Mauer v. Wal-Mart Stores Inc et al

Filing 21

Memorandum Opinion and Order denying 12 Motion to Remand to State Court. (Ordered by Magistrate Judge David L Horan on 10/5/2016) (rekc)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ANGELA MAUER,
Plaintiff,
V.
WAL-MART STORES, INC., ET AL.,
Defendants.

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No. 3:16-cv-2085-BN

MEMORANDUM OPINION AND ORDER
Plaintiff Angela Mauer (“Mauer” or “Plaintiff”) has filed a Motion to Remand.
See Dkt. No. 12. For the reasons explained below, the Court determines that it has
subject-matter jurisdiction over this case and DENIES Plaintiff’s Motion to Remand
[Dkt. No. 12].
Background
Mauer filed this case against Defendants Wal-Mart Stores, Inc., Wal-Mart
Stores East, Inc., d/b/a Wal-Mart #1055, and Wal-Mart Real Est Business (collectively,
“Defendants”) in Dallas County state court on June 6, 2016. See Dkt. Nos. 2-2 & 2-3.
Defendants filed an answer on July 14, 2016, see Dkt. No. 2-6, and then removed
the case to this Court on July 19, 2016, see Dkt. No. 1.
After the parties consented to proceeded before the undersigned United States
magistrate judge pursuant to 28 U.S.C. § 636(c) and United States District Judge Jane
J. Boyle transferred the case on August 11, 2016, see Dkt. Nos. 7 & 8, the Court issued
the following Electronic Order on August 15, 2016:
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ELECTRONIC ORDER: Defendants' Notice of Removal 1 does not comply
with 28 U.S.C. § 1446’s requirements to include a short and plain
statement of the grounds for removal, including a statement of the basis
for the Court’s jurisdiction over this action. See Heinsohn v. Carabin &
Shaw, P.C., ___ F.3d ____, No. 15-50300, 2016 WL 4208185, at *3 (5th
Cir. July 26, 2016) (explaining that a notice of removal must contain a
short and plain statement describing the basis for subject matter
jurisdiction); see also Dart Cherokee Basin Operating Co., LLC v. Owens,
135 S. Ct. 547, 553-54 (2014); Charter Sch. of Pine Grove, Inc. v. St.
Helena Par. Sch. Bd., 417 F.3d 444, 447 (5th Cir. 2005). Defendants must
file a supplement to their Notice of Removal correcting these deficiencies
by August 29, 2016. (Ordered by Magistrate Judge David L. Horan on
8/15/2016.)
Dkt. No. 11.
Defendants’ Notice of Removal, as filed on July 19, 2016, stated only: “Please
take notice the civil action, in which you are the Plaintiff, brought on June 6, 2016, in
the 95th Judicial District of Dallas County, Texas, styled Angela Mauer v. Wal-Mart
Stores, Inc, et al., Cause No. DC-16-06799, has been removed from that court to the
United States District Court for the Northern District of Texas, Dallas Division,
effective today, July 19, 2016. On this day, the Notice of Removal, was filed with the
clerk of the United States District Court, and a copy of that Notice of Removal has been
filed with the Clerk of the state court, effecting removal pursuant to 28 U.S.C. § 1446.”
Dkt. No. 1 at 1. Defendants also filed an Appendix in Support of Defendant’s Notice of
Removal, see Dkt. No. 2, which included a copy of Plaintiff’s Original Petition filed in
state court, see Dkt. No. 2-3. In that petition, Plaintiff states that she “seeks damages
of more than $100,000.00 but less than $200,000.00.” Dkt. No. 2-3 at 2.
Mauer then filed her Motion to Remand on August 22, 2016. See Dkt. No. 12.
