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

C R A I G C A S T E L L A N O S §

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V . § C I V I L A C T I O N N O . 3 : 2 2 - C V - 2 2 7 7 - 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 Ol'der addresses Plaintiff Craig Castellanos’s Motion for

Remand (“Motion”) ؛ECL No. 11]. The Court has reviewed and considered the Motion, Defendant

Kroger Texas, L.p.’s Response to PlalntifEs Motion to Remand [ECF No. 12], Defendant’s Brief

in Support of Defendant’s Response to PlaintifEs Motion to Remand (“Defendant’s Brief’) [ECF

No. 13], and Defendant’s Appendix in Support of Its Response to Plaintiffs Motion to Remand

(“Defendant’s Appendix”) ؛ECF Nos. 13-1, 13-2]. For the following reasons, the Court GRANTS

t h e M o t i o n .

BACKGROUND

On June 7, 2022, Plaintiff filed suit against Defendant in the 193rd Judicial Distidct Cou

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

(“Pet.”) [ECF No. 1-2] ٩7. Plaintiff alleges that while walking througlr aKroger store in Mesquite,

Texas, he “slipped in alarge pile of water on the floor” and “sufferfed] severe injuries.” Id. F

his unspecified medical expenses, mental anguish, physical impaiiment, and physic

disfigurement, among other things. Plaintiff sought “monetary relief over $250,000.00 but n

more than $1,000,000.00.” Id. ธ3, 14. Despite stating that he sought at least $250,000, Plaintiff

also pleaded that “the amount in controversy in this matter does not exceed $75,000.00.” Id.3 ل.

Defendant removed the case and asserts that the Court has subject-matter jurisdiction

because the parties are diverse and the amount in controversy exceeds $75,000. Notice of Removal

Case 3:22-cv-02277-S Document 15 Filed 03/28/23 Page 1 of 9 PageID 148
ECF No. 1] 1. In its Notice of Removal, Defendant noted Plaintiffs contradictory pleadings؛

regarding the amount in controversy and stated that Defendant atteiupted to ascertain the ti'ue

amount in controversy by sending Plaintiff arequest to stipulate that Iris danrages do not exceed

$75,000. Id. at 2-3. Plaintiff did not respond to that request. Id. at 3. Subsequently, Plaintiff fil

the instant Motion, arguing that the amount in controversy does not exceed $75,000.

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 stahrte.” Gunn V. Minton, 568 U.S. 251, 256 (2013) (intenral

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 (Stir Cir. 2014)

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

strictly construed, and any doubt about the propriety of renroval jurisdiction is resolved in favor

of renrand. 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.$.C. §1331; and (2) complete

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

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

preponderance 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 tire other

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

(citation omitted); see also New Orleans &Gulf Coast 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.”). “[D]iversity of citizenship

must exist both at the time of filing in state court and at the time of removal to federal cour

Coury V. Prot, 85 F.3d 244, 249 (5th Cir. 1996).

III. ANALYSIS

A . Diversity of Citiienship

According to the Notice of Removal, the parties are diverse because Plaintiff is aTexas

citizen and Defendant is an Ohio citizen. Notice of Removal 1-2. specifically. Defendant asser

tlrat Plaintiff is a“citizen, resident, and domicile” of Texas, id. at 1, and that Defendant is an Ohio

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

Ohio corporations with their principal places of business in Ohio, id. at 2. 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 (Stir Cir. 2008) (stating that the citizenship of a

limited partnership is that of each of its partners and that the citizenship of acorpoi'ation is each

state in which it is incorporated and in the state in which it has its principal place of business

(citation omitted)). Therefore, tire diversity of citizenship requirenrent is met.

B . Amount in Controversy

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

botlr that he sought over $250,000 and that the amount in controversy did not exceed $75,000. Pet.

٩3. After removal. Plaintiff filed the Motion, in which he argues that the amount in coirtrover

does not exceed $75,000. Mot. 1. Accordiirg to Plaintiff, the Court should remand the case because

’Plaintiff has stated $75,000 as amaximunr amount of damages sought in his live pleading” and

because Defendant has no evidence that the amount in controversy exceeds $75,000. Id. ธ13, 17.

In response. Defendant asserts that the Court has subject-matter jurisdiction because: (!) Plaintiff

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pleaded in his Petition that he seeks more tiran $250,0002) ؛ (Plaintiff did not stipulate that he is

seeking $75,000 or less; and (3) Defendant has produced sufficient evidence that tire amount 

controversy exceeds $75,000. Def.’s Br. ธ8, 10.

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’sjurisdiction is established, subsequent events that reduce the amount in controversy to less

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

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

plaintiff has alleged aspecific anrount of damages in the petition. See De Aguilar V. Boeing Co

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

requisite amount in controversy, that amount controls if made in good faith." Allen 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 must prove by

preponderance of the evidence that the amount in controversy exceeds [$75,000].” Id. at 1335

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

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

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

Id. $econd, if the facially apparent test is not met, the removing defendant may provide “summaryjudgment-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” tire plaintiffs recovery will not exceed the

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

omitted).

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Texas Rule of Civil Procedure 47 requires plaintiffs to categorize tlreir damages within one

of five predefined ranges. At the time Plaintiff filed his Petition, Rule 47 required tire select

oire of the following categories of monetary relief:

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

punitive damages and penalties, and attorney fees and costs;

(2) monetary relief of $250,000 or less and ηοη-monetai'y 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). Though Plaiirtiff claims that the Petition states that he “seeks monetai-y

relief of no more than $250,000.00,” Mot. 11 12, this assertion is contradicted by the Petition. The

Petition confirms that Plaintiff chose the range set forth in Rule 47(c)(3)-“over $250,000.00 b

not more than $1,000,000.00.” Pet. ร3. Because Plaintiff alleged anon-specific range of damage

Defendant must prove that the amouirt 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, 2016 WT

8931300, at *3(E.D. Tex. Apr. 2016) (“In situations where the petition alleges only arange of

damages and not aspecific amount in controversy, removal is proper if the removing par

establishes by apreponderance of the evidence that the amount in controversy exceeds

$75,000.00.” (citations omitted)).

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

tire Petitioir to determine whether tire amount in controversy likely exceeds $75,000. Allen, 63 F.3d

at 1335. In the Petitioir, Plaintiff claims generally that he “suffered severe injuries,” Pet. 11 7, and

'was seriously injured,” id. 11 14. Plaintiff broadly asserts damages for unidentified past and futtr

medical expenses, past and future pain, suffering, and mental anguish, past and firture plrysic

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impairment, past and foture physical disfigurement, past lost wages, and futme loss of earni

capacity. Id. The Petition provides no firrther information on the monetary value of Plaintif

claims-for example, details regarding the alleged injuries, or tire type, extent, and cost of medical

treatment incurred. Plaintiffs nondescript general allegations do not make it facially apparent that

tire aiuount in controversy exceeds $75,000. See, e.g., 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 aplaintiffs injuries “is arelative tenu 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 allege

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

body, bnrises, 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 sirffering.

humiliation, and her temporary inability to do housework after tire hospitaliẩtion”)

As it is irot 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 that Plaintiffs claims likely exceed $75,000.

Defendant has provided evidence, but it is insufficient to demonstrate that Plaintiffs claims like

exceