# White v. Kroger Texas, LP

> District Court, N.D. Texas · September 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10671201

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** September 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10671201

## How later opinions describe it (automated extraction)

- explaining the incorporation of slip-and-fall claims into Texas’s pattern jury charges
- 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))

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10671201. Public record. Not legal advice.