Gallodoro v. Walter Isaacson, LLC

EASTERN DISTRICT OF LOUISIANA

JUSTIN GALLODORO CIVIL ACTION

VERSUS NO. 20-2163

WALTON ISAACSON, LLC, ET AL. SECTION: “G”(1)

ORDER

This action arises out of a slip-and-fall accident in New Orleans, Louisiana.1 On July 2,

2020, Plaintiff Justin Gallodoro (“Plaintiff”) originally filed this action against Defendants SMG,

SMG Holdings LLC, SMG Holdings I, LLC, and Walton/Isaacson, LLC (collectively,

“Defendants”) in state court.2 Defendants recently removed the action from state court to this

Court—asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332.3

Yet this Court noticed that it may not have subject matter jurisdiction over the above-

captioned matter. The Court must address the jurisdiction issue sua sponte.4 A “party may neither

consent to nor waive federal subject matter jurisdiction.”5 Instead, a federal court has subject

matter jurisdiction over an action when, for example, the case “is between citizens of different

1 Rec. Doc. 1-1.

2 Id. Plaintiff also named several fictious insurance companies as defendants. Such insurance companies are

not pertinent for this jurisdictional briefing order. See 28 U.S.C. § 1441(b)(1) (“In determining whether a civil action

is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued

under fictitious names shall be disregarded.”).

3 Rec. Doc. 1.

4 Gasch v. Hartford Acc. & Idem. Co., 491 F.3d 278, 281 (5th Cir. 2007) (quoting Ruhrgas AG v. Marathon

Oil Co., 526 U.S. 574, 583 (1999)) (“[S]ubject matter delineations must be policed by the courts on their own

initiative.”).

5 Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999).

proving diversity jurisdiction “rests upon the party who seeks to invoke the court’s diversity

jurisdiction.”7 Here, Defendants fail to adequately demonstrate (1) complete diversity and (2) an

amount in controversy exceeding $75,000.

I. Complete Diversity

Complete diversity between the parties is present when “all persons on one side of the

controversy [are] citizens of different states than all persons on the other side.”8 When “jurisdiction

depends on citizenship, citizenship must be distinctly and affirmatively alleged.”9 Under the Fifth

Circuit’s precedent, a limited liability company’s citizenship—and a partnership’s citizenship—is

“determined by the citizenship of all of its members.”10 In the Notice of Removal, Defendants fail

to adequately plead the citizenship of each member of the following defendant entities: SMG (a

partnership); SMG Holdings, LLC; and SMG Holdings, I, LLC.11 Thus, the Court cannot

determine whether it has diversity jurisdiction over the above-captioned matter.

II. Amount in Controversy

Generally, a defendant may remove a civil action filed in state court if the federal court has

original jurisdiction over the action.12 When asserting diversity jurisdiction, a removing

6 28 U.S.C. § 1332(a)(1).

7 Getty Oil Corp., a Div. of Texaco Inc. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988).

8 Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008) (internal quotation marks

omitted).

9 Getty Oil, 841 F.2d at 1259.

10 Harvey, 542 F.3d at 1079–80; Moss v. Princip, 913 F.3d 508, 514 (5th Cir. 2019) (“For the purposes of

diversity jurisdiction, a partnership is a citizen of every state in which one of its partners or members is a citizen.”).

11 Rec. Doc. 1.

12 See 28 U.S.C. § 1441(a). Furthermore, “removal statute[s] should be strictly construed in favor of

on whether the plaintiff alleges a specific amount of monetary damages.13 When the plaintiff

alleges a damage amount exceeding the jurisdictional amount, “that amount controls if made in

good faith.”14 On the other hand, if the plaintiff pleads a damage amount that does not exceed the

jurisdictional amount, that figure will control and thus prohibit removal.15 “Thus, in the typical

diversity case, the plaintiff remains the master of [the] complaint.”16

Yet Louisiana law generally does not allow a plaintiff to plead a specific amount of

damages.17 Where, as here, the plaintiff alleges an indeterminate amount of damages, the Fifth

Circuit requires the removing defendant to prove by a preponderance of the evidence that the

amount in controversy exceeds $75,000.18 A defendant satisfies this burden either “(1) by

demonstrating that it is facially apparent that the claims are likely above $75,000, or (2) by setting

forth facts in controversy—preferably in the removal petition, but sometimes by affidavit—that

support a finding of the requisite amount.”19

In this case, Plaintiff does not plead a specific amount of monetary damages.20 Defendants

remand.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

13 Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

14 Id. (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).

15 Id.

16 Id.

17 See La. Code Civ. P. art. 893.

18 Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000); see also Simon, 193 F.3d at 850;

Allen, 63 F.3d at 1335.

19 Simon, 193 F.3d at 850 (quoting Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999)); see also

Allen, 63 F.3d at 1335.

20 Rec. Doc. 1-1.

exceeds $75,000.”21 In support, Defendants point out that Plaintiff allegedly sustained the

following damages: “[i]njuries to the Achilles tendon and heel of the right ankle; “[s]welling in

the right ankle”; “[n]umbness in the right foot”; “[s]triking his head on the floor and sustaining a

concussion”; “[m]emory loss associated with headaches”; “low back pain”; “[h]erniated disc at

L3-4”; “pain radiating into the right leg and foot”; and “[p]ermanent functional and/or anatomical

disability.”22

Considering those allegations, it is not facially apparent that the alleged damages—more

likely than not—exceed $75,000. Without additional information, the Court cannot determine

whether the amount in controversy exceeds $75,000. The Fifth Circuit has instructed that “[i]n

situations where the facially apparent test is not met, the district court can then require parties to

submit summary-judgment-type evidence, relevant to the amount in controversy at the time of

removal.”23 Accordingly,

21 Rec. Doc. 1 at 6.

22 Id.

23 Allen, 63 F.3d at 1336.

IT IS HEREBY ORDERED that Defendants submit briefing regarding the citizenship of

SMG, SMG Holdings, LLC, and SMG Holdings, I, LLC on or before August 19, 2020.

IT IS FURTHER ORDERED that Defendants submit summary-judgment-type evidence

regarding the amount in controversy”* to the Court on or before August 19, 2020.

NEW ORLEANS, LOUISIANA, this Sth day of August, 2020.

NANNETTE JOLIVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT JUDGE

4 Defendants must submit summary-judgment-type evidence regarding the amount in controversy at the

time of removal.