U n i t e d S t a t e s D i s t r i c t C o u r t

N O R T H E R N D I S T R I C T O F T E X A S

D A L L A S D I V I S I O N

L A V E T T E J O H N S O N §

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V , § C I V I L A C T I O N N O . 3 : 2 2 - C V - 2 0 8 S - S

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KROGER TEXAS, L.P. §

M E M O R A N D U M O P I N I O N A N D O R D E R

This Memorandum Opinion and Order addresses Plaintiff Lavette Johnson’s Motion to

Remand (“Motion”) [ECF No. 13]. The Court has reviewed and considered the Motion, Defendant

Kroger Texas, L.p.’s Response to Plaintiffs Motion to Remand (“Response”) (ECF No. 14], and

Defendant’s Brief in Support of Defendant’s Response to Plaintiffs Motion to Remand

("Defendant’s Brief’) [ECF No. 15]. For the following reasons, the Court GRANTS the Motion.

BACKGROUND

On August 1٥, 2022, Plaintiff filed suit against Defendant in the 44th Judicial District Cou

of Dallas County, Texas, to recover for injuries sustained in aslip and fall. Pl.’s Original Pet.

(“Pet.”) [ECF No. 1-2] 1-2. Plaintiff alleges that while shopping at aKroger store in Grand Prairie,

Texas, she “slipped on what appeared to be spilled cooking oil” and suffei'ed “significant person

injuries, including injuries to her knee and face.” Id. at 2؛ see also id. at 4(“Plaintiff suffered severe

and disabling injuries to her knee and face ....”). For her unspecified nredical expenses, physic

pain and suffering, mental anguish, physical inrpairment, and disfigurement, amoirg otheidamages. Plaintiff sought monetary relief between $250,000 and $1,000,000. Id. at 1, 

Defendant removed the case, asserting that the Court has subject-matter jurisdiction

because the parties are diverse and the amouirt in controversy exceeds $75,000. Def.’s Notice of

Removal [ECF No. 1] 1. According to Defendant, by seeking damages between $250,000 and

$1,000,000, Plaintiff “judicially admitted] ...that she is seeking damages in excess of

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$75,000.00.” Id. at 3. On February 14, 2023, the parties appeared before the Court for an initial

hearing pursuant to Federal Rule of Civil of Procedure 16. Plaintiff, through her counsel, stipulated

on the record that her claims do not exceed $75,000, exclusive of interest and costs. See Mot. 1

ใ| 3؛ Def.’s Br. ٩5. Subsequently, Plaintiff filed the Motion, in which she again stipulates that h

clainrs do not exceed $75,000. Mot. 2٩4.

II, L E G A L S T A N D A R D

Any civil action brought in astate court of which the district courts have original

jurisdiction may be removed to the district court embracing the place where such action is pending.

28 U.S.C. §1441(a). “Federal courts are courts of limited jurisdiction, possessing only that power

authorized by Constitution and statute.” Gunn V. Minton, 568 U.S. 251, 256 (2013) (internal

quotation marks and citation omitted). Afederal court must presume that acase lies outside its

limited jurisdiction, and the party asserting jurisdiction bears the burden of establishing the

contrary. Energy Mgmt. Servs., LLC V. City of Alexandria, 739 F.3d 255, 257 (5th Cir. 2014)

(citation omitted). Because removal raises significant federalism concerns, the removal statute 

strictly construed, and any doubt about the propriety of I'emoval jurisdiction is resolved in favor

of remand. Gasch V. Hartford Accident &Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007)

(citations omitted). The two principal bases upon which adistrict court may exercise removal

jurisdiction are: (1) the existence of afederal question, see 28 U.S.C. §1331؛ and (2) complete

diversity of citizenship among the parties, see 28 U.S.C. §1332.

When asuit is removed on the basis of diversity, tire removing party must establish by a

prepondemce of the evidence that: (1) the amount in controversy exceeds $75,000; and (2) all

persons on one side of the controversy are citizens of different states than all persons on the other

side of the controversy. Frye V. Anadarko Petroleum Corp., 953 F.3d 285, 293 (5th Cir. 2019)

(citation omitted); see also Nevi! Orleans &GulfCoast Ry. Co. V. Barrois, 533 F.3d 321, 327 (5th

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cir. 2008) (“The party seeking to assert federal jurisdiction ...has the burden of proving by a

preponderance of the evidence that subject matter jurisdiction exists.” (citations omitted)).

[DJiversity of citizenship must exist both at the time of filing in state court and at the tinre 

removal to federal court.” Coury V. Prot, 85 F.3d 244, 249 (5th Cir. 1996).

