Gonzalez v. Wal-Mart Stores, Tex., LLC, Civ. A. H-14-2880

CORNELIO GONZALEZ, Plaintiff, v. WAL-MART STORES, TEXAS, LLC, Defendant.

Civ. A. H-14-2880

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

June 9, 2015

OPINION AND ORDER

Pending before the Court in the above referenced cause, removed from state court on October 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 (instrument #9).

Substantive Law

The right to remove depends upon the plaintiffs' 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 (5^th Cir. 1995); Ford v. Property & Cas. Ins. Co. of Hartford, No. Civ. A. H-09-1731, 2009 WL 4825222, *2 (S.D. Tex. Dec. 9, 2009).

Under 28 U.S.C. § 1441(a)¹ any state court action overwhich 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 (5^th Cir. 2007; Guttierrez v. Flores, 543 F.3d 248, 251 (5^th Cir. 2008)("A district court has removal jurisdiction in any case where it has original jurisdiction.").

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 (5^th Cir. 2002). Any doubts are construed against removal because the removal statute is strictly construed in favor of remand. Id. 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 properly before it, removal raises significant federalism concerns.' 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 (5^th Cir. 1995). Furthermore, "[i]f at any time before final judgment it appears that the district court lacks jurisdiction, the case shall be remanded." 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 costs. Under 28 U.S.C. § 1441(b), when original federaljurisdiction 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 brought."

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. In re Shell Oil Co., 932 F.2d 1518, 1522 (5^th Cir. 1991).² 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 §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 cited therein). 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 section 1446(b)." Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5^th Cir. 2002).

In addition, "all defendants who have been properly joined and served must join in or consent to the removal of the action." 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 (5^th Cir. 2009). The removal is procedurally defective if such consent is not timely obtained. Doe v. Kerwood, 969 F.2d 165, 167-69 (5^th 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 (5^th Cir. 1998). An exception to this rule of joint consent is that nominal or formal parties need not join in the removal petition. In re Beazley, No. 09-20005, 2009 WL 7361370, at *4 (5^th Cir. May 4, 2009)("To establish the 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 the non-removing defendants in state court. In 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 if its role is restricted to that of a 'depository or 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 Retardation Services, 925 F.2d 866, 871 (5^th Cir. 1991)("To 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 (5^th Cir. 2006).

Gonzales's Motion to Remand (#9)

Gonzales moves for remand first on the grounds that Wal-Mart 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 samedate 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."" Gonzalez 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 untimelybecause 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 (5^th 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 interrogatory. 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 plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court." Id. at 163, reaffirmed, Mumfrey v. CVS Pharmacy, Inc. 719 F.3d 392, 399-400 (5^th 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 onAugust 16, 2010. Only on November 10, 2010 did Morse provide the insurance company with a letter stating that she sought $225,000 in damages....