Sexton v. Wal-Mart Stores Texas, LLC

Filing 22

ORDER DENYING 4 Opposed MOTION to Remand.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MOLLY SEXTON ,
Plaintiff,
v.
WAL-MART STORES, LLC AND WAL-MART
REAL ESTATE BUSINESS TRUST ,
Defendants.

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March 18, 2016
David J. Bradley, Clerk

CIVIL ACTION H-15-1356

O RDER
Pending before the court is plaintiff Molly Sexton’s motion for remand. Dkt. 4. Having
considered the motion, response, and applicable law, the court is of the opinion that the motion
should be DENIED.
I. BACKGROUND
On April 27, 2015, Molly Sexton commenced an action in the County Court of Law of
Walker County, Texas, in which she sought personal injury damages resulting from a slip-and-fall
that occurred on or about December 23, 2013 at a Wal-Mart store in Huntsville, Texas. Dkt. 1,
Ex. 2. On May 20, 2015, defendant Wal-Mart Stores Texas, L.L.C. (“Wal-Mart”) removed the suit
to this court based on diversity jurisdiction. Dkt. 1. On May 21, 2015, Sexton filed a motion to
remand (Dkt. 4), and Wal-Mart filed its response on June 3, 2015 (Dkt. 10).
II. LEGAL STANDARD AND ANALYSIS
A party may remove to federal court “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 (2012). The party
seeking removal bears the burden of establishing federal jurisdiction. Willy v. Coastal Corp., 855
F.2d 1160, 1164 (5th Cir. 1988). This statutory right to removal is strictly construed because

“removal jurisdiction raises significant federalism concerns.” Id. (citations omitted). “[A]ny doubt
about the propriety of removal must be resolved in favor of remand.” Gasch v. Hartford Accident
& Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007). Wal-Mart claims removal jurisdiction based
on diversity of citizenship. Dkt. 1 at 1. Subject matter jurisdiction premised on diversity requires
(1) complete diversity of citizenship between the parties and (2) an amount in controversy in excess
of $75,000. 28 U.S.C. § 1332 (2012). The only disputed issue is whether the amount in controversy
requirement is satisfied.
When a plaintiff does not allege a specific amount of damages, defendant must prove by a
preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount.
Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000). “The defendant may prove that
amount either by demonstrating that the claims are likely above $75,000 in sum or value, or by
setting forth the facts in controversy that support a finding of the requisite amount.” Id. Wal-Mart
removed the case on May 20, 2015. Therefore, Wal-Mart’s supporting evidence must establish that
the damages in this matter, as of May 20, 2015, were likely to exceed $75,000. Allen v. R & H Oil
& Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
Wal-Mart points to the following evidence to support its claim that the amount in controversy
exceeds $75,000:
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Sexton’s lawsuit seeks a level 2 discovery, which only applies to cases in which the
amount of controversy is greater than $100,000. Dkt. 10, Ex. 1 at 2; see Tex. R. Civ.
P. 169(a)-(b) (expedited actions under level 1 only apply to claims of $100,000 or
less).

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A demand letter, sent by Sexton’s counsel on September 22, 2014, making a pre-suit
demand of $150,000 and representing that Sexton had incurred medical expenses of
at least $28,226.09. See Dkt. 10, Ex. 2.

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As Wal-Mart points out, federal district courts have consistently considered demand letters
as summary judgment evidence of the amount in controversy. See, e.g., Escobedo v. Marmaxx
Operating Corp., No. CIV.A. B-09-123, 2009 WL 1636245, at *2 (S.D. Tex. June 10, 2009)
(considering a pre-suit demand letter where the court determined that the petition was sufficiently
ambiguous as to the amount in controversy); Watson v. Provident Life & Ace. Ins. Co., No.
3:08-cv-2065-G, 2009 WL 1437823, at *2 (N.D. Tex. May 22, 2009); Lozano v. Schoellerman, No.
H-08-3069, 2009 WL 211080, at *2 (S.D. Tex. Jan. 28, 2009); Molina v. Wal-Mart Stores Texas,
LP., 535 F. Supp. 2d 805, 808 (W.D. Tex. 2008) (relying solely on the pre-suit demand letter to
establish the requisite amount in controversy as the plaintiff’s petition failed to request a numerical
amount of damages).
Here, Sexton asserts a claim for recovery of non-economic personal injury damages. The
demand letter reflects that, as of September of 2014, Sexton believed this case was worth $150,000.
Indeed, the demand letter suggests that $28,226.09 would compensate Sexton for her medical bills,
and the remaining portion of that $150,000 ($121,733.91) would compensate Sexton for her noneconomic injuries (pain and suffering, mental anguish, etc.). Based on the above evidence, the court
finds that Wal-Mart has satisfied its burden of proving by a preponderance of the evidence that the
amount in controversy exceeds $75,000.
III. CONCLUSION
For the foregoing reasons, Sexton’s motion to remand (Dkt. 4) is DENIED.
Signed at Houston, Texas on March 18, 2016.

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Gray H. Miller
United States District Judge
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