She contended that Defendants were served on July 6, 2016 and filed their Notice of
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Removal on July 19, 2016 and that “[t]he Court may remand a case on the basis of any
defect identified in a motion for remand filed within 30 days after the notice of removal
under 28 U.S.C. § 1447(a), 28 U.S.C. § 1447(c).” Id. at 1. Mauer asserts that “[t]he court
should remand this case to state court because the amount in the controversy is less
than $75,000.00, excluding interest, costs, and attorney fees,” where “[t]he amount in
the controversy as plead in Plaintiff’s First Amended Petition is only less than
$75,000.00.” Id. at 2. Mauer attached a copy of her First Amended Petition, which was
apparently filed in state court on August 17, 2016 and asserts that “Plaintiff seeks
damages of less than $75,000.00.” See Dkt. No. 12, Ex. A at 1-2.
Defendants filed their Supplemental Notice of Removal on August 29, 2016.
See Dkt. No. 14. Defendants explain that “Plaintiff commenced this lawsuit by filing
its Original Petition on June 6, 2016”; that “Defendant was served with the Original
Petition on or about July 6, 2016, through the registered agent for Defendant”; that
“Defendants filed their Notice of Removal on July 19, 2016”; and that “Defendants’
removal is timely because it is filed within thirty days after the Defendants were
served via their registered agents,” pursuant to 28 U.S.C. § 1446. Id. at 2.
Defendants allege that “[r]emoval is proper under 28 U.S.C. §§ 1441 and
1332(a)(1) because there is complete diversity of citizenship between all Plaintiffs and
Defendants, the amount in controversy exceeds $75,000, and no Defendant is a citizen
of the State of Texas,” where “Plaintiff’s original petition alleges she has suffered
damages in an amount between $100,000 and $200,000”; “Plaintiff is a resident of
Dallas County, Texas”; and “Defendant Wal-Mart Stores, Inc. is a Delaware
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Corporation with its principal place of business in Arkansas,” but “the correct corporate
entity/Defendant is Wal-Mart Stores Texas, LLC,” and “Defendant Wal-Mart Stores
Texas, LLC is now and was at the time of the filing of this action a Delaware Limited
Liability Company with its principal place of business in Arkansas.” Id. at 1, 2.
Defendants assert that “[t]his action may be removed to this Court pursuant to 28
U.S.C. § 1441(b), because no Defendant is a citizen of Texas, the state in which the
action was brought.” Id. at 3.
And Defendants state that, “[i]n accordance with 28 U.S.C. § 1446(d), written
notice of the filing of this Supplemental Notice of Removal will be given to all parties
and to the Clerk of the 95th District Court of Dallas County, Texas.” Id.
On August 30, 2016, after conducting a Federal Rule of Civil Procedure 16(b)
pretrial scheduling conference with Mauer’s counsel and Defendants’ counsel, see Dkt.
No. 15, the Court issued the following Electronic Order:
ELECTRONIC ORDER: After carefully reviewing Defendants’
Supplemental Notice of Removal [14], the Court concludes that
Defendants’ jurisdictional allegations are defective where pleading
Plaintiff’s residency instead of her citizenship fails to meet 28 U.S.C. §
1446’s jurisdictional pleading requirement, where Defendants have not
included complete allegations of the citizenship of Wal-Mart Stores Texas,
LLC (although this information may be contained in Defendants’
Certificate of Interested Persons [3]), and where Defendants appear to
suggest that the Court should not consider the citizenship of Defendants
Wal-Mart Stores, Inc., Walmart Stores East, Inc., d/b/a Wal-Mart #1055,
and Wal-Mart Real Est Business – the defendants named in Plaintiff’s
Original Petition – because they were not correctly sued or are not the
correct corporate entity or defendant but fail to further explain the
citizenship of these entities and why they should be ignored (such as, for
example, as nominal parties) for purposes of determining whether the
Court has diversity jurisdiction under 28 U.S.C. § 1332(a). The Court can
properly, under 28 U.S.C. § 1653, require Defendants to remedy these
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inadequate jurisdictional allegations. See In re Allstate Ins. Co., 8 F.3d
219, 221 n.4 (5th Cir. 1993); Neeley v. Bankers Trust Co. of Texas, 757
F.2d 621, 634 n.18 (5th Cir. 1985); Moore v. Gladiator Events, LLC, No.
