Gonzalez v. Wal-Mart Stores Texas, LLC
OPINION AND ORDER denying 9 Motion to Remand.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
WAL-MART STORES, TEXAS, LLC,
Civ. A. H-14-2880
OPINION AND ORDER
Pending before the Court in the above referenced cause,
9, 2014 on diversity
jurisdiction and alleging personal injury caused
by a premises
defect which Defendant Wal-Mart Stores, Texas LLC negligently
failed to inspect and of which it failed to warn invitees, is
Plaintiff Cornelio Gonzalez’s (“Gonzalez’s”) motion to remand
pleading at the time of the petition for removal.
Pullman Co. v.
Jenkins, 305 U.S. 534, 537-38 (1939); Cavallini v. State Farm
Mutual Auto Ins., 44 F.3d 256, 264 (5th Cir. 1995); Ford v.
Property & Cas. Ins. Co. of Hartford, No. Civ. A. H-09-1731, 2009
Under 28 U.S.C. § 1441(a)1 any state court action over
Title 28 U.S.C. § 1441(a) states, “Except as otherwise
expressly provided by Act of Congress, any civil action brought in
a State court of which the district courts of the United States
have original jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for the
district and division embracing the place where such action is
which federal courts would have original jurisdiction may be
removed from state to federal court.
Gasch v. Hartford Accident
& Indemnity Co., 491 F.3d 278, 282 (5th Cir. 2007; Guttierrez v.
Flores, 543 F.3d 248, 251 (5th Cir. 2008)(“A district court has
The removing party bears the burden of showing that
subject matter jurisdiction exists and that removal was proper.
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th
Any doubts are construed against removal because the
removal statute is strictly construed in favor of remand.
The district court must resolve all contested fact issues and
ambiguities of state law in favor of the plaintiff and remand.
Gasch, 491 F.3d at 281.
The Fifth Circuit explains, since “‘the
effect of removal is to deprive the state court of an action
The removal statute is therefore to be strictly
construed, and any doubt about the propriety of removal must be
resolved in favor of remand.” Id. at 281-82, quoting Carpenter v.
Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir.
Furthermore, “[i]f at any time before final judgment it
appears that the district court lacks jurisdiction, the case shall
18 U.S.C. § 1447(c).
Under 28 U.S.C. §1332, a defendant may remove a case if
there is (1) complete diversity of citizenship and (2) the amount
in controversy is greater than $75,000, exclusive of interests and
jurisdiction is based on diversity, as is claimed by Defendants
here, a defendant may remove a state court civil action only “if
none of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
In addition to satisfying jurisdictional requirements,
a removing defendant must also satisfy procedural requirements.
Under 28 U.S.C. § 1446(b), failure to file
for removal within 30
days of being served with a copy of the pleading or summons is a
procedural defect warranting remand.
F.2d 1518, 1522 (5th Cir. 1991).2
In re Shell Oil Co., 932
If at first the case is not
removable, “a notice of removal may be filed within 30 days after
receipt by the defendant, through service or otherwise, of an
amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become
removable.” 28 U.S.C. § 1446(b)(3).3
The “other paper” under §
Section 1446(b)(1) states in full,
The notice of removal of a civil action or
proceeding shall be filed within 30 days
after the receipt by the defendant, through
service or otherwise, of a copy of the
initial pleading setting forth the claim for
relief upon which such action or proceeding
is based, or within 30 days after the service
of summons upon the defendant if such initial
pleading has then been filed in court and is
not required to be served on the defendant,
whichever period is shorter.
Section 1446(b)(3) provides,
Except as provided in subsection (c), if the
case stated by the initial pleading is not
removable, a notice of removal may be filed
within 30 days after receipt by the
1446(b)(3) may be discovery responses, pleadings, deposition
transcripts, and attorney communications.
