Martinez v. Costco Wholesale Corporation
ORDER GRANTING 5 Motion to Remand to State Court. IT IS FURTHER ORDERED that Plaintiff Brenda Martinezs claim is REMANDED to the El Paso County Court at Law Number Six, under Cause Number 2017-DCV-2601. Signed by Judge Philip R. Martinez. (scf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ORDER GRANTING PLAINTIFF’S MOTION TO REMAND
On this day, the Court considered Plaintiff Brenda Martinez’s
“Motion to Remand” (ECF No. 5) [hereinafter “Motion”], filed on October
11, 2017, Defendant Costco Wholesale Corporation’s “Response to
Plaintiff’s Motion for Remand” (ECF No. 6) [hereinafter “Response”],
filed on October 18, 2017, and Plaintiff’s “Reply” (ECF No. 7)
[hereinafter “Reply”], filed on October 23, 2017, in the above-captioned
cause. After due consideration, the Court is of the opinion that
Plaintiff’s Motion should be granted for the reasons that follow.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff alleges that she suffered an injury in the course and
scope of her employment with Defendant. Not. Removal Ex. A at 2,
Sept. 11, 2017, ECF No. 1. Specifically, Plaintiff alleges that she
suffered an injury while “performing her duties as a stocker” when a
box slipped and bent Plaintiff’s arm as she tried to catch it. Id. As a
result, Plaintiff brought suit against Defendant for negligence and
premises liability in state court. Id. at 2–3.
On September 11, 2017, Defendant removed the case to federal
court alleging that “removal of this matter is proper under 28 U.S.C.
§ 1332 based on diversity jurisdiction.” Not. Removal 1. The section
immediately following that sentence, titled “II. DIVERSITY
JURISDICTION,” contains solely this statement: “Pursuant to 28
U.S.C. § 1332(a), this Court has diversity jurisdiction over actions
between citizens of different states where the amount in controversy,
exclusive of interest and costs, exceeds $75,000.” Not. Removal 2. The
Notice of Removal provides no further information about the citizenship
of either party or the amount in controversy alleged.1 On October 11,
Plaintiff filed the instant Motion requesting that the Court remand the
While Plaintiff’s original state-court petition, which is attached to the
Notice of Removal, does provide details about the parties’ respective
citizenship, Defendant makes no reference to this information in the
Notice. For Defendant’s own sake, the Court will not assume that
Defendant adopts any statement in the original petition as true without
some sort of affirmative indication of such from Defendant. Without
any indication here, the Court will only accept the allegations on the
face of the Notice of Removal as pertinent to its analysis.
case because her claims allegedly arise under the Texas Worker’s
Compensation Act (“TWCA”), and are, therefore, nonremovable. Mot. 1.
Pursuant to 28 U.S.C. § 1441(a), federal law provides for the
removal of civil actions brought in a state court over which the district
court has original jurisdiction. “A federal district court may exercise
original jurisdiction over any civil action that either satisfies diversity
requirements or that arises under the federal constitution, statutes, or
treaties.” Energy Mgmt. Servs., L.L.C. v. City of Alexandria, 739 F.3d
255, 258–59 (5th Cir. 2014) (citing 28 U.S.C. §§ 1331, 1332, 1369).
“Thus, under § 1441, removal is proper only when the court has original
jurisdiction over at least one asserted claim under either federal
question or diversity jurisdiction.” Id. at 259.
Removal from state court raises significant federalism concerns.
Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008). “Federalism
concerns animate the rule requiring strict construction of removal
statutes.” Beiser v. Weyler, 284 F.3d 665, 674 (5th Cir. 2002). “The
removing party bears the burden of showing that federal jurisdiction
exists and that removal was proper.” Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing De Aguilar v.
Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995)). To show “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) (alteration omitted) (quoting
Stafford v. Mobil Oil Corp., 945 F.2d 803, 804 (5th Cir. 1991)). “In cases
involving corporations, ‘allegations of citizenship must set forth the
state of incorporation as well as the principal place of business of each
corporation.’” Arnold Refrigeration, Inc. v. Quality Custom Distribution
Servs., Inc., No. 5:15-CV-00591-RP, 2015 WL 6690133, at *2 (W.D. Tex.
