunities to cure a defect, denial of a Rule 15(a)
motion is proper. See e.g., Price v. Pinnacle Brands, Inc., 138
F.3d 602, 607-08 (5th Cir. 1998) (upholding district court’s denial
of Rule 15(a) motion where plaintiffs had three prior opportunities
to amend the complaint).
Though this is the plaintiff’s first motion to amend the
complaint in this Court, as discussed, the plaintiff failed to
heed many opportunities over a months-long period of time in state
court. When the plaintiff did in fact attempt to amend her petition
in state court, she failed to seek leave of the court, as the state
court required. While there was only one failure to amend, the
plaintiff has “repeatedly failed” to amend her complaint within
time frames established jointly by the parties and established by
the state court. Therefore, this factor weighs in favor of denying
the proposed amendments. See LaRocca, 2013 WL 6440334, at *3.
iii. Undue Prejudice to the Opposing Party by Virtue of
Allowance of the Amendment
The third factor the Court considers when determining whether
or not to grant leave to amend pursuant to Rule 15(a) is whether
the amendment will cause an undue prejudice to the opposing party.
The Fifth Circuit has cautioned that amendments should not be
permitted where they would “fundamentally alter the nature of the
case.” Hebert v. Specialized Envtl. Res., LLC, No. 12-0071, 2013
WL 1288219, at *4 (E.D. La. Mar. 27, 2013); In Re Am. Int’l
Refinery, Inc., 676 F.3d 455, 467 (5th Cir. 2012) (noting that new
“fundamentally altered” the nature of a case which has previously
been limited to the determination of whether one party possessed
a conflict of interest warranting disgorgement of money paid);
Mayeaux, 376 F.3d at 427-28 (finding that complaint would be
“fundamentally altered” where proposed amendment would destroy
jurisdiction and “effectively reconstruct[ed] the case anew”).
This Court has held that where a plaintiff is not asserting
complaint, undue prejudice to the defendants is unlikely. See
LaRocca, 2013 WL 6440334, at *4. Here, the plaintiff is attempting
to reassert the same theory of liability but under the statute
covering the claims alleged. Therefore, no new or additional claims
are asserted, just an attempt to clarify those already alleged.
Accordingly, the Court finds that this factor weighs in favor of
granting leave to amend the complaint.
iv. Futility of the Amendment
whether or not to grant leave to amend pursuant Rule 15(a) is
whether the amendment is futile. The defendants contend that
amendment is futile because the plaintiff offers nothing more than
a conclusory recitation of the statutory elements to state a claim
under the applicable statute. Because of the defendants’ motion to
dismiss, the Court is reluctant to weigh in on the “futility” of
the proposed amendment. The Court accepts that the plaintiff
attempts to now bring a claim allowed under statutory law against
a merchant. As such, without commenting on the merits of the
plaintiff’s amendment, the Court finds that this factor weighs in
appropriate claim under state law.
In sum, the majority of the factors considered weigh in favor
of granting the plaintiff leave to amend the complaint. 3
III. Defendant’s Motion to Dismiss
Because the Court is allowing plaintiff leave to amend her
complaint, the Court will refrain from addressing the defendants’
pending motion to dismiss, to allow for the defendants to address
the new complaint against them.
Accordingly, IT IS ORDERED that the plaintiff’s motion to
remand is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion to amend
the complaint is GRANTED. IT IS FURTHER ORDERED that the plaintiff
In allowing this amendment, however, the Court again brings 28
U.S.C. § 1927 to counsel’s attention. Because significant
litigation has not yet ensued, prejudice is unlikely, but the Court
recognizes that plaintiff’s counsel’s behavior runs the risk of
progressing to a degree of bad faith.
shall file the amended complaint into the record within 10 days
from the date of this Order and Reasons.
IT IS FURTHER ORDERED that the defendants’ motion to dismiss
is denied without prejudice. 4
New Orleans, Louisiana, June 28, 2017
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
And so, the stage is set: does the plaintiff want less than
$75,000 (which she so persistently contended), or does the defense
wish to pay her more than $75,000? Only a test of plaintiff’s
credibility will provide the answer.
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