3:15-cv-1877-M, 2015 WL 5459625, at *3 (N.D. Tex. Sept. 15, 2015).
Accordingly, the Court ORDERS Defendants to file a response, by
September 12, 2016, to Plaintiff’s Motion to Remand [12] and to
simultaneously file an amendment to their Supplemental Notice of
Removal to remedy these defective jurisdictional allegations. Plaintiff
may then file a combined reply in support of her Motion to Remand and
to these amended jurisdictional allegations by no later than September
26, 2016. (Ordered by Magistrate Judge David L. Horan on 8/30/2016.)
Dkt. No. 16.
Defendants then filed a Second Supplemental Notice of Removal on September
9, 2016. See Dkt. No. 18. Defendants explain that “Plaintiff commenced this lawsuit
by filing her Original Petition on June 6, 2016”; that “Defendant was served with the
Original Petition on or about July 6, 2016, through the registered agent for
Defendants”; that “Defendants filed their initial Notice of Removal on July 19, 2016”;
and that “Defendants’ removal is timely because it was filed within thirty days after
the Defendants were served via their registered agents,” pursuant to 28 U.S.C. § 1446.
Id. at 2.
Defendants allege that “[r]emoval is proper under 28 U.S.C. §§ 1441 and
1332(a)(1) because there is complete diversity of citizenship between all Plaintiffs and
Defendants and the amount in controversy exceeds $75,000,” where “Plaintiff’s original
petition alleges she has suffered damages in an amount between $100,000 and
$200,000”; that “Plaintiff is a citizen of Texas as evidenced by her holding an active
Texas drivers license”; that “Defendant Wal-Mart Stores, Inc. is a Delaware
Corporation with its principal place of business in Arkansas”; and that “Defendant
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Wal-Mart Stores East, Inc., is a Delaware Corporation with its principal place of
business in Arkansas” but that “the correct corporate entity/Defendant is Wal-Mart
Stores Texas, LLC” and that “Defendant Wal-Mart Stores Texas, LLC is now and was
at the time of the filing of this action a Delaware Limited Liability Company with its
principal place of business in Arkansas.” Id. at 2, 3 (footnotes omitted). And
Defendants allege that “Defendant Wal-Mart Real Est Business is not an existing
entity” but that “[i]t is presumed Plaintiff intended to name Wal-Mart Real Estate
Business Trust as a defendant” and that “Wal-Mart Real Estate Business Trust is a
Delaware business trust with its principal place of business in Arkansas.” Id. at 3. But,
Defendants allege, “the correct corporate entity/Defendant is Wal-Mart Stores Texas,
LLC,” which “is now and was at the time of the filing of this action a Delaware Limited
Liability Company with its principal place of business in Arkansas.” Id.
In their Certificate of Interested Persons, Defendants explain:
Wal-Mart Stores, Inc., is a Delaware Corporation with its principal place
of business in Arkansas. However, the correct corporate entity/Defendant
is Wal-Mart Stores Texas, LLC. Defendant Wal-Mart Stores Texas, LLC
is now and was at the time of the filing of this action a Delaware Limited
Liability Company with its principal place of business in Arkansas. The
citizenship of an LLC is the same as the citizenship of all its members.
Wal-Mart Real Estate Business Trust is the sole owner of Wal-Mart
Stores Texas LLC. Wal-Mart Real Estate Business Trust is a statutory
business trust organized under the laws of Delaware with its principal
place of business in Arkansas. Wal-Mart Property Co. is the sole owner
of Wal-Mart Real Estate Business Trust. Wal-Mart Property Co. is a
Delaware corporation with its principal place of business in Arkansas.
Wal-Mart Stores East, LP is the sole owner of Wal-Mart Property Co.
