Opinion

Lazard v. Winn-Dixie Montgomery, LLC

Court
District Court, E.D. Louisiana
Filed
Dec 5, 2022
Cited by
0 cases
Authority
More cited than 22.4%

The opinion

EASTERN DISTRICT OF LOUISIANA

LOIS LAZARD CIVIL ACTION

VERSUS NO. 21-1833

WINN-DIXIE MONTGOMERY, LLC SECTION: “G”(1)

ORDER

This personal injury action arises out of an alleged slip and fall at a Winn-Dixie grocery

store.1 Plaintiff Lois Lazard (“Plaintiff”) originally filed this action against Defendant Winn-Dixie

Montgomery, LLC (“Defendant”) in the Civil District Court for the Parish of Orleans, State of

Louisiana.2 Defendant removed the action to this Court, asserting subject matter jurisdiction

pursuant to 28 U.S.C. § 1332.3 Upon review, it came to the Court’s attention that the Court may

not have subject matter jurisdiction over this matter. On October 14, 2021, this Court found that it

was not facially apparent that the amount in controversy exceeds $75,000, and thus ordered the

parties to submit evidence regarding the amount in controversy at the time of removal.4 Having

considered the evidence submitted and the briefing of Defendant, the Court concludes that

Defendant has not established by a preponderance of the evidence that the amount in controversy

exceeded $75,000 at the time of removal. Accordingly, the Court lacks subject matter jurisdiction

over this matter and hereby remands it to state court.

1 Rec. Doc. 1 at 2.

2 Rec. Doc. 1-3.

3 Rec. Doc. 1 at 2.

4 Rec. Doc. 8 at 4–5.

In this litigation, Plaintiff alleges that she was injured while visiting Defendant’s store.5

Plaintiff avers that on June 6, 2020, she was shopping at Defendant’s store when “she tripped and

fell on merchandise boxes strewn about the aisle and on the floor by a store employee.”6 She

alleges that Defendant negligently failed to make her aware of the dangerous condition.7

On May 26, 2021, Plaintiff filed this action in the Civil District Court for the Parish of

Orleans.8 In the petition, Plaintiff alleges that, as a result of the incident, she “required prompt

medical attention, as well as ongoing medical treatment, prescription medication, [and] physical

therapy, all resulting in continued pain and suffering.”9 She seeks damages for past, present, and

future pain and suffering, mental anguish, physical disfigurement, physical impairment, and

medical expenses, as well as pre- and post-judgment interest.10

On October 6, 2021, Defendant removed the case to this Court, asserting diversity

jurisdiction pursuant to 28 U.S.C. § 1332.11 In the Notice of Removal, Defendant alleges that its

citizenship is diverse from Plaintiff’s and asserts that Plaintiff has alleged damages exceeding

$75,000.12 Defendant notes that it sent a Request for Admission to Plaintiff on July 29, 2021,

requesting an admission that “[Plaintiff’s] claim is worth more than $75,000.00, exclusive of

5 Rec. Doc. 1-3.

6 Id. at 2.

7 Id.

8 See id. at 1.

9 Id. at 2.

10 Id. at 3–4.

11 Rec. Doc. 1.

12 Id. at 2–4.

received an answer to the Request for Admission from Plaintiff.14

On October 14, 2021, the Court issued a jurisdictional briefing order.15 The Court held

both that “[i]t is not readily apparent from the face of the petition that Plaintiff’s damages exceed

$75,000” and that “Defendant has not provided sufficient evidence that the amount in controversy

is satisfied in this case.”16 The Court ordered Defendant to submit evidence regarding the amount

in controversy at the time of removal.17 On October 28, 2021, Defendant submitted a

“Memorandum in Support of Amount in Controversy.”18 On November 17, 2022, Plaintiff filed a

stipulation “that at no time has the amount and/or value in controversy in [this matter] exceeded a

sum or value of $75,000.00 exclusive of interest and costs.”19

II. Defendant’s Arguments

Defendant argues that information obtained regarding Plaintiff’s claimed injuries and

treatment, along with Plaintiff’s failure to respond to Defendant’s Request for Admission, prove

that the amount in controversy exceeded $75,000 at the time of removal.20 First, Defendant argues

that it obtained medical records indicating that Plaintiff “claims to have injured her lower back in

13 See Rec. Doc. 1-6 at 1.

14 Rec. Doc. 1 at 4 (“As of the filing of this removal, the [P]laintiff has failed to answer [Defendant’s]

Requests for Admissions.”).

