Feinberg v. Costco Wholesale Corp

1

PAULA FEINBERG, Plaintiff, v. COSTCO WHOLESALE CORPORATION d/b/a COSTCO, ROB BARNES, ERIC DOE EMPLOYEE, JAKE DOE EMPLOYEE, JOHN DOE EMPLOYEES 1-6, and JANE DOES 5-10, Defendants.

No. 3:23-cv-1157-BN

United States District Court, N.D. Texas, Dallas Division

August 29, 2023

MEMORANDUM OPINION AND ORDER

DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Paul Feinberg has filed an Opposed Motion to Remand, alleging that the amount-in-controversy requirement to establish diversity jurisdiction has not been met. See Dkt No. 7.

Defendants Costco Wholesale Corporation and Rob Barnes filed a response. See Dkt. No. 9.

Feinberg did not file a reply, and the time to do so has passed.

For the reasons explained below, the Court grants Plaintiff's Opposed Motion to Remand [Dkt. No. 7].

Background

As Feinberg has summarized, she commenced an action against Defendants in the County Court at Law No. 2 of Dallas County Texas, Cause No. CC-23-00745-B, on or around February 8 2023. In her Original Petition, (“Petition”) Plaintiff claims that she was injured while standing in line at a Costco Wholesale Corporation (“Costco”) store on April 29, 2021, when a plexi-glass partition fell and landed on the Plaintiff, hitting the right side of her head and right shoulder. As a result, Plaintiff alleges “serious bodily injuries”. As such, Plaintiff has asserted claims against Defendants Costco Wholesale Corporation and Rob Barnes (and additional John and Jane Does) for negligence, gross negligence, negligent training, negligent supervision and negligence under a premises liability theory. In her Petition, Plaintiff seeks damages for mental anguish, physical pain and suffering, physical impairment, and physical disfigurement, all past and future.

Dkt. No. 5 at 1-2. In Plaintiff's Original Petition filed in state court, she pleads that “Plaintiff seeks monetary relief under $75,000.00.” Dkt. No. 1-2 at 4 of 11. She also alleges gross negligence and seeks “exemplary damages” and “reasonable attorneys' fees.” Id. at 9-11 of 11.

Defendants Costco Wholesale Corporation and Rob Barnes have reported that “Defendant Rob Barnes denies that he is a proper party to this action and/or are liable in the capacity in which he is sued” and allege that “Defendant Rob Barnes is not a proper party to this action and has been fraudulently joined for the purpose of defeating diversity jurisdiction.” Dkt. No. 5 at 2. In their Notice of Removal, Costco and Barnes assert that Feinberg cannot recover from Barnes”; that “[a]ll allegations against Barned are in his role as Costco's agent/employee”; that “[t]here are no independent allegations of liability against him separate from those made against Costco as the corporate entity”; and that, “[a]ccordingly, Barnes was fraudulently joined, and his citizenship cannot be taken into account for purposes of determining diversity.” Dkt. No. 1 at 10-11 (footnote omitted).

As for the amount-in-controversy requirement, Costco and Barnes alleged in their Notice of Removal that

The facts in controversy show that the amount in controversy exceeds $75,000.00.

a. The party seeking federal jurisdiction must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000.00. Grant v. Chevron Phillips Chem. Co. L.P., 309 F.3d 864, 868 (5th Cir. 2002). The removing party may satisfy its burden by either (1) demonstrating that it is “facially apparent” from the petition that the claim likely exceeds $75,000.00 or (2) “by setting forth the facts in controversy - preferably in the removal petition, but sometimes by affidavit - that support a finding of the requisite amount.” Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

b. If a defendant can produce evidence that establishes the actual amount in controversy exceeds the jurisdictional threshold, a plaintiff must be able to show that, to a legal certainty, he or she will not be able to recover more than the damages for which he or she has prayed in the state court complaint. See De Aguilar, 47 F.3d at 1409. To determine the amount in controversy, the court may consider “penalties, statutory damages, and punitive damages.” St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); see Ray v. State Farm Lloyds, No. 3;98-CV1288-G, 1999 WL 151667, at 2-3 (N.D. Tex. Mar. 10, 1999)(finding a sufficient amount in controversy in plaintiff's case against his insurance company).

c. Here, the facts in controversy, in particular the damages sought in Plaintiff's Original Petition, demonstrate that her claim exceeds $75,000.00. See generally Exhibit A-1. In her Petition, Plaintiff seeks recovery for mental anguish, physical pain and suffering, physical impairment, physical disfigurement, all past and future, exemplary damages, attorney's fees, court costs, and pre- and post-judgement interest. Id. at P. 9-10. Plaintiff's pleading of damages thus indicates an amount in controversy greater than the $75,000 jurisdictional threshold. Troiani v. Allstate Ins. Co., No. CIV-B-06-00067, 2006 WL 1851378, at *4 (S.D. Tex. July 3, 2006)(finding that the combination of the plaintiff's claim of maximum recovery of $70,000 plus claims for additional attorneys' fees and exemplary damages clearly illustrated that the amount in controversy exceeded $75,000).