Wal-Mart Stores East LP is a Delaware Limited Partnership with its
principal place of business in Arkansas. WSE Management, LLC is the
general partner, and WSE Investment, LLC is the limited partner of
Wal-Mart Stores East, LP. WSE Management, LLC and WSE
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Investment, LLC are both Delaware Limited Liability Companies with
their principal place of business in Arkansas. The sole member of WSE
Management, LLC and WSE Investment, LLC is Wal-Mart Stores East,
LLC. Wal-Mart Stores East, LLC is a limited liability company organized
under the laws of the state of Arkansas with its principal place of
business in Arkansas. Wal-Mart Stores, Inc. is the sole owner of
Wal-Mart Stores East, LLC. Wal-Mart Stores, Inc. is a Delaware
Corporation with its principal place of business in Arkansas.
Dkt. No. 3 at 1-2.
In their Second Supplemental Notice of Removal, Defendants assert that “[t]his
action may be removed to this Court pursuant to 28 U.S.C. § 1441(b), because Plaintiff
is a citizen of Texas and no Defendant is a citizen of Texas, the state in which the
action was brought.” Dkt. No. 18 at 3. And Defendants state that, “[i]n accordance with
28 U.S.C. § 1446(d), written notice of the filing of this Second Supplemental Notice of
Removal will be given to all parties and Defendants have provided to the Clerk of the
95th District Court of Dallas County, Texas, their initial Notice of Removal.” Id. at 4.
Defendants also responded to the Motion to Remand on September 8, 2016 and
filed an amended response on September 9, 2016. See Dkt. Nos. 17 & 19. They assert
that, while “Plaintiff asks this Court to remand this case to State Court on the premise
that this case does not satisfy the amount in controversy requirement,” “Plaintiff’s
argument is insufficient as a matter of law to support Plaintiff’s request for a remand
of this case,” where “Plaintiff overlooks the fact that the basis for removal attached
at the time this case was removed, and that Plaintiff’s amended petition is therefore
irrelevant to the determination of whether this Court has subject matter jurisdiction
over this matter.” Dkt. No. 19 at 2.
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Plaintiff has not filed a response to the amended jurisdictional allegations or a
reply in support of her Motion to Remand, and her time to do so has passed. See Dkt.
No. 16.
Legal Standards and Analysis
A defendant may remove “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).
Statutes that authorize removal are meant to be strictly construed, and any doubt as
to the propriety of removal should be resolved in favor of remand. See Hood ex rel.
Miss. v. JP Morgan Chase & Co., 737 F.3d 78, 89 (5th Cir. 2013); In re Hot-Hed Inc.,
477 F.3d 320, 323 (5th Cir. 2007).
The removing party bears the burden of establishing jurisdiction. See Miller v.
Diamond Shamrock Co., 275 F.3d 414, 417 (5th Cir. 2001). A federal court’s
jurisdiction is limited, and federal courts generally may hear only a case of this nature
if it involves a question of federal law or where diversity of citizenship exists between
the parties. See 28 U.S.C. §§ 1331, 1332. “As a general rule, absent diversity
jurisdiction, a case will not be removable if the complaint does not affirmatively allege
a federal claim.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003). “[T]he basis
upon which jurisdiction depends must be alleged affirmatively and distinctly and
cannot be established argumentatively or by mere inference.” Ill. Cent. Gulf R. Co. v.
Pargas, Inc., 706 F.2d 633, 636 (5th Cir. 1983) (citation and internal quotation marks
omitted). “If at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).
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In diversity cases under 28 U.S.C. § 1332, each plaintiff’s citizenship must be
diverse from each defendant’s citizenship, and the amount in controversy must exceed
$75,000, exclusive of interest and costs. See 28 U.S.C. § 1332(a). Failure to allege
adequately the basis of diversity requires remand. See Stafford v. Mobil Oil Corp., 945
F.2d 803, 805 (5th Cir. 1991).