Oct. 30, 2015) (citing Getty Oil Corp., a Div. of Texaco v. Ins. Co. of N.
Am., 841 F.2d 1254, 1259 (5th Cir. 1988)).
“These rules are straightforward, and the law demands strict
adherence to them.” Getty Oil Corp., 841 F.2d at 1259. “[A] failure to
adequately allege the basis for diversity jurisdiction ‘mandates
dismissal.’” Menendez v. Wal-Mart Stores, Inc., 364 F. App’x 62, 65 (5th
Cir. 2010) (citing Stafford, 945 F.2d at 805).
The Motion and subsequent briefing discuss only whether
Plaintiff’s nonsubscriber negligence claim is removable pursuant to 28
U.S.C. § 1445(c). Neither party mentions jurisdiction in their respective
briefs, and Plaintiff does not appear to contest jurisdiction. However,
after reviewing the pertinent documents, the Court finds that the
Notice of Removal itself failed to adequately allege grounds on which
the Court can exercise diversity jurisdiction over this matter.2 Thus,
the Court concludes that the Motion to Remand should be granted.
The Court’s Discretion to Remand
As an initial matter, it is important to ensure that the Court has
discretion to remand the case based on a defect in the Notice of Removal
that Plaintiff did not mention in its Motion. The Fifth Circuit has made
clear that a failure to allege sufficient jurisdictional facts in a notice of
removal is a procedural defect rather than a jurisdictional one. In re
Allstate Ins. Co., 8 F.3d 219, 222 (“[F]ailure to allege, in its notice of
removal, the plaintiff’s citizenship at the time the original petition was
The Court makes no comment on the legal substance of Plaintiff’s
Motion because of its decision regarding the separate procedural issue
of failing to properly allege jurisdictional information.
filed constitutes a procedural, rather than jurisdictional, defect.”).
District courts do not have discretion to remand a case sua sponte due
to procedural defects. Id. (There is no “discretion in the district court to
remand for procedural defects on its own motion.”).
However, when a party properly moves for remand pursuant to 28
U.S.C.A. § 1447(c), district courts do have authority to consider
procedural defects not raised in the moving party’s motion. See
Schexnayder v. Entergy Louisiana, Inc., 394 F.3d 280, 283 (5th Cir.
2004) (rejecting the argument that “a district court is not authorized
under § 1447(c) to remand a case for reasons that are not listed in the
original motion for remand”). The court in Schexnayder drew a
distinction between cases where plaintiffs had filed a motion to remand,
and cases where they had not and the district court remanded sua
sponte. The court noted that the prohibition against sua sponte remand
was based on a concern over “depriv[ing] both sides of their preferred
forum” where it is unknown whether the plaintiff may ultimately
“acquiesce[ ] in federal jurisdiction.” Id. at 285. However, once the
plaintiff has filed a motion to remand “the concern [over] ‘depriv[ing]
both sides of their preferred forum’ . . . is baseless” because the moving
party has indicated their opposition to removal. Id. (quoting Whole
Health Chiropractic & Wellness, Inc. v. Humana Med. Plan, Inc., 254
F.3d 1317, 1320 (11th Cir. 2001)). This alleviates the concern of district
courts “usurping” the parties’ joint decisionmaking regarding forum
because one party has “explicitly refused to ‘acquiesce’ to the choice of
forum.” Id. at 284–85. Thus, a district court that “raises an issue on
its own initiative” in remanding a case—as long as there is a properly
filed motion to remand—does not abuse its discretion to remand. Id. at
Deficient Jurisdictional Allegations
In the Notice of Removal, Defendant provides only a brief
summary of the provisions of 28 U.S.C. § 1332, stating that the Court
“has diversity jurisdiction over actions between citizens of different
states where the amount in controversy . . . exceeds $75,000.” Not.
