White v. Kroger Texas, LP

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

SHARON WHITE,

Plaintiff,

v. No. 4:23-cv-00585-P

KROGER TEXAS, LP,

Defendant.

ORDER & OPINION

This is a run-of-the-mill premises liability case. It presents no

complex facts or novel legal issues. It is governed by long-established

Texas common law.1 By all accounts, it appears well at home in Texas

state courts. So the Court understands why Plaintiff Sharon White

moved to remand on July 3, 2023. See ECF No. 8. Nevertheless, having

reviewed White’s Motion to Remand and applicable legal authorities,

the Court finds the Motion should be and hereby is DENIED.

BACKGROUND

Sharon White slipped and fell in a grocery store operated by

Defendant Kroger Texas, LP on March 6, 2023. She sued Kroger the next

month in Texas state court. Kroger removed her case to this Court

roughly a month later. White’s original state-court petition specified a

damages range between $250,000 and $1 million. Removal changed her

mind. After Kroger removed White’s case, she amended her pleadings to

request damages less than $75,000. As Kroger predicated removal on

diversity of citizenship, White seeks remand, arguing her case doesn’t

1See, e.g., Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 815–16 (Tex. 2002)

(collecting cases and explicating the historical development of slip-and-fall

claims within Texas premises liability law); Keetch v. Kroger Co., 845 S.W.2d

262, 264 (Tex. 1992) (explaining the incorporation of slip-and-fall claims into

Texas’s pattern jury charges); see also Corbin v. Safeway Stores, Inc., 648

S.W.2d 292 (Tex. 1983) (first enumerating the factors of slip-and-fall liability).

reach the $75,000 jurisdictional minimum. That makes sense. But as

explained below, the Court must deny White’s requested remand.

LEGAL STANDARD

“The party seeking to remove bears the burden of showing that

federal jurisdiction exists and that removal was proper.” Mumfrey v.

CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013). Relevant here is

diversity jurisdiction, which exists when the parties are citizens of

different states and “the matter in controversy exceeds the sum or value

of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a)(1). For

removals based on diversity, defendants must prove both complete

diversity of citizenship and the requisite amount in controversy. Hood

ex rel. Miss. v. JP Morgan Chase & Co., 737 F.3d 78, 85 (5th Cir. 2013).

The latter can be established by pointing to any good-faith assertion of

damages in the plaintiff’s original state-court petition. Guijarro v. Enter.

Holdings, Inc., 39 F.4th 309, 314 (5th Cir. 2022).

ANALYSIS

As noted above, Kroger bears the burden of establishing this Court’s

jurisdiction. Mumfrey, 719 F.3d at 397. Because Kroger removed White’s

case based on diversity, it can carry its burden only by showing (1)

complete diversity of citizenship and (2) the amount in controversy

exceeds $75,000. Hood, 737 F.3d at 85. The first prong is easy—White

lives in Texas and Kroger, despite the legal name “Kroger Texas, LP,” is

an Ohio limited partnership. See ECF No. 1 at 2. So the only controversy

involves the amount in controversy. As explained below, Kroger carries

its burden in showing the case involves more than $75,000 in damages.

For her part, White points to the obvious fact that both her amended

complaint in this case and her amended petition in the state-court case

specify damages under the jurisdictional amount. See ECF No. 8 at 4

(“Plaintiff’s live pleading unequivocally affirms that the amount in

controversy does not exceed more than $75,000.00. Plaintiff’s Amended

Petition, attached to Defendant’s Notice of Removal clearly articulates

‘Plaintiff further pleads that she seeks less than $75,000.00.’”).2 But the

Court’s jurisdictional inquiry looks not to the live pleadings, but to the

pleadings at the time of removal. Guijarro, 39 F.4th at 314; accord

Durbois v. Deutsche Bank Nat'l Tr. Co., 37 F.4th 1053, 1056 (5th Cir.

2022) (observing the “general rule that ‘the sum demanded in good faith

in the initial pleading’ is ‘the amount in controversy’” (quoting 28 U.S.C.

§ 1446(c)(2))).

At the time of removal, White sought damages somewhere between

a quarter-million and a million bucks. See ECF No. 1-2 at 6. Notably,

Texas’s rules of procedure require damages ranges, not specific sums.

See TEX. R. CIV. P. 47(c). And the enumerated ranges create ambiguity,

as White points out. See ECF No. 8 at 4 (observing that “Texas law has

not yet comported itself with 28 U.S.C. § 1332(a). Even the lowest

category to be pled is well above the federal statutory limit for removal

jurisdiction. This is why Plaintiff clearly stated in her Amended Petition

that her case was not worth more than $75,000”). But there’s a problem

with that argument: while White predicates her argument on the lowest

statutory range, her original complaint (the operative pleading at the

time of removal) didn’t specify the lowest range.

If White had originally specified damages under TEX. R. CIV. P.

47(c)(1) (amounting to “$250,000 or less”), the Court’s analysis would be

different. See 28 U.S.C. § 1446(c)(2)(A)(ii) (creating an exception for

ambiguous state-court damages ranges like those under Rule 47(c)(1)).