“If removal of a civil action is sought on the basis of the jurisdiction conferred
by section 1332(a), the sum demanded in good faith in the initial pleading shall be
deemed to be the amount in controversy, except that – (A) the notice of removal may
assert the amount in controversy if the initial pleading seeks – (i) nonmonetary relief;
or (ii) a money judgment, but the State practice either does not permit demand for a
specific sum or permits recovery of damages in excess of the amount demanded; and
(B) removal of the action is proper on the basis of an amount in controversy asserted
under subparagraph (A) if the district court finds, by the preponderance of the
evidence, that the amount in controversy exceeds the amount specified in section
1332(a).” 28 U.S.C. § 1446(c)(2). That is, if no amount of damages has been alleged in
the state court petition, the defendant must prove by a preponderance of the evidence
that the amount in controversy exceeds the jurisdictional minimum. See id.; De Aguilar
v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir. 1995).
This requirement can be satisfied if the defendant shows that “(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.” Manguno v. Prudential
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Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). “‘The removing party’s burden
is to show not only what the stakes of the litigation could be, but also what they are
given the plaintiff’s actual demands.... The demonstration concerns what the plaintiff
is claiming (and thus the amount in controversy between the parties), not whether the
plaintiff is likely to win or be awarded everything he seeks.” Berniard v. Dow Chem.
Co., 481 F. App’x 859, 862 (5th Cir. 2010) (quoting Spivey v. Vertrue, Inc., 528 F.3d 982,
986 (7th Cir. 2008); emphasis removed). And, “once a defendant is able to show that
the amount in controversy exceeds the jurisdictional amount, removal is proper,
provided plaintiff has not shown that it is legally certain that his recovery will not
exceed the amount stated in the state complaint” or “to a legal certainty that the claim
is really for less than the jurisdictional amount.” De Aguilar, 47 F.3d at 1411-12.
“[A]s specified in [28 U.S.C.] § 1446(a), a defendant’s notice of removal need
include only a plausible allegation that the amount in controversy exceeds the
jurisdictional threshold. Evidence establishing the amount is required by §
1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s
allegation.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554
(2014); see 28 U.S.C. § 1446(a) (“A defendant or defendants desiring to remove any civil
action from a State court shall file in the district court of the United States for the
district and division within which such action is pending a notice of removal signed
pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and
plain statement of the grounds for removal, together with a copy of all process,
pleadings, and orders served upon such defendant or defendants in such action.”).
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“[W]hen a defendant’s assertion of the amount in controversy is challenged,” “both
sides submit proof and the court decides, by a preponderance of the evidence, whether
the amount-in-controversy requirement has been satisfied.” Dart Cherokee, 135 S. Ct.
at 554; accord A&C Disc. Pharmacy L.L.C. v. Prime Therapeutics LLC, No.
3:16-cv-429-D, 2016 WL 3194332, at *2 (N.D. Tex. June 9, 2016).
Pursuant to the complete diversity requirement, the Court cannot exercise
jurisdiction if any plaintiff shares the same citizenship as any defendant. See Corfield
v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003). “For diversity jurisdiction,
the party asserting federal jurisdiction must distinctly and affirmatively allege [ ] the
citizenship of the parties.” Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir.
2001).
As their Supplemental Notice of Removal and Second Supplemental Notice of
Removal make clear, Defendants removed this case under Section 1441(a) on the basis
of diversity jurisdiction under 28 U.S.C. § 1332. See Dkt. No. 14 at 1, 2; Dkt. No. 18 at
2-4.
Defendants may amend their original Notice of Removal pursuant to 28 U.S.C.
