Foster v. Dollar Tree Stores, Inc.

Filing 12

REPORT AND RECOMMENDATIONS re 10 Motion to Remand to State Court filed by Jessie Foster, 1 Notice of Removal, filed by Dollar Tree; The United States District Clerk shall serve a copy of this report and recommendation onall parties by eith er (1) electronic transmittal to all parties represented by attorneys registered as a filing user with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Signed by Judge Elizabeth S. Chestney. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JESSIE FOSTER,
Plaintiff,
vs.
DOLLAR TREE STORES, INC.,
JOHN/JANE DOE,
Defendants.

§
§
§
§
§
§
§
§
§
§

CIVIL NO.
SA-18-CV-00096-FB

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Fred Biery:
This Report and Recommendation concerns Plaintiff’s Response to Defendant’s Notice
of Removal and Plaintiff’s Motion for Remand, and Alternatively Motion to Enter Sua Sponte
Order [#10] and Defendant’s Consent to Plaintiff’s Motion to Remand [#11]. This case was
referred to the undersigned for all pretrial proceedings on February 14, 2018 pursuant to Rules
CV-72 and 1(c) of Appendix C of the Local Rules of the United States District Court for the
Western District of Texas. The undersigned has authority to enter this recommendation pursuant
to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the Court should grant Plaintiff’s
motion and remand this case to the County Court at Law No. 10 in Bexar County, Texas.
I. Analysis
Plaintiff Jessie Foster originally filed this action in the County Court at Law No. 10 in
Bexar County against Defendants Dollar Tree Stores, Inc. d/b/a Dollar Tree and John/Jane Doe.
(Orig. Pet. [#1-3].) In his Original Petition, Plaintiff alleges that he was the victim of a slip-andfall incident at a Dollar Tree store located in San Antonio and accuses Defendants of negligence.
Plaintiff’s Petition seeks $70,000.00 in damages. (Id. at 5.) Defendant Dollar Tree Stores
1

(“Dollar Tree”) removed the Petition to this Court on January 30, 2018 on the basis of diversity
jurisdiction. (Notice of Removal [#1].) In the Notice of Removal, Dollar Tree acknowledged
that Plaintiff is only seeking damages in an amount of $70,000.00, but nonetheless asserted that
Plaintiff’s Petition satisfied the amount-in-controversy requirement set forth in 28 U.S.C. § 1332.
(Id. at ¶¶ 6–9.)
Plaintiff filed his Motion to Remand [#10] on October 3, 2018, arguing that Dollar Tree
failed to establish that the amount in controversy exceeds $75,000.00 for purposes of diversity
jurisdiction.1 Dollar Tree filed its response to the motion [#11] that same day, conceding that the
amount in controversy does not exceed $75,000.00 and agreeing that this action should be
remanded to Bexar County Court at Law No. 10. Accordingly, the Court should grant Plaintiff’s
motion.
II. Conclusion and Recommendations
Having considered Plaintiff’s motion to remand, Defendant’s response in support of
remand, the pleadings, and the governing law, the undersigned recommends that Plaintiff’s
Motion for Remand, and Alternatively Motion to Enter Sua Sponte Order [#10] be GRANTED
and this case be REMANDED to the County Court at Law No. 10 in Bexar County, Texas.
III. Instructions for Service and Notice of Right to Object/Appeal.
The United States District Clerk shall serve a copy of this report and recommendation on
all parties by either (1) electronic transmittal to all parties represented by attorneys registered as
a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified
mail, return receipt requested. Written objections to this report and recommendation must be

1

A motion for remand based on any defect other than lack of subject-matter jurisdiction
must be made within 30 days after the filing of the notice of removal. 28 U.S.C. § 1447(c). A
motion for remand based on lack of subject-matter jurisdiction may be filed at any time. Id.
2

filed within fourteen (14) days after being served with a copy of same, unless this time period is
modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file
the objections with the clerk of the court, and serve the objections on all other parties. A party
filing objections must specifically identify those findings, conclusions or recommendations to
which objections are being made and the basis for such objections; the district court need not
consider frivolous, conclusive or general objections. A party’s failure to file written objections
to the proposed findings, conclusions and recommendations contained in this report shall bar the
party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52
(1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to
file timely written objections to the proposed findings, conclusions and recommendations
contained in this report and recommendation shall bar the aggrieved party, except upon grounds
of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428–29 (5th Cir. 1996) (en banc).
SIGNED this 4th day of October, 2018.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

3