Dragicevic v. DG Louisiana, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SHARRON DRAGICEVIC CIVIL ACTION

VERSUS NO. 22-152

DG LOUISIANA, LLC, ET AL. SECTION A(5)

ORDER AND REASONS

The following motion is before the Court: Motion to Remand (Rec. Doc. 13) filed by Plaintiff,

Sharron Dragicevic. Defendants, DG Louisiana, LLC and Dolgencorp, LLC., oppose the motion. The

motion, noticed for submission on April 13, 2022, is before the Court on the briefs without oral

argument.

This suit arises out of a slip and fall that occurred at a Dollar General Store on August 24,

2020, in Tangipahoa Parish. Plaintiff alleges that she slipped in either dishwashing detergent or some

other slippery substance that should not have been on the floor. (Rec. Doc. 1-1, Petition ¶ IV). Plaintiff

filed suit in state court. Her petition recites the typical list of personal injury damages.

Defendants removed the suit to this Court alleging diversity jurisdiction. Relying on the “other

paper” rule, see 28 U.S.C. § 1446(b)(3), Defendants assert that even though it was not facially

apparent from the original petition that the amount in controversy exceeded the jurisdictional

minimum, certain answers to discovery that Defendants received in December 2021 demonstrate that

the jurisdictional amount for federal subject matter jurisdiction is satisfied.

Plaintiff now moves to remand the suit to state court arguing that Defendants have not met

their burden to establish that the amount in controversy requirement is met. See 28 U.S.C. §

1332(a)(3) (providing original subject matter jurisdiction where the matter in controversy exceeds the

sum of $75,000 and the matter is between citizens of different states).

In Luckett v. Delta Airlines, Inc., the Fifth Circuit summarized the analytical framework for

determining whether the amount in controversy requirement is met in cases removed from Louisiana

state courts where specific allegations as to damage quantum are not allowed. 171 F.3d 295, 298 (5th

Cir. 1999). In such cases, the removing defendant, as the party invoking the federal court=s

jurisdiction, bears the burden of proving, by a preponderance of the evidence, that the amount in

controversy exceeds $75,000. Id. (citing De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993)). As

the Fifth Circuit explained:

The defendant may make this showing in either of two ways: (1) by demonstrating that

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

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

support a finding of the requisite amount.

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

If it is facially apparent from the petition that the amount in controversy exceeds $75,000 at the

time of removal, post-removal affidavits, stipulations, and amendments reducing the amount do not

deprive the district court of jurisdiction. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.

2000) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938)).

The Court agrees with Defendants’ assertion that it was not facially apparent from the original

petition that the amount in controversy requirement would be met in this case.

To satisfy their burden as to the amount in controversy, Defendants included in the notice of

removal other facts in controversy that they learned about in discovery: After the fall Plaintiff left the

store in an ambulance; she injured her left hip, left leg, neck, left shoulder, and the left side of her

body; Plaintiff was treated by a pain management specialist and was still being treated more than a

year after the fall; Plaintiff would not concede that her claim does not exceed $75,000.

Plaintiff included with her motion to remand a copy of the discovery responses that

Defendants rely upon and the Court agrees with Plaintiff’s contention that the discovery responses

are insufficient to establish that the amount in controversy was satisfied at the time of removal, which

is the only relevant timeframe. See Allen v. R& H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)

(explaining that the jurisdictional facts that support removal must be judged at the time of the removal

not afterward). Moreover, those same discovery responses indicate that Plaintiff was not employed at

the time of the incident and was receiving social security benefits thereby negating the possibility of a

claim for lost wages. (Rec. Doc. 13-2 at 4). The medical expenses of record are minimal considering

how long ago the incident occurred, and the ongoing treatment since the time of the accident has

been pain management. (/d. at 7).

Defendants’ request to conduct jurisdictional discovery should the Court be inclined to grant

the motion to remand is denied. The removing party should expect a motion to remand to be filed and

should be prepared to meet its burden of proof without later seeking to obtain discovery in a federal

court where there is a presumption against subject matter jurisdiction.’ See Coury v. Prot, 85 F.3d

244, 248 (5" Cir. 1996). Further, allowing such discovery would violate the overarching principle that

all doubts regarding removal must be resolved against federal jurisdiction. Acuna v. Brown & Root,

Inc., 200 F.3d 335, 339 (5* Cir. 2000).

Accordingly, and for the foregoing reasons;

IT IS ORDERED that the Motion to Remand (Rec. Doc. 13) filed by the plaintiff, Sharron

Dragicevic, is GRANTED. This matter is REMANDED to the state court from which it was removed

for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1

April 20, 2022 : } C. Mn :

JUDGE JAY ©; EY

UNITED STATES DISTRICT JUDGE

‘ The Court also has a duty to sua sponte question jurisdiction even if no motion to remand is filed.

See Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5" Cir. 2001) (citing Kidd v. Southwest Airlines, Co.,

891 F.2d 540, 546 (5" Cir.1990)).

Page 3 of 3