Willis v. Dolgencorp L L C et al

Filing 16

RULING ON MOTION TO REMAND re 6 MOTION to Remand filed by Alberta Willis. Motion to Remand is DENIED. Signed by Magistrate Judge C Michael Hill on 2/21/2013. (crt,Davenport, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
ALBERTA WILLIS

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CIVIL ACTION NO. 12-2603

VS.

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JUDGE DOHERTY

DOLGENCORP L.L.C.
ET AL

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MAGISTRATE JUDGE HILL

RULING ON MOTION TO REMAND
Pending before the undersigned is the Motion to Remand filed by plaintiff, Alberta
Willis (“Willis”), on November 6, 2012. [rec. doc. 6]. Defendant, Dolgencorp, LLC
(“Dolgencorp”), filed opposition on January 9, 2013. [rec. doc. 14]. Oral argument was held
on February 20, 2013.
For the following reasons, the motion is DENIED.
Background
On August 21, 2012, Willis, a Louisiana resident, filed suit for personal injuries against
Dolgencorp in the 15th Judicial District Court for the Parish of Lafayette, State of Louisiana.
Dolgencorp is a foreign corporation incorporated in the State of Tennessee whose principal
place of business is in Tennessee.
Willis alleged that on August 21, 2011, she tripped and fell on the door mat while
leaving the Dollar General store located at 1225 Carmel Drive in Lafayette, Louisiana. She
asserted that as a result of the accident, she suffered injuries to her leg, head, neck, discs,
ligaments, spine, back, and whole body. [rec. doc. 14, p. 2].

Additionally, plaintiff alleged she was entitled to damages for physical injuries; past,
present, and future physical pain and/or suffering; past, present, and future mental pain and
anguish; past, present, and future medical expenses; past, present, and future loss of income
and/or earning capacity; loss of enjoyment of life and/or mental anguish, and/or other damages
to be proven at trial. [rec. doc. 14, p. 2].
On September 11, 2012, counsel for Dolgencorp sent correspondence to Willis’ counsel
requesting that Willis execute a stipulation limiting her damages to less than $75,000.00. [rec.
doc. 14-1, p. 5]. Plaintiff refused to sign the stipulation. Accordingly, on September 28, 2012,
Dolgencorp removed the action to this Court.
On November 6, 2012, Willis filed a Motion to Remand on the grounds the amount in
controversy requirement set forth in 28 U.S.C. § 1332 had not been satisfied. [rec. doc. 6]. In
its Opposition, Dolgencorp alleged that removal was proper because "it is facially apparent
from the allegations of Plaintiff's Petition for Damages that the amount in controversy exceeds
the requisite jurisdictional amount." [rec. doc. 14, p. 4].
Analysis
Removal to this Court was pursuant to 28 U.S.C. § 1441(a), which allows for removal
of any civil action over which a United States district court has jurisdiction. Dolgencorp
asserted that this Court has jurisdiction pursuant to 28 U.S.C. § 1332, providing that federal
district courts have original jurisdiction of all civil actions where the amount in controversy
exceeds the sum of $75,000, exclusive of interest and costs, and is between citizens of

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different states. Since the parties do not dispute that diversity of citizenship exists, the sole
question before the Court is whether the amount in controversy requirement has been met.
The burden of establishing subject matter jurisdiction in federal court rests on the party
seeking to invoke it. St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th
Cir. 1998). Louisiana prohibits plaintiffs from petitioning for a specific monetary amount. See
La.Code Civ. P. art. 893(A)(1). Therefore, where, as here, the petition does not include a
specific monetary demand, Dolgencorp must establish by a preponderance of the evidence that
the amount in controversy exceeds $75,000. Manguno v. Prudential Property and Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing De Aguilar v. Boeing Co., 47 F.3d 1404, 1412
(5th Cir. 1995)).
This requirement is met if: (1) it is apparent from the face of the petition that the claims
are likely to exceed $75,000, or, alternatively, (2) the defendant sets forth “summary judgment
type evidence” of facts in controversy that support a finding of the requisite amount. See Simon
v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir.1999).
Here, Willis alleged in the Petition that as a result of the accident, she suffered injuries
to her leg, head, neck, discs, ligaments, spine, back, and whole body. Additionally, plaintiff
asserted damages for past, present, and future physical pain and/or suffering; past, present, and
future mental pain and anguish; past, present, and future medical expenses; past, present, and
future loss of income and/or earning capacity; loss of enjoyment of life and/or mental anguish,
and/or other damages. Dolgencorp has cited cases in which damages exceeding $75,000 were

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awarded to plaintiffs alleging similar injuries. Martin v. ERMC, II, 2009-491 (La. App. 3 Cir.
11/4/2009); 23 So.3d 1008 (upholding general damages award of $103,000 for cervical and
lumbar strain, possible spinal pathology, associated headaches, possible median neuropathy,
right forearm contusion and upper back spasms); Rehm v. Morgan, 04-344 (La. App. 5 Cir.
10/26/04); 885 So.2d 687 (stating that a bulging disc in the lumbar area of the spine is worth an
award of $50,000 in general damages and that the minimum amount that should be awarded for
a herniated disc, regardless of the area of the spine, is worth a minimum of $100,000).
Additionally, counsel for the plaintiff conceded that he refused to sign the offered stipulation
that the damages in the case did not exceed the $75,000 jurisdictional amount.
Louisiana Code of Civil Procedure Article 893(A)(1) provides, in pertinent part, as
follows:
No specific monetary amount of damages shall be included in the allegations or
prayer for relief of any original, amended, or incidental demand. The prayer for
relief shall be for such damages as are reasonable in the premises except that if a
specific amount of damages is necessary to establish the jurisdiction of the court,
the right to a jury trial, the lack of jurisdiction of federal courts due to
insufficiency of damages, or for other purposes, a general allegation that the
claim exceeds or is less than the requisite amount is required.
(emphasis added).
In this case, Willis’ petition is silent on the damages sought. Thus, plaintiff has, in
effect, conceded in her state court pleadings that the requisite jurisdictional amount is in
controversy. Carrier v. Veolia Water North America Operating Services, L.L.C., 2007 WL
2350258, *1 (W.D. La. July 6, 2007). This creates a “strong presumption” in favor of federal

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jurisdiction. Id. (citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 290, 58
S.Ct. 586, 591, 82 L.Ed. 845 (1938).
Thus, I find that it is facially apparent from the complaint that the amount in
controversy is likely to exceed $75,000.
Once defendant has proven that the value of the claim is likely to exceed $75,000, the
the case should be remanded only if plaintiff can prove to a legal certainty that her recovery
will fall below $75,000. Manguno, 276 F.3d at 724. Willis may establish this by identifying a
statute, or by filing a binding stipulation, that so limits her recovery. Id.
Here, Dolgencorp has met its burden of showing that the amount in controversy existed
at the time of removal. Willis failed to execute a stipulation limiting her damages to less than
the jurisdictional amount or identified a statute that so limits her recovery. Thus, Willis failed
to demonstrate to a legal certainty that the amount in controversy did not exceed the
jurisdictional amount at the time of removal.
Conclusion
For the foregoing reasons, the Motion to Remand is DENIED.
February 21, 2013, Lafayette, Louisiana.

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