§ 1653 where the defects in the original Notice of Removal were in the nature of a
failure to state the basis for subject-matter jurisdiction and where the existence of
diversity jurisdiction at the time of removal on July 19, 2016 was not questioned by the
parties and there is no suggestion in the record that it did not in fact exist. See Stafford
v. Mobil Oil Corp., 945 F.2d 803, 806 (5th Cir. 1991). Section 1653 provides that
“[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or
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appellate courts.” 28 U.S.C. § 1653. Section 1653 provides a method for curing
Defendants’ defective allegations of jurisdiction “where the defect is merely one of the
pleading and not one of an absence of proof of facts necessary to establish diversity of
citizenship.” Id. The circumstances here do not implicate “[t]he danger against which
a court must guard, [which] is that a party will attempt to use § 1653 to retroactively
create subject matter jurisdiction” by making amendments to add claims, causes of
actions, or parties to “create jurisdiction where it did not previously exist.” Whitmire
v. Victus Ltd., 212 F.3d 885, 888 (5th Cir. 2000). Put another way, the Court can, under
Section 1653, permit a party to “‘remedy inadequate jurisdictional allegations’” but not
“‘defective jurisdictional facts.’” Id. (quoting Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 832 n.5 (1989)).
Defendants’ Supplemental Notice of Removal still did not adequately allege the
parties’ citizenship for diversity jurisdiction purposes, and the Court therefore
permitted a second amendment to the notice of removal under Section 1653. See In re
Allstate Ins. Co., 8 F.3d 219, 221 n.4 (5th Cir. 1993); Neeley v. Bankers Trust Co. of
Texas, 757 F.2d 621, 634 n.18 (5th Cir. 1985); Moore v. Gladiator Events, LLC, No.
3:15-cv-1877-M, 2015 WL 5459625, at *3 (N.D. Tex. Sept. 15, 2015) (collecting cases).
As laid out above, the Second Supplemental Notice of Removal in combination
with Defendants’ Certificate of Interested Persons sufficiently alleges that no named
defendant – including each entity that Defendants contend are not the proper
defendants – is a citizen of Texas and that Mauer is a citizen of Texas. Defendants
therefore do not rely on improper joinder or the nominal-defendant doctrine or related
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doctrines to establish complete diversity of citizenship in this case.
Plaintiff’s Motion to Remand is based on an amendment in her First Amended
Petition to reduce the amount-in-controversy allegation below Section 1332(a)’s
$75,000.00 jurisdictional threshold. She filed her First Amended Petition in the state
court on August 17, 2016, almost a month after Defendants’ filed their original Notice
of Removal on July 19, 2016.
28 U.S.C. § 1446(d) requires that “[p]romptly after the filing of such notice of
removal of a civil action the defendant or defendants shall give written notice thereof
to all adverse parties and shall file a copy of the notice with the clerk of such State
court, which shall effect the removal and the State court shall proceed no further
unless and until the case is remanded.” Plaintiff does not dispute that Defendant
provided notice to the clerk of the state court at or around the time of filing the original
Notice of Removal, as the Notice of Removal itself states that they did. See Dkt. No. 1
at 1; see also Dkt. No. 18 at 4.
“While the statute requires that the removing defendant give notice to the court
and all parties, and there is some disagreement in the case law as a whole, Fifth
Circuit case law consistently suggests that the state court is divested of jurisdiction
when the state court receives either actual or constructive notice of the removal,” and
“[t]he Fifth Circuit case law has been quite consistent in holding that the state court
ceases to have jurisdiction when the state court is given notice.” McAdams v.
Medtronic, Inc., Civ. A. No. H-10-2336, 2010 WL 2710393, at *2, *3 (S.D. Tex. July 7,
2010) (citing cases). Here, “[t]he moment [that Defendants] filed the Notice of Removal
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in the state court, the state court lost its jurisdiction and removal was effected,” and
“[t]he fact that [Defendants] filed a subsequent [Supplemental] Notice of Removal in
this Court to correct a deficiency present in its original notice has no bearing on this
determination.” Robinson v. Wheeler, No. 415CV00104DMBJMV, 2016 WL 593624, at
*5 (N.D. Miss. Feb. 12, 2016), reconsideration denied, 2016 WL 4384745 (N.D. Miss.
Aug. 16, 2016).
Plaintiff’s change in the amount of damages she seeks is therefore a postremoval event. In fact, any post-removal filing in the state court is void because the
case was no longer pending there. See McAdams, 2010 WL 2710393, at *4.