d. In addition, Plaintiff has sought to avoid the removal of this matter by violating Rule 47 of the Texas Rules of Civil Procedure and has filed no binding stipulation or affidavit limiting damages to below the jurisdictional threshold with her petition. See De Aguilar, 47 F.3d at 1410, 1412; Cavazos v. Allstate Vehicle & Prop. Ins. Co., No. 7:17-CV-368, 2017 WL 11317904 at *2 (S.D. Tex. Dec. 12, 2017); Crixell, No. 7:14-CV-169, 2014 WL 12605586, at *3. In fact, the opposite is the case, as Plaintiff's counsel expressly stated that Plaintiff could not agree to enter into a stipulation limiting damages to below $75,000.00. See Exhibit A-2.

e. Further, “a simple allegation in a state-court petition that a plaintiff seeks less than the jurisdictional threshold, without more, is insufficient to defeat diversity jurisdiction... [H]ere, a Plaintiff submitted no binding stipulation or affidavit with his complaint”. Hayes v. Bank of Am. N.A., No. 3:18-cv-3238-B, 2019 WL 585445, at *4 (N.D. Tex. Feb. 13, 2019); Hamilton v. Mike Bloomberg 2020 Inc., 474 F.Supp.3d 836, 844 (N.D. Tex. 2020).

f. Thus, taking into consideration (1) the categories of damages asserted in Plaintiff's pleading, and (2) Plaintiff's failure to provide a binding stipulation or affidavit (just as in Hayes cited above), Defendant has thus proven the amount in controversy exceeds $75,000.00.

14. Because this civil action only involves citizens of different states and the amount in controversy exceeds $75,000.00, this Court has original jurisdiction pursuant to 28 U.S.C. §1332(a) and removal is proper under 28 U.S.C. §1441.

Dkt. No. 1 at 11-12.

Legal Standards and Analysis

For a federal court to have jurisdiction over a state action based on diversity, each plaintiff's citizenship must be diverse from each defendant's citizenship, and the amount in controversy must exceed $75,000. See 28 U.S.C. §§ 1332(a), (b).

“The party seeking to remove bears the burden of showing that federal jurisdiction exists and that removal was proper.” Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013). And, so, “[a]s the party seeking removal, Defendants bear the burden of proving both” complete diversity and that the amount in controversy satisfied the jurisdictional minimum. Hood ex rel. Miss. v. JP Morgan Chase & Co., 737 F.3d 78, 85 (5th Cir. 2013).

I. Amount in Controversy

Turning first to the amount-in-controversy requirement, “[t]here is a framework for resolving disputes over the amount in controversy. If the plaintiff's state court petition specifies a dollar amount of damages, that amount controls if made in good faith.” Guijarro v. Enter. Holdings, Inc., 39 F.4th 309, 314 (5th Cir. 2022) (cleaned up); accord Durbois v. Deutsche Bank Nat'l Tr. Co. as Tr. of Holders of AAMES Mortg. Inv. Tr. 20054 Mortg. Backed Notes, 37 F.4th 1053, 1056 (5th Cir. 2022) (28 U.S.C. § 1446(c)(2) “thus sets a general rule that ‘the sum demanded in good faith in the initial pleading' is ‘the amount in controversy'” (quoting 28 U.S.C. § 1446(c)(2))).

But 28 U.S.C. § 1446(c)(2) “provides two exceptions to that general rule: (i) the plaintiff's operative state-court pleading at the time of removal seeks nonmonetary relief; or (ii) that pleading seeks a money judgment, and the State ‘does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded.'” Durbois, 37 F.4th at 1056 (quoting 28 U.S.C. § 1446(c)(2)(A)).

If either exception is shown, then the defendant's [plausible] amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court. When the defendant's allegation is questioned, both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.

Id. (cleaned up).

Likewise, “[i]f the petition is silent (as is often the case in state courts in our jurisdiction), the defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000.” Guijarro, 39 F.4th at 314 (cleaned up). But, in any event, the removing defendant bears the burden of proof, and

[t]he defendant can meet that burden in one of two ways: (1) by establishing that it is “facially apparent” that the claims are likely to exceed $75,000, or (2) by setting forth the facts in controversy that support a finding of the requisite amount.

Guijarro, 39 F.4th at 314 ...