15 Rec. Doc. 5 at 4.

16 Id.

17 Id.

18 Rec. Doc. 6.

19 Rec. Doc. 16.

20 See Rec. Doc. 6.

Defendant contends that prior medical records show that Plaintiff already had a lower back injury

based on an MRI conducted prior to the incident.22 Thus, Defendant “anticipates that [Plaintiff]

will allege that the subject accident worsened her prior back injury.”23 Defendant further alleges

that Plaintiff has been treated by Louisiana Health Solutions for “complaints of right foot pain, left

hip pain, sacrum pain and low back pain following the accident” for a total cost of $3,522.00.24

Defendant provides no other evidence of treatment, but argues that another court in the Eastern

District of Louisiana, relying on Louisiana state court cases, denied a plaintiff’s motion to remand

“where the plaintiff was diagnosed with a cervical strain and sprain but where her MRI revealed

the presence of a disc bulge.”25

Second, Defendant argues that Plaintiff’s “failure to respond to [Defendant’s] Request for

Admission within thirty days results in its admission for purposes of establishing the amount in

controversy.”26 Defendant analogizes to Gayden v. Winn-Dixie Montgomery, Inc.,27 and argues

that another court in the Eastern District of Louisiana found that a plaintiff’s failure to respond to

a similar request for admission “was an admission pursuant to Louisiana law and served as ‘other

21 Id. at 1. Defendant states that a radiologist observed “lateral tilting” of a disc, “lateral curvature” of the

lower thoracic lumbar spine, “generalized exaggerated lumbar lordotic curvature between L1 and S1,” “disc space

narrowing,” and “suspected facet arthrosis at the lower lumbar levels.” Id. at 1–2.

22 Id. at 2. At this MRI taken prior to the incident, a radiologist observed “mild broad-based disc protrusion”

and other issues with L4-5 disc, along with “[m]inimal broad-based disc bulge” of the L5-S1 disc. Id.

23 Id.

24 Id.

25 Id. at 2–3 (citing Bourg v. Fireman’s Fund Ins. Co., 99-1066, 1999 WL 335636, at *1 (E.D. La. May 24,

1999)).

26 Id. at 3.

27 No. 13-6232, 2014 WL 433503 (E.D. La. Feb. 4, 2014).

was “deemed admitted that moment [Plaintiff] did not timely answer [it].”29

III. Legal Standard

A court must address the jurisdiction issue sua sponte because a “party may neither consent

to nor waive federal subject matter jurisdiction.”30 “[S]ubject matter delineations must be policed

by the courts on their own initiative.”31 The Court must remand this case to state court “[i]f at any

time before final judgment it appears that the district court lacks subject matter jurisdiction.”32

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

original jurisdiction over the action.33 The diversity statute, 28 U.S.C. § 1332, is satisfied upon a

showing of (1) diversity between the parties; and (2) an amount in controversy in excess of

$75,000, exclusive of interest and costs.34 The removing party bears the burden of demonstrating

that federal jurisdiction exists.35 In assessing whether removal is appropriate, the Court is guided

by the principle, grounded in notions of comity and the recognition that federal courts are courts

of limited jurisdiction, that “removal statute[s] should be strictly construed in favor of remand.”36

Under Fifth Circuit precedent, a removing defendant’s burden of showing that the amount

28 Rec. Doc. 5 at 3.

29 Id.

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

31 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)).

32 28 U.S.C. § 1447(c).

33 See 28 U.S.C. § 1441(a).

34 28 U.S.C. § 1332.