But, even if that were not so, in the context of removal, “[t]he jurisdictional facts
that support removal must be judged at the time of the removal.” Gebbia v. Wal-Mart
Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). This follows from the “long-established
general rule, holding that jurisdictional facts are determined at the time of removal,
and consequently post-removal events do not affect that properly established
jurisdiction.” La. v. Am. Nat. Prop. Cas. Co., 746 F.3d 633, 636 (5th Cir. 2014). Under
this general rule, “most post-removal developments – amendment of pleadings to below
jurisdictional amount or change in citizenship of a party – will not divest the court of
jurisdiction.” Hensgens v. Deere & Co., 833 F.2d 1179, 1181 (5th Cir. 1987); accord
GlobeRanger Corp. v. Software Ag United States of Am., Inc., ___ F.3d ___, No.
15-10121, 2016 WL 4698270, at *6 (5th Cir. Sept. 7, 2016) (“Before delving into
GlobeRanger I, we begin with some basic principles of federal jurisdiction that inform
our reading of it. First is the ‘fundamental principle’ that jurisdiction is determined
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based on the time of removal. This removal rule is a corollary of the ‘time-of-filing rule’
that governs jurisdictional determinations for cases originally filed in federal court. A
rule of ‘hornbook law,’ the time-of-filing rule traces at least as far back as an 1824
Supreme Court case holding that jurisdiction depends upon the state of things at the
time of the action brought. Both the time-of-filing and time-of-removal rule make
sense. It would be inefficient for the court, as well as for litigants, if the power of the
court to decide a case could exist at the outset, but later disappear based on changed
circumstances.” (internal quotation marks and citations omitted)); Anderson v. Dow
Chem. Co., 255 F. App’x 1, 3 (5th Cir. 2007) (“[I]t is well established that, with few
exceptions, diversity jurisdiction is determined as at the time an action is filed; an
amendment to the complaint or stipulation reducing the amount in controversy does
not divest a federal court of such jurisdiction.” (emphasis in original)). As such,
“though, as here, the plaintiff after removal, by stipulation, by affidavit, or by
amendment of his pleadings, reduces the claim below the requisite amount, this does
not deprive the district court of jurisdiction.” St. Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 292 (1938) (footnote omitted).
Accordingly, post-removal declarations are generally not a part of determining
an amount in controversy. See Ford v. United Parcel Serv., Inc. (Ohio), No 3:14-cv1872-D, 2014 WL 4105965, at *4 (N.D. Tex. Aug 21, 2014). They can only be considered
if the jurisdictional amount was ambiguous on the face of the state petition or at the
time of removal. See Gebbia , 233 F.3d at 883; St. Paul Reinsurance Co., 134 F.3d at
1254 n.18. If the state-court petition on its face satisfies the amount-in-controversy
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requirement, a plaintiff’s later attempt to “clarify the amount in controversy cannot
divest jurisdiction.” Robinson v. Wal Mart Stores Texas, LLC., 561 F. App’x 417, 418
(5th Cir. 2014); accord Marcel v. Pool Co., 5 F.3d 81, 85 (5th Cir. 1993) (“In cases in
which, on the other hand, the plaintiff, by whatever means, seeks to reduce, rather
than clarify, his demand after removal, the plain language of St. Paul Mercury and the
rationale of [Asociación Nacional de Pescadores a Pequeña Escala o Artesanales de
Colombia v. Dow Química de Colombia S.A., 988 F.2d 559 (5th Cir. 1993)]
unequivocally bar remand for want of jurisdictional amount.”).
Here, Plaintiff does not assert ambiguity in the statement of the jurisdictional
amount in her Original Petition. And her damages allegations in her Original Petition
were not ambiguous, and there is no evidence that, even if she has changed her mind,
she did not originally plead her damages in good faith. See TFHSP LLC Series 605 v.
Lakeview Loan Servicing, LLC, No. 3:14-CV-1782-B, 2014 WL 5786949, at *4 (N.D.