III. ANALYSIS

A . Diversity of Citizenship

According to Defendant, the parties are diverse because Plaintiff is aTexas citizen and

Defendant is an Ohio citizen. Def.’s Notice of Removal 2. Specifically, Defendant asserts th

Plaintiff is a“citizen, resident, and domiciliary” of Texas, 1๔., and that Defendant is an Ohio citizen

because its general partner, KRGP Inc., and its sole limited partner, KRTP Inc., are Ohio

corporations with their principal places of business in Ohio, 1๔ See Coury, 85 F.3d at 249 (“A

United States citizen who is domiciled in astate is acitizen of that state.”); Harvey V. Grey Wolf

Drilling Co., 542 F.3d 1077, 1079 (5th Cir. 2008) (stating tlrat the citizenship of alimited

partnership is that of each of its partners and that the citizenship of acorporation is each state in

which it is incorporated and tire state in which it has its principal place of business (citations

omitted)). Therefore, the diversity of citizenship requirement is met.

B . Amount in Controversy

In the Petition, which was the operative pleading at the time of renroval. Plaintiff stated

that she sought over $250,000. Pet. 1. However, Plaintiff argues that the Court should remand the

case because it is not facially apparent from the Petition that tire amouirt in controversy exceeds

$75,000, meaning Defendant must provide evidence that Plaintiffs claims likely exceed $75,000.

Mot. 3-4. In response. Defendant asserts that the Court has subject-matter jurisdiction because:

(1) “Plaintiff judicially admitted that she seeks recovery in excess of the threshold amount in

controversy requir'ed to satisfy diversity jurisdiction”; and (2) “Plaintiff claims to have sustained

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left knee and, lumbar spine injuries, and has received estimates for steroid injections to treat both

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alleged areas and has plead؛ed] to recover for fuhrre ؛damages], as well as gross negligence.

Def.’s Br. 1(emphasis omitted). Defendant also notes that Plaintiff seeks punitive danrages.

Resp. 1.

The amount in controversy is determined as of the time of removal. Gebbia V. Wal-Mart

Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000) (citation omitted). “Moreover, once the district

court’s jurisdiction is established, subsequent events that reduce the amount in controversy to less

than $75,000 generally do not divest the court of diversity jurisdiction.” 7^. (citations omitted). To

determine whether the amount in controversy requirement is met, courts first look to whether t

plaintiff has alleged aspecific amount of damages in the petition. See De Aguilar V. Boeing C

11 F.3d 55, 58 (5th Cir. 1993) (citation omitted). “Where the plaintiff has alleged asum certain

that exceeds the requisite amount in controversy, that amount controls if made in good faith.vAllen

V. R&HOil &Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995) (citation omitted). “[W]hen the

plaintifFs complaint does not allege aspecific amount of damages, the removing defendant mu

prove by apreponderance of the evidence tlrat the amount in controversy exceeds [$75,000].” Id.

(quoting De Aguilar, 11 F.3d at 58).

The removing defendant can nreet its burden in one of two ways. First, the defendant’s

burden is met if it is facially apparent from the petition that tire plaintiffs clainrs exceed $75,000.

Id. $econd, if the facially apparent test is not met, the removing defendant may provide “summary.

judgment-type” evidence to prove that the claims exceed the jurisdictional threshold. Id. at 1336.

Once the defendant establishes that the amount in controversy exceeds $75,000, removal is proper

unless the plaintiff shows that it is “legally certain” the plaintiffs recovery will not exceed the

The Court notes that no allegations related to lumbar spine injuries or steroid injections appear in theا

Petition. Instead, Plaintiff alleges injuries to her knee and face. See Pet. 4.

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jurisdictional amount. See In re 1994 Exxon Chem. Fire, 558 F.3d 378,387 (5th Cir. 2009) (citation

omitted).

Under Texas Rule of Civil Procedure 47, plaintiffs must categorize their damages within

one of five predefined ranges. Rule 47 requires the selection of one of the following categorie

monetary relief:

(1) only monetary relief of $250,000 or less, excluding interest, statutory or

punitive daiuages and penalties, and attorney fees and costs;

(2) monetary relief of $250,000 or less and non-monetary relief;

(3) monetary relief over $250,000 but not more than $1,000,000;

(4) monetary relief over $1,000,000; or

(5) only non-monetary relief.]

Tex. R. Civ. P. 47(с)(1)-(5). Plaintiff chose the range set forth in Rule 47(c)(3). ' m o r e t h a n

$250,000.00 but not more than[] $1,000,000.00.” Pet. 1.

Because Plaintiff alleged anon-specific range of damages. Defendant must prove that t

amount in controversy exceeds $75,000 by apreponderance of the evidence. See, e.g., Plunkett V.

Companion Prop. &Cas. Ins. Co.,No. l:15-CV-474, 2016WT 8931300, at *3 (E.D. Tex. Apr. 8,

2016) (“In situations where the petition alleges only arange of damages and not aspecific amou

in controversy, removal is proper if the removing party establishes by apreponderance of the

evidence that the amount in controversy exceeds $75,000.00.” (citations omitted)).