But White went with Rule 47(c)(2). See ECF No. 1-2 at 6 (showing

White’s original petition sought “monetary relief over $250,000 but not

more than $1,000,000, excluding interest, statutory or punitive damages

and penalties, and attorney’s fees and costs to which Plaintiff is justly

entitled”). Even at the lowest sum in that range, White’s damages would

exceed this Court’s jurisdictional minimum by $175,000. Accordingly,

the Court must DENY White’s Motion.

2White’s statement that her amended petition is attached to the removal

notice is incorrect. White’s original petition is attached to the removal notice;

she didn’t file her amended petition until June 22—two weeks after Kroger

removed the case to federal court. See ECF No. 1-2 at 6–9.

CONCLUSION

The Judiciary Act turned 233 this week. Among other things, the Act

established federal courts’ diversity jurisdiction.3 Academics debate the

impetus behind this unique jurisdiction. Conventional wisdom says the

founders created diversity jurisdiction out of concerns that one state’s

citizen might not get a fair shake if tried before a jury of another state’s

citizens.4 Enter the federal courts—a neutral arbiter that could

adjudicate disputes between citizens of different states. The primary

literature suggests another rationale was at least as strong: fear not of

state juries, but of state legislatures. Many writings reflect skepticism

among the Act’s signers that layperson-elected state legislatures could

furnish sophisticated legal frameworks to handle complex commercial

disputes.5 Enter once more the federal courts—a neutral arbiter that

could ensure consistent application of law to interstate commercial

disputes and thus “rise above” the whims of state legislators. Whatever

the reason—fear of jury bias or fear of plebeian state lawmakers—

3See Act of September 24, 1789 (An Act to Establish the Judicial Courts of

the United States), § 11, 1 Stat. 73 (codified as amended at 28 U.S.C. § 1332)

(establishing that “[t]he judicial Power [of federal courts] shall extend . . . to

Controversies between . . . Citizens of different States”).

4This view is not without historical backing. See, e.g., James Madison’s

remarks at the Virginia Convention, reprinted in 3 ELLIOT’S DEBATES, The

Debates in the Several State Conventions on the Adoption of the Federal

Constitution 533 (1836) (advocating for diversity jurisdiction because “a strong

prejudice may arise in some states, against the citizens of others, who may

have claims against them”); Alexander Hamilton’s remarks in Federalist No.

80, THE FEDERALIST NO. 80, at 379 (Alexander Hamilton) (Terrance Ball ed.,

2003) (noting federal courts should handle cases “in which one State or its

citizens are opposed to another State or its citizens” to ensure “the inviolable

maintenance of equality of privileges and immunities to which the citizens of

the Union will be entitled” and reasoning that federal courts, “having no local

attachments, will be likely to be impartial between different States and their

citizens”).

5See generally H. Friendly, The Historic Basis of Diversity Jurisdiction, 41

HARV. L. REV. 483, 496 (1928) (suggesting “the desire to protect creditors

against [state] legislation favorable to debtors was a principal reason for the

grant of diversity jurisdiction”); 13 WRIGHT & MILLER, FED. PRAC. & PROC.:

JURISDICTION & RELATED MATTERS § 3601 (3d ed. Apr. 2021) (examining

commentaries that show diversity jurisdiction resulted from “a desire to

protect commercial interests from class bias [in state legislatures]”).

history is clear the Act’s signers intended diversity jurisdiction to be the

exception, not the rule.

One way the signers upped the jurisdictional ante was an “amount

in controversy” requirement. Congress realized federal courts couldn’t

be bogged down by every interstate dispute that arose in the young

republic. Indeed, if a Virginia farmer and a New York merchant wanted

to duke it out in federal court at the time, they had to prove $500 or more

was on the line. That minimum was raised six times over the next two

centuries, with the last change setting it at $75,000 in 1996.7 The

amount hasn’t changed since, despite inflation reducing the buying

power of $75,000 by orders of magnitude. Suffice it to say, changes have

rendered the current threshold anachronistic, transforming a serious

barrier to entry in 1789 into a speedbump today—to say nothing of the

proliferation of interstate corporations that render “diverse citizenship”

far more likely today than at the Act’s signing.

Perhaps times have changed and the law hasn’t kept up. It would

certainly be fair for Ms. White to think so. But be that as it may, the

Court’s only job is to apply the law. And at the moment, “the district

courts shall have original jurisdiction of all civil actions where the

matter in controversy exceeds the sum or value of $75,000, exclusive of

interest and costs and is between .. . citizens of different states.” See 28

U.S.C. § 1332 (a)(1). Ms. White is from Texas and the legal entity she

sues isn’t. See ECF No. 1 at 2. And White’s pleading at the time of

removal—the only pleading that controls—specifies damages more than

$75,000. See ECF No. 1-2 at 6. Accordingly, the Court DENIES the

Motion to Remand. ECF No. 8.

SO ORDERED on this 29th day of September 2023.

wh. “7 b2

J CMa

Mark T. Pittman

UNITED STATED DISTRICT JUDGE

6See 8. Gensler & R. Michalski, The Million-Dollar Diversity Docket, 47

BYU L. REV. 1653, 1656 (2022).

Ud.