Still v. Georgia-
Pacific Corp., 965 F. Supp. 878, 881 (S.D. Miss. 1997)(and cases
Furthermore “the information supporting removal
in a copy of an amended pleading, motion, order or other paper
must be ‘unequivocally clear and certain’ to start the time limit
running for a notice of removal under the second paragraph of
Bosky v. Kroger Texas, LP, 288 F.3d 208, 211
(5th Cir. 2002).
In addition, “all defendants who have been properly
joined and served must join in or consent to the removal of the
28 U.S.C. § 1446(b)(2)(A).
The absence of such joint
consent is a procedural, not a jurisdictional, defect. Johnson v.
Helmerich & Payne, Inc., 892 F.3d 422, 23 (5th Cir. 2009).
removal is procedurally defective if such consent is not timely
Doe v. Kerwood, 969 F.2d 165, 167-69 (5th Cir. 1992).
Moreover there must be “some timely written indication” of each
served defendant’s consent.
Getty Oil Corp., a Div. of Texaco,
Inc. v. Ins. Co. of N. America, 841 F.2d 1255, 1262 (5th Cir.
1998). An exception to this rule of joint consent is that nominal
or formal parties need not join in the removal petition.
Beazley, No. 09-20005,2009 WL 7361370, at *4 (5th Cir. May 4,
2009)(“To establish the non-removing parties are nominal parties,
defendant, through service or otherwise, of a
copy of an amended pleading, motion, order or
other paper from which it may first be
ascertained that the case is one which is or
has become removable.
the removing party must show . . . that there is no possibility
that the plaintiff would be able to establish a cause of action
determining whether a party is nominal, a court asks ‘whether in
the absence of the [party], the Court can enter a final judgment
consistent with equity and good conscience, which would not be in
any way unfair or inequitable.’
Additionally, a party is nominal
stakeholder,’ e.g., one ‘who has possession of the funds which are
the subject of litigation [and] . . . must often be joined purely
as a means of facilitating collection.
The test is not dependent
on how the plaintiff labels its complaint, but rather on the
practical effect of a judgment on a given defendant.”), citing
Farias v. Bexar County Bd. of Trustees for Mental Health Mental
establish that non-removing parties are nominal parties, ‘the
removing party must show . . . that there is no possibility that
the plaintiff would be able to establish a cause of action against
non-removing defendants in state court.”); Louisiana v. Union Oil
Co. of Calif., 458 F.3d 364, 366-67 (5th Cir. 2006).
Gonzales’s Motion to Remand (#9)
Gonzales moves for remand first on the grounds that WalMart Stores Texas, LLC filed a notice of removal more than thirty
days after it was served with the Original Petition, and he
attaches as Exhibit A the return of service and as Exhibit B
verification of receipt of suit.
Gonzales represents that he
indicated on the Civil Case Information Sheet, filed on the same
date as he filed suit in State court, on July 10, 2014, stating
that he suffered damages of more than $200,000, that the Civil
Case Information Sheet is a public record that could easily have
been examined on the district clerk’s website on or about July 15,
2014 by Wal-Mart Stores Texas, LLC or its attorney after being
served with suit, and that Defendant had to file its notice of
removal within thirty days of July 15, 2014.
Furthermore Plaintiff’s Amended Original Petition (#1-3
at p.1) asserts its claims are against “Wal-Mart Stores Texas,
LLC, “Wal-Mart Stores, East, L.P., and Wal-Mart Stores, Inc.
(collectively referred to as ‘Wal Mart’) Defendants.””
now objects to the removal on the grounds that there is no
indication that co-Defendant Wal-Mart Stores East, L.P. ever
joined or consented to the removal.
Wal-Mart’s Response (#10)
Noting that Gonzalez’s Original Petition, the one served
on Defendants on July 15, 2014, did not specify the amount in
controversy, Wal-Mart points out that in the Special Exceptions it
filed requesting that Gonzalez plead the amount of damages,
Gonzalez filed a First Amended Petition on September 29, 2014
stating that he was seeking damages of “over $200,000, but not
more than $1,000,000.00".
#1-3 at p. 4.