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

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

specific amount of monetary damages.37 When the plaintiff alleges a damage figure in excess of

the required amount in controversy, “that amount controls if made in good faith.”38 On the other

hand, if the plaintiff pleads damages that do not exceed the jurisdictional amount, that figure will

control and thus prohibit removal.39 “Thus, in the typical diversity case, the plaintiff remains the

master of [the] complaint.”40

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

damages.41 When, 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 $75,000.42

A removing 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.”43 The defendant must do more than point to a state law that might allow the

plaintiff to recover more than the jurisdictional minimum.44 Indeed, the defendant must submit

37 Id.

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

39 Id.

40 Id.

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

42 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.

43 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.

44 See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).

jurisdictional facts that support removal “must be judged at the time of the removal, and any post-

petition affidavits are allowable only if relevant to that period of time.”46

IV. Analysis

In Defendant’s “Memorandum in Support of Amount in Controversy,” Defendant alleges

that Plaintiff’s failure to respond to the Request for Admission and the nature of Plaintiff’s injuries

establish that the amount in controversy requirement is satisfied.47 Plaintiff submits a post-removal

stipulation that at no time has the amount in controversy requirement been satisfied in this matter.48

The Court first addresses Plaintiff’s failure to respond to the Request for Admission. The

Request for Admission states: “Please admit your claim is worth more than $75,000, exclusive of

interest and costs.”49 Defendant argues that this statement should be deemed admitted as it was not

denied within the time allowed by Louisiana law. However, a plaintiff’s failure to stipulate or

admit to an amount in controversy is just one factor a court considers in determining whether a

defendant has met its burden regarding the jurisdictional amount.50 This is because, in part, the

45 See id.

46 Allen, 63 F.3d at 1335.

47 See Rec. Doc. 6.

48 Rec. Doc. 16.

49 Rec. Doc. 1-6 at 1.

50 Riley v. S. Fidelity Ins. Co., No. 11-1482, 2011 WL 3567515, at *5 (E.D. La. Aug. 12, 2011) (citing Meza

v. Best Western Int’l, Inc., No. 10-2623, 2010 WL 5146524, at *2 n. 3 (E.D. La. Dec. 8, 2010) & Carbajal v. Caskids

Oil Operating Co., No. 05-5966, 2006 WL 1030392, at *3 (E.D. La. Apr. 18, 2006)) (finding that “‘a failure to stipulate

is only one factor to consider in determining whether a defendant has met its burden’ regarding the amount in

controversy”).

jurisdiction.”51 The Court must determine for itself if it has subject matter jurisdiction.52

Nevertheless, Defendant cites Gayden v. Winn-Dixie Mongtomery, Inc.,53 to support its

assertion that removal is proper where a plaintiff admits that the amount in controversy threshold

has been met by failing to respond to a request for admission.54 However, in Gayden, another court

in the Eastern District of Louisiana addressed the issue of whether removal was timely, not whether

the amount in controversy requirement had been met.55 Thus, there is nothing to suggest that the

court in Gayden determined that the amount in controversy requirement was satisfied based only

on the plaintiff’s failure to respond to the request for admission.56 Therefore, the Court finds that

Plaintiff’s failure to respond to the Request for Admission does not clearly establish that the

amount in controversy requirement was satisfied at the time of removal, but is just one factor to

consider in the analysis.

The Court next addresses Plaintiff’s stipulation that the amount in controversy was less

than $75,000 at the time of removal.57 While the amount in controversy must typically be

determined at the time of removal, the Fifth Circuit has held that a post-removal stipulation by a

51 Simon, 193 F.3d at 850.

52 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.”).

53 No. 13-6232, 2014 WL 433503 (E.D. La. Feb. 4, 2014).

54 Rec. Doc. 5 at 3.

55 Gayden, 2014 WL 433503, at *3.

56 See Franklin v. Tom Hassel Trans., Inc., No. 19-2228, 2019 WL 2755093, at *3 (E.D. La. July 2, 2019)

(“Because the Court [in Gayden] did not engage in a detailed analysis regarding the amount in controversy, it is unclear

how heavily the Court relied on the plaintiff’s failure to timely respond to a request for admissions in determining that

the amount in controversy was above $75,000.”).