To determine whether Defendant has met its burden, the Court first examines the face 

the Petition to determine whether the amouirt in controversy likely exceeds $75,000. Allen, 63 F.3d

at 1335. In the Petition, Plaintiff claims generally that she “suffered severe and disabling injuries

to her knee and face, mental and physical functioning, and disfigurement.” Pet. 4. Plaintiff broad

asserts damages for unidentified past and future nredical expenses, future treatment, past and futu

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

future disfigurement. Id. at 5. Plaintiff also seeks exemplary damages. Id. The Petition provid

no firrther information oir the monetary value of Plaintiffs claims—for example, details regardi

the alleged injuries, or the type, extent, and cost of medical treatment incurred. Plaintiffs

nondescript general allegations do not make it facially apparent that the amount in controversy

exceeds $75,000. See, ج.ج., Zielinski V. Allstate Fire &Cas. Ins. Co., No. 3:22-CV-71-L, 2022 WL

2118981, at *5 (N.D. Tex. June 13, 2022) (noting that the use of the word “severe” to describe a

plaintiffs injuries “is arelative term that is amorphous when not accompanied by supporting

factual allegations”).

The Fifth Circuit has found that the facially apparent test was not met when aplaintiff

pleaded similar non-specific injuries. Compare Simon V. Wal-Mart Stores, Inc., 193F.3d 848, 85

51 (5th Cir. 1999) (finding complaint did not support diversity jurisdiction when plaintiff alleg؛

with little specificity, damages for aseverely injured shoulder, soft-tissue injuries throughout h

body, bruises, abrasions, unidentified medical expenses, and plaintiffs husband’s alleged loss 

consortium), with Luckett V. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (affirmi

district court’s finding that claims exceeded $75,000 when plaintiff alleged damages for “propert

travel expenses, an emergency ambulance trip, asix day stay in the hospital, pain and suffering.

humiliation, and her temporaty inability to do housework aftei' the hospitalization”).

Defendant’s argument that Plaintiff has received estimates for steroid injections is

unavailing. Defendant has not submitted evidence or pointed to any allegation by Plaintiff showing

that Plaintiff will or may receive injections and has not provided the Court with the cost of any

hypothetical injections.Wa l - M a r t S t o r e s , / ι . , Ν ο . 1 6 - 1 7 8 6 , 2٥1 6 W T 11 7 8 6 7 0 ,

at *3 (E.D. Ta. Mar. 28, 2016) (remanding case where defendant did “not produce any evidence

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of the likelihood that ...surgery will take place or what its cost would be”)؛ see also Autin V.

Cherokee Ins. Co., No. 20-528-JWD-EWD, 2020 WL 4876857, at *2 (M.D. La. Aug. 19, 2020)

(“Plaintiffs cited treatment of acervical MRI, steroid injections, and physical therapy standing

alone do not meet the jurisdictional threshold.” (citations omitted)).

The fact that Plaintiff seeks exenrplary damages, without more, does not change this

outcome. As the party asserting federal jurisdiction. Defendant bears the burden to prove that the

amount in controversy exceeds $75,000 by apreponderance of the evidence, and Defendant has

not carried that burden. Allen, 63 F.3d at 1335 (citation omitted). “[E]ven if Plaintiffs claims

including ... exemplary damages ... arguably could exceed $75,000, such is not facially apparent

from the complaint, and Defendant has presented no additional facts or proof in support of federal

jurisdiction." Inc. V. Safe House Habitats, Ltd.,l. Η-06-1509, 2007 WL 556862, at *2

($.D. Tex. Feb. 12, 2007) (citation omitted)؛ see also Sanchez V. Aburto, No. 3:18-CV-2460-L

2018WL 4953147, at *2 (N.D. Tex. Oct. 12, 2018) (“[W]ithout any factual allegations from which

the court can assess the potential actual damages in this case, it lias no way of reasonably inferring

the potential for an award of exemplary damages.”)؛ Sims V. AT&T Corp., No. 3:04-CV-1972-D:

2004 WL 2964983, at *4 (N.D. Tex. Dec. 22, 2004) (remanding case where it was not facially

apparent that punitive damages would lead to award exceeding minimum jmisdictional amount

and defendant did not “demonstrate[] by apreponderance of the evidence that [the plaintiffs]

claim for punitive damages exceeds the minimum jurisdictional amount”).

As it is not apparent from the face of the Petition that the amount in controversy exceeds

$75,000, the Court looks to whether Defendant presented any summary-judgment-type evidence

or any additional information to demonstrate tliat Plaintiffs claims likely exceed $75,000.

Defendant has not provided any such evidence. Therefore, the Court concludes that Defendant has

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not met its burden to establish subject-matter jurisdictioir by apreponderance of the evidence.

Moreover, given binding precedent that “؛t]he removal statute is ... to be strictly construed” and

that “any doubt about the propriety of removal must be resolved in favor of remand,” Gasch,

491 F.3d at 281-82 (citations omitted), the Court must remand for lack of subject-niatter

jurisdiction.

IV. CONCLUSION

For the reasons discussed above, the Coui't GRANTS Plaintiffs Motion to Remand [ECF

No. 13]. This case is REMANDED to the 44th Judicial District Court of Dallas County, Texas.

S O O R D E R E D .

SIGNED May 10, 2023.

ZIn gren scholer

U N I T E D S T A T E S D I S T R I C T J U D G E

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