Wal-Mart then timely
removed the suit on October 9, 2014.
Wal-Mart construes Gonzalez’s argument about the civil
information sheet as constituting the “other paper” referenced in
28 U.S.C. § 1446(b)(3)(see footnote 3 of this Opinion and Order).
Gonzalez, in essence, argues that Wal-Mart’s removal was untimely
because it should have exercised due diligence by seeking out the
district clerk’s website and learning from it the amount of
damages Gonzalez was seeking when he first filed the suit.
In Chapman v. Powermatic, Inc., 969 F.2d 1603 (5th Cir.
1992), cert. denied, 507 U.S. 967 (1993), the plaintiff failed to
state the amount of damages sought in his petition, but later
specified that sum in an answer to an interrogatory, and the
defendant removed within thirty days of receiving that answer to
The plaintiff moved to remand, arguing the
removal was untimely because the defendant should have exercised
due diligence to determine the amount in controversy at the time
the plaintiff filed suit.
The Fifth Circuit disagreed and held
that the thirty-day removal period is only triggered when the
initial petition “affirmatively reveals on its face that the
amount of the federal court.”
reaffirmed, Mumfrey v. CVS Pharmacy, Inc. 719 F.3d 392, 399-400
(5th Cir. 2013).
The panel explained, “We adopt this rule because
we conclude that it promotes certainty and judicial efficiency by
not requiring courts to inquire into what a particular defendant
may or may not subjectively know.”
Id. at 163.
Furthermore, argues Wal-Mart, in Morse v. Am. Sec. Ins.
Co., Civ. A. No. H-10-4604, 2011 WL 332544 (S.D. Tex. Jan. 28,
2011), Judge Rosenthal addressed a situation on point with that in
the instant action, in which Rene Morse, a property owner, sued
her insurer for damages caused by a hurricane to her home, but
failed to state the amount of damages in her petition, filed on
August 16, 2010. Only on November 10, 2010 did Morse provide the
insurance company with a letter stating that she sought $225,000
The insurer filed a notice of removal based on
diversity jurisdiction on November 18, 2010, and Morse moved for
remand, arguing that the insurance company had notice of the
amount in controversy from the civil cover sheet when the suit was
Relying on the
Courts addressing a similar argument have
held that a statement about damages amount in
a civil cover sheet is not sufficient to
establish the jurisdictional minimum amount
in controversy. See, e.g., Humphreys v. Am.
Family Mut. Ins. Co. , Civ. A. No. 08-CV01299, 2008 WL 2787344, at *2 (D. Colo. July
15, 2008); Magdaleno v. L.B. Foster Co., Civ.
A. No. 06-CV-1882, 2008 WL 496314, at *5-*6
(D. Colo. Feb. 19, 2008). As these opinions
recognize, “the election [of the Civil Cover
Sheet] is simply too imprecise to make the
requisite demonstration of the amount in
jurisdiction. From this representation, the
Court cannot determine what law is applicable
or whether the plaintiff seeks an amount
which can be recovered under applicable law.”
Magdaleno, 2008 WL 496314, at *6. The civil
cover sheet is not a pleading and does not
contain the certifications required by Rule
11 of the Federal Rules of Civil Procedure.
“[r]eference to [the Civil Cover Sheet] in
the removal does not cure the problem because
the attorney signing the notice of removal
necessarily is not the attorney who made the
election in the Civil Cover sheet.”).
Considering the representation of the civil
allegations in the petition did not provide
sufficient notice to the defendant that the
minimum amount in controversy was satisfied.
Morse, 2011 WL 332544, at *2; in accord, Good v. Kroger Texas,
L.P., No. 4:13-CV-464-A, 2013 WL 3989097, at *2 (N.D. Tex. Aug. 5,
Finding that the notice of removal was timely
filed, Judge Rosenthal denied the motion to remand.
Id. at *3.