Tex. Nov. 3, 2014)
Rather, Plaintiff seeks to affirmatively change the pleaded amount-incontroversy based on the post-removal First Amended Petition. But, “[t]o determine
whether jurisdiction is present for removal, [the Court] consider[s] the claims in the
state court petition as they existed at the time of removal.” Manguno, 276 F.3d at 723.
And, “once the district court’s jurisdiction is established, subsequent events that reduce
the amount in controversy to less than $75,000 generally do not divest the court of
diversity jurisdiction.” Gebbia, 233 F.3d at 883; accord Jefferson v. Certain
Underwriters at Lloyd’s London, ___ F. App’x ___, No. 15-30211, 2016 WL 4487638, at
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*2 (5th Cir. Aug. 25, 2016) (noting “the venerable rule that the jurisdiction of the court
depends upon the state of things at the time of the action brought,” which “clearly
applies, for example, ... to post-removal diminutions of the amount in controversy”
(internal quotation marks and footnotes omitted));
That is, “[o]nce the district court [has] found that it had jurisdiction, the
jurisdiction is deemed to have vested in the court at the time of removal. An
amendment to the complaint limiting damages for jurisdictional purposes cannot divest
jurisdiction.” Allen, 63 F.3d at 1336. If, as is the case here, “it is facially apparent from
the petition that the amount in controversy exceeds $75,000 at the time of removal,
post-removal affidavits, stipulations, and amendments reducing the amount do not
deprive the district court of jurisdiction.” Gebbia, 233 F.3d at 883. “Although Plaintiff[]
[has] attempted to reduce the amount in controversy through the [First] Amended
Petition, post-removal amendments do not destroy this Court’s removal jurisdiction.”
Omutiti v. Macy’s Dep’t Store, Civ. A. No. H-15-2167, 2015 WL 5311063, at *2 (S.D.
Tex. Sept. 11, 2015); accord Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256,
264-65 (5th Cir. 1995) (explaining that “a plaintiff cannot defeat removal by
[subsequently] changing his damage request” and “attempt[ing] instead to amend away
the basis for federal jurisdiction,” where “removal jurisdiction should be determined
on the basis of the state court complaint at the time of removal, and that a plaintiff
cannot defeat removal by amending it” (emphasis removed)); Ragas v. Ford Leasing
Dev. Co., Civ. A. No. 96-1919, 1998 WL 2851, at *1 (E.D. La. Jan. 5, 1998) (“Thus, a
plaintiff cannot defeat removal by changing his damage request after removal if the
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requisite amount in controversy exists at the time of removal.”); Choate v. State Farm
Mut. Auto. Ins. Co., 62 F.3d 395 (table), No. 94-60589, 1995 WL 450253, at *3 (5th Cir.
July 7, 1995) (“Because State Farm properly removed Choate’s suit to federal court,
Choate cannot defeat removal by attempting to amend her pleadings to reduce the
amount in controversy below the required sum.”).
Neither can a post-removal stipulation divest the Court of diversity jurisdiction,
because “‘[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
Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 845 (1938)], 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 curiam)). “The plaintiff cannot manipulate the amount in
controversy by changing his demand, including filing a stipulation, after removal.”
Ragas, 1998 WL 2851, at *2. “[A] postremoval stipulation cannot change the amount
in controversy, but can serve to clarify it when the amount in controversy is
ambiguous.” B Dubs, LLC v. Scottsdale Ins. Co., Civ. A. No. 15-65-JWD-RLB, 2015 WL
3651014, at *6 (M.D. La. June 11, 2015).
Accordingly, any post-removal amendment to Plaintiff’s damages allegations
does not deprive the Court of diversity jurisdiction.
Conclusion
For the reasons explained above, the Court determines that it has subjectmatter jurisdiction over this case under 28 U.S.C. § 1332 and DENIES Plaintiff’s
Motion to Remand [Dkt. No. 12].
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SO ORDERED.
DATED: October 5, 2016

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

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