Removal 2. However a brief summary of jurisdictional requirements,
without any further factual elaboration regarding how the parties fulfill
those requirements, is insufficient to adequately allege subject-matter
jurisdiction over a removed case. See Moore v. Gladiator Events, LLC,
No. 3:15-CV-01877-M, 2015 WL 5459625, at *2 (N.D. Tex. Sept. 15,
2015) (“Because, in its Original Notice, Gladiator provided only its place
of legal organization and principal place of business, and not the
citizenship of its members, Gladiator failed properly to allege complete
diversity.”); ALMS, Ltd., L.L.P. v. Guzman, No. CIV.A.3:98-CV-1798-G,
1998 WL 684245, at *1 (N.D. Tex. Sept. 25, 1998) (“Because Guzman’s
allegation fails to properly describe ALMS’s place of citizenship, it
cannot support removal on the basis of diversity jurisdiction.”); Ditcharo
v. Wal-Mart Stores E., LP, No. 1:15-CV-312-HSO-JCG, 2015 WL
7078761, at *3 (S.D. Miss. Nov. 13, 2015) (remanding a case where the
defendant stated that citizenship of a limited partnership is “based
upon the citizenship of each of its partners,” but failed to actually allege
the citizenship of any of its partners).
Here, Defendant failed to identify the state where Plaintiff is a
citizen, the state where Defendant is a citizen, or where Defendant’s
principal place of business is located. Thus, Defendant did not comply
with the Fifth Circuit’s clear mandate to “distinctly and affirmatively
allege” the citizenship of the parties. Howery, 243 F.3d at 919.
Further, Defendant makes no mention of the specific amount in
controversy in this dispute. Again, this does not demonstrate “strict
adherence” to the pleading requirements in a notice of removal. Getty
Oil Corp., 841 F.2d at 1259. Thus, the Court concludes that Defendant
did not adhere to proper procedure in removing this case, and therefore
that Plaintiff’s Motion should be granted.3
Amendment of the Notice of Removal
The Court recognizes that “[d]efective allegations of jurisdiction
may be amended, upon terms, in the trial or appellate courts.” 28
U.S.C. § 1653; see also Menendez, 364 F. App’x at 66 (“[T]he district
court did not abuse its discretion by allowing the defendants to amend
their notice of removal to allege facts supporting diversity
jurisdiction.”). The Court also understands that many other district
courts frequently allow defendants to submit amendments or further
information to cure deficient allegations. See, e.g., Moore, 2015 WL
5459625 at *3–4 (granting a motion to amend the notice of removal
A recent case that both Plaintiff and Defendant cite and attach as an
exhibit to their respective briefs provides an example of how
jurisdictional information should be presented in a notice of removal.
See Casas v. R&L Carriers, Inc., No. EP-17-CV-122-PRM, slip op. (W.D.
Tex. June 12, 2017). The notice of removal in Casas clearly set forth the
plaintiff’s citizenship, the defendant’s citizenship (including the
principal place of the business and the place of incorporation), and the
alleged amount in controversy. See Not. Removal, Apr. 21, 2017, EP-17CV-122-PRM, ECF No. 1. Accordingly, the Court denied remand in that
case after carefully considering the arguments presented by the parties.
where the initial jurisdictional allegations were “defective”); Molina v.
Wal-Mart Stores Texas, L.P., 535 F. Supp. 2d 805, 807 (W.D. Tex. 2008)
(“[B]y submitting [an] affidavit, Defendant has remedied its failure to
set forth the citizenship of its members in its Notice of Removal.”).
However, it has been well over a month since Defendant filed its Notice
of Removal (filed September 11, 2017). Plaintiff filed a Motion to
Remand that is now ripe for review after both sides were afforded a full
briefing schedule. Despite ample opportunity and time, Defendant has
not moved to amend its Notice of Removal. Without a request to amend
the deficient Notice of Removal, the Court declines to correct the
defective Notice for the Defendant. Thus, the Court has no option but
to remand this case for failure to properly allege jurisdiction.
The Court finds that the Notice of Removal is defective due to
Defendant’s failure to distinctly and affirmatively allege facts
supporting diversity jurisdiction.
Accordingly, IT IS ORDERED that Plaintiff Brenda Martinez’s
“Motion to Remand” (ECF No. 5) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Brenda Martinez’s
claim is REMANDED to the El Paso County Court at Law Number Six,
under Cause Number 2017-DCV-2601.
SIGNED this 30th day of October, 2017.
PHILIP R. MARTINEZ
UNITED STATES DISTRICT JUDGE
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