This Court notes that in Baker v. Sears Holdings Corp.,
557 F. Supp. 2d 1208, 1214 (D. Colo. 2007), the federal district
The Court concludes that reliance solely on
the Civil Cover Sheet as a demonstration of
the amount in controversy is not permissible
for several reasons. First, the law in the
Tenth Circuit is clear. To determine the
amount in controversy, this Court may look at
the initial pleading (the complaint) or the
notice of the removal. A complaint is signed
and certified by counsel pursuant to C.R.C.P.
11 and a notice of removal is signed and
certified by counsel pursuant to Fed. R. Civ.
P. 11. Although there are differences
between the two rules, they share common
ground in that both require counsel to
conduct a reasonable inquiry before filing
the document, and to certify to the best of
his or her knowledge, information, and
belief, that the facts and claims alleged can
be supported. Because the Civil Cover Sheet
does not contain such certification, it does
not constitute reliable evidence of the
amount in controversy. Reference to it in
the notice or removal does not cure the
problem because the attorney signing the
notice of removal necessarily is not the
attorney who made the election in the Civil
As for Gonzalez’s second ground in support of his motion
to remand, that Wal-Mart Stores East, L.P. did not consent to the
removal, Wal-Mart points out that even as early as in its Original
Answer in state court (#1-4, Ex. C, first ¶) as the threshold
matter Wal-Mart stated that Gonzales incorrectly named Wal-Mart
East, L.P. and Wal-Mart Stores, Inc. as Defendants, when the
correct Defendant is Wal-Mart Stores, Texas, L.L.C.
This Court notes that Wal-Mart’s Original Answer was
subject to Texas Rule of Civil Procedure 13(b), which is similar
to Federal Rule of Civil Procedure 11:
“By presenting to the
court a pleading, written motion, or other paper–-whether by
signing, filing, submitting or later advocating it–-an attorney or
unrepresented party certifies that to the best of the person’s
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not presented for
any improper purpose. . . . [and] (3) the factual contentions have
evidentiary support . . . ..
Moreover, Wal-Mart’s Notice of
subject to Federal Rule of Civil Procedure 11
In its Notice of Removal (#1, ¶ 9), Wal-Mart
Stores Texas, L.L.C. explains its previous and current (unchanged)
Defendant, Wal-Mart Stores Texas, L.L.C. is,
and at the time of filing of this action was,
a limited liability company existing under
the laws of the State of Delaware with its
principal place of business in the State of
Arkansas. The sole member of Wal-Mart Stores
Texas, L.L.C. is Wal-Mart Stores East, L.P.,
a Delaware limited partnership with its
principal place of business in the State of
Arkansas. Wal-Mart Stores East, L.P., is
comprised of general partner, WSE Management,
L.L.C., and limited partner, WSE Investment,
L.L.C., both of which are Delaware limited
liability companies with their principal
places of business in the State of Arkansas.
The sole member of WSE Management, L.L.C. and
WSE Investment, L.L.C. is Wal-Mart East,
Inc., an Arkansas corporation with its
principal place of business in the state of
In its response (#10) to Gonzalez’s motion to remand,
also subject to Rule 11, counsel for Wal-Mart Stores Texas, L.L.C.
further explains that he represents all Wal-Mart entities.
Plaintiff’s assertion that Wal-Mart Stores East, L.P. is a proper
defendant in this action, counsel represents that
East, L.P. consents to federal jurisdiction, but explains that
there was no consent from that entity filed because it is a
defendant and not a proper party to this premises
liability action and thus not required to join in the petition for
Tri-Cities Newspapers, Inc. v. Tri-Cities Printing
Pressman & Assistants’ Local 349, Intern. Printing Pressmen and
Assistants’ Union of North America , 427 F.2d 325, 327 (5
Thus for the reasons stated by Wal-Mart Stores Texas,
L.L.C. in its response and this Court in this Opinion and Order,
ORDERS that Gonzalez’s motion to remand is DENIED.
SIGNED at Houston, Texas, this 9th day of June , 2015.
UNITED STATES DISTRICT JUDGE
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