57 See Rec. Doc. 16.

As the Court explained in its previous jurisdictional briefing order, it was not readily apparent

from the face of the petition that Plaintiff’s damages exceed $75,000 and Defendant did not provide

sufficient evidence in the Notice of Removal to establish that the amount in controversy

requirement was satisfied.59 Therefore, the basis for jurisdiction was ambiguous at the time of

removal. Thus, the Court shall consider Plaintiff’s post-removal stipulation as another factor, along

with Plaintiff’s failure to respond to the Request for Admission, in determining whether the amount

in controversy exceeded $75,000 at the time of removal.

Finally, the Court considers the evidence that Defendant has submitted to determine

whether the amount in controversy exceeded $75,000 at the time of removal. Defendant submits

medical records regarding Plaintiff’s injuries before and after the incident.60 This evidence does

not suggest that the amount in controversy exceeds $75,000. The records provided by Defendant

include only one bill for $3,552 in medical care received from June through September of 2020.61

Furthermore, a medical record from April 12, 2019, indicates that Plaintiff was already a surgical

candidate based on persistent back pain before the accident occurred.62 While the records

submitted by Defendant indicate that Plaintiff has undergone additional medical appointments and

tests, Defendant does not provide any evidentiary support that the expenses of these medical

58 Thompson v. Acceptance Indem. Ins. Co., No. 14-1424, 2014 WL 7369733, at *5 (E.D. La. Dec. 29, 2014)

(Brown, J.) (citations omitted); see De Aguilar v. Boeing Co., 47 F.3d 1404, 1406 (5th Cir.1995) (“Post-removal

affidavits sometimes can be relevant where the jurisdictional amount question is unresolved.”).

59 Rec. Doc. 5 at 4.

60 See Rec. Docs. 6-1, 6-2, 6-3, 6-4.

61 Rec. Doc. 6-3.

62 See Rec. Doc. 6-2.

what additional costs may be incurred in the amount of future medical damages, or other damages

alleged by Plaintiff.

In showing that the amount in controversy has been met, the burden is on the party asserting

federal jurisdiction to set forth specific facts that prove by a preponderance of the evidence that

the amount in controversy exceeds $75,000. The damages alleged are too speculative for the Court

to find that they satisfy the amount in controversy requirement. Thus, Defendant’s attempt to prove

the amount in controversy based on decisions in other courts is unpersuasive because “these

damages are highly individualized awards that are decided after a trial on the merits.”63 Although

the categories of damages that Plaintiff lists could potentially bring her total amount of damages

to over $75,000, the Fifth Circuit has explained that “[a] ‘could well’ standard sounds more like a

‘possibility’ standard of proof, rather than a ‘more likely than not’ standard.”64 Considering the

evidence of the amount in controversy at the time of removal, Plaintiff’s failure to answer the

Request for Admission, and Plaintiff’s post-removal stipulation, the Court finds that there is

insufficient evidence to demonstrate by a preponderance of the evidence that Plaintiff’s claims, if

proven, would be worth an amount in excess of $75,000.

Accordingly,

63 Franklin, 2019 WL 2755093, at *2 (citing Betemps v. Dolgencorp, No. 19-17647, 2017 WL 3327980, at

*3 (E.D. La. 2017) (Brown, J.)) (finding that Defendant failed to establish that the amount in controversy based on

an MRI report finding that the plaintiff suffered injuries to the lumbar discs).

64 Allen, 63 F.3d at 1336.

IT IS HEREBY ORDERED that the case is hereby remanded to the Civil District Court

for the Parish of Orleans, State of Louisiana for further proceedings.

NEW ORLEANS, LOUISIANA, this 5th _ day of December, 2022.

NANNETTE J Nel BROWN

CHIEF JUDGE

UNITED STATES DISTRICT JUDGE

1]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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