Gilbert v. Kroger Texas LP

Filing 10

MEMORANDUM OPINION & ORDER: The 4 Motion to Remand is DENIED. Further, if Plaintiff does not correct the signature omission by 7/15/2016, her First Amended Complaint will be STRICKEN. (Ordered by Chief Judge Barbara M.G. Lynn on 7/1/2016) (ran)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
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CASSI GILBERT,
Plaintiff,
v.
KROGER TEXAS, L.P.,
Defendant.

No. 3:16-CV-00869-M

MEMORANDUM OPINION & ORDER
Before the Court is Plaintiff’s First Amended Complaint and Motion for Remand [Docket
Entry #4]. Defendant filed a Response to the Motion to Remand on May 19, 2016 [Docket Entry
#6]. Plaintiff has not filed a Reply. For the reasons stated below, the Motion to Remand is
DENIED.
I.

BACKGROUND

Plaintiff filed her Original Petition, alleging claims for negligence and premises liability,
in the 162nd District Court of Dallas County on February 12, 2016, and served Defendant on
February 29, 2016. Defendant removed the case on the basis of diversity jurisdiction on March
29, 2016. The Original Petition stated that the action sought monetary relief in excess of $100,000.
Original Pet. ¶ 4. In her First Amended Complaint and Motion for Remand, Plaintiff says she
seeks damages not to exceed $74,999.99, and that remand is appropriate because the amount in
controversy is thus less than $75,000 [Docket Entry #4 at ¶¶ 1, 6].
II.

ANALYSIS

District courts generally may hear a case only if it involves a question of federal law or if
complete diversity of citizenship exists between the parties and the amount in controversy
exceeds $75,000. See 28 U.S.C. §§ 1331, 1332. Here, the sole basis for federal jurisdiction is
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diversity.
Plaintiff alleges diversity jurisdiction no longer exists, because she purported to limit her
recovery to less than $75,000 in her First Amended Complaint. It is well established that
jurisdiction is determined as of the moment of removal. Jones v. Compass Bancshares Inc., 339
F. App’x 410, 411 (5th Cir. 2009); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir.
1995). If the plaintiff’s petition, “filed in state court, demands monetary relief of a stated sum,
that sum, if asserted in good faith, is ‘deemed to be the amount in controversy.’” Dart Cherokee
Basin Operating Co., LLC v. Owens, ___ U.S. ___, 135 S. Ct. 547, 551 (2014) (quoting 28
U.S.C. § 1446(c)(2)). Therefore, as the Fifth Circuit has made clear, “[a]n amendment to the
complaint limiting damages for jurisdictional purposes cannot divest [a court of] jurisdiction.”
Allen, 63 F.3d at 1336.
Plaintiff’s Original Petition, the operative pleading at the time of removal, stated that the
action sought monetary relief in excess of $100,000. Original Pet. ¶ 4. Plaintiff’s post-removal
attempt to limit her recovery is insufficient to divest this Court of jurisdiction. Jones, 339 F.
App’x at 411 (upholding denial of a motion to remand where, at the time of removal, Plaintiff’s
complaint sought $100,000, despite Plaintiff’s post-removal amended complaint alleging
damages below $75,000). Therefore, the Motion to Remand is DENIED.
Further, Plaintiff’s filing does not meet the requirements for a pleading. It is unsigned, in
violation of Federal Rule of Civil Procedure 11. Plaintiff has not corrected the signature
omission, although the Clerk of Court contacted Plaintiff regarding the error on April 29, 2016.
If Plaintiff does not correct the signature omission by July 15, 2016, the First Amended
Complaint will be stricken.

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III.

CONCLUSION

For these reasons, the Motion to Remand is DENIED. Further, if Plaintiff does not
correct the signature omission by July 15, 2016, her First Amended Complaint will be
STRICKEN.
SO ORDERED.
July 1, 2016.

_________________________________
BARBARA M. G. LYNN
CHIEF JUDGE

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