Veach v. Kroger Tex., L.P.

DOROTHY E. VEACH, Plaintiff, v. KROGER TEXAS, L.P., Defendant.

Civil Action No. 3:20-CV-3625-L

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

April 29, 2021

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiff's Amended Motion to Remand (Doc. 9), filed December 30, 2020. After careful consideration of the motion, response,^* record, and applicable law, the court remands this action to the 14th Judicial District Court of Dallas County, Texas, not because the removal was untimely, but because diversity jurisdiction has not been established by Defendant Kroger Texas, L.P., and the action, therefore, is not removable.

I. Procedural Background

Dorothy E. Veach ("Plaintiff" or "Ms. Veach") originally filed this action on February 21, 2020, against Kroger Texas, L.P. ("Defendant" or "Kroger") in the 14th Judicial District Court of Dallas County, Texas. Ms. Veach contends in Plaintiff's Original Petition ("Petition") that she was injured in a Kroger's store located at 4142 Cedar Springs Road, Dallas, Texas, on September 19, 2019, when she slipped and fell on water left on the floor in an aisle of the store. Id. at 2, ¶ 6. She sued under a theory of premises liability. Ms. Veach contends that she "suffered severe physical injuries," and she seeks damages for "a. [p]hysical pain and mental anguish in the past and future; b. [m]edical expenses in the past and future; and c. [p]hysical impairment." Id. at 3, ¶11(a.-c.). In her Petition, she seeks" [o]nly monetary relief over $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest and attorney fees ...." Id. ¶ 12(d).

At the time Plaintiff's Petition was filed, Texas Rule of Civil Procedure 47(c) provided that, "except for suits governed by the Family Code," the original pleading must contain "a statement that the party seeks" the following:

(1) only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or

(2) monetary relief of $100,000 or less and non-monetary relief; or

(3) monetary relief over $100,000 but not more than $200,000; or

(4) monetary relief over $200,000 but not more than $1,000,000 or

(5) monetary relief over $1,000,000 ....

Id. The confusing and contradictory language used by Ms. Veach falls into none of these categories. Thus, it was unclear at the time she filed her Petition whether the amount in controversy exceeded $75,000, exclusive of interest and costs.

Because of the confusing language used by Plaintiff, Kroger attempted to determine whether she sought damages in excess of $75,000, which is the jurisdictional threshold for diversity jurisdiction. To determine whether Plaintiff was seeking in excess of $75,000, Kroger sent Plaintiff a request for admissions to admit that she was "seeking damages in excess of $75,000, exclusive of interest and costs." Def.'s App. 007. In response, Ms. Veach, stated, "Plaintiff can neither admit [n]or deny because Plaintiff does not know." Id. This response or answer was made on July 22, 2020.

After several months of discovery had occurred, on December 3, 2020, Defendant sent a letter that included a proposed stipulation to Plaintiff's counsel. The letter includes in pertinent part the following language:

On February 21, 2020, Plaintiff filed her Original Petition in the 14th District Court, Dallas County, Texas, seeking to recover monetary damages from Defendant, to include amounts for past and future: medical expenses, physical pain, mental anguish, and physical impairment.

Plaintiff's Original Petition asserts that the amount in controversy is [over] $100,000 or less. However, that does not make clear whether Plaintiff is seeking damages in an amount of $75,000 or less. In order to clarify same, Defendant propounded a Request for Admission, requesting that Plaintiff admit that she is seeking damages in an amount of $75,000 or less. Plaintiff responded by stating as follows: "Plaintiff can neither admit or deny because Plaintiff does not know."

As such, Defendant is unable to determine whether Plaintiff seeks recovery from Defendant in excess of $75,000, exclusive of interest and costs, as is the amount-in-controversy threshold for removal. Consequently, in order for Defendant to ascertain the actual amount in controversy, Defendant respectfully requests that Plaintiff stipulate that she is not seeking, and she will not amend her Petition in the future to seek, damages in excess of $75,000, exclusive of interest and costs.

Further, Defendant respectfully requests that Plaintiff stipulate that in the event a jury awards her more than $75,000 in damages, Plaintiff agrees and stipulates to a remittitur that establishes the total damages awarded to Plaintiff will be capped at $75,000, exclusive of interest and costs.

If the above stipulations are agreeable, please sign below where indicated and return this letter agreement to my attention as soon as possible. If we do not hear back from you by December 10, 2020, we will assume that Plaintiff refuses to stipulate.

Please be advised that case law within the Fifth Circuit supports the argument that a plaintiff's refusal to stipulate that she will not amend her petition or otherwise limit her recovery to $75,000, exclusive of interest and costs, will establish by a preponderance of the evidence that the plaintiff's claim is removable under 28 U.S.C. §§ 1332, 1441 and 1446. Accordingly, if Plaintiff fails and refuses to enter this stipulation, we intend to use such failure and refusal to establish that the amount in controversy actually exceeds $75,000, exclusive of interest and costs.

Id. at 1-2. When Plaintiff's counsel did not respond to the letter by December 10, 2020, Kroger removed the state court action to federal court on December 11, 2020. As the removal was effected within 30 days of the deadline set forth in the letter, Kroger contends that the removal was timelyand that the court should not remand the action to state court because the refusal of Plaintiff to stipulate established that the jurisdictional threshold had been met.

This action should be remanded but not because it was untimely removed to federal court, as asserted by Ms. Veach. Also, it should not remain in federal court, as the amount in controversy was not established by Kroger at the time of removal—or at the time Plaintiff's counsel did not respond to the proposed stipulation in December 2020—and, therefore, the court lacks jurisdiction to hear this action. In other words, this action should not have been removed to federal court.

II. Jurisdiction of Federal Courts

A federal court has subject matter jurisdiction over civil cases "arising under the Constitution, laws, or treaties of the United States," and over civil cases in which the amount in controversy exceeds $75,000, exclusive of interest and costs, and in which diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited jurisdiction and must have statutory or constitutional power to adjudicate a claim. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (citations omitted); Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by statute or the Constitution, they lack the power to adjudicate claims and must dismiss an action if subject matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). A federal court must presume that an action lies outside its limited jurisdiction, and the burden of establishing that the court has subject matter jurisdiction to entertain an action rests with the party asserting jurisdiction. Kokkonen, 511 U.S. at 377 (citations omitted). "[S]ubject-matter jurisdiction cannot be created by waiver or consent." Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).

Federal courts may also exercise subject matter jurisdiction over a civil action removed from a state court. Unless Congress provides otherwise, a "civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a).

The parties do not dispute that there is complete diversity of citizenship between the parties. Moreover, the court expressly determines that Ms. Veach is a citizen of Texas, and Kroger is a citizen of Ohio and that complete diversity, therefore, exists. As none of the parties shares the same citizenship, the court turns its attention to whether the amount-in-controversy requirement has been met.

For diversity purposes, the amount in controversy normally is determined by the amount sought on the face of the plaintiff's pleadings, so long as the plaintiff's claim is made in good faith. 28 U.S.C. § 1446(c)(2); Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553 (2014) (citation omitted); St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Removal is thus proper if it is "facially apparent" from the complaint that the claim or claims asserted exceed the jurisdictional amount. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.), reh'g denied, 70 F.3d 26 (5th Cir. 1995).

"[A] defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold." Dart, 135 S. Ct. at 554. Further, "[e]vidence establishing the amount is required by § 1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant's allegation." Id.

In a removed case, when the complaint or pleading does not state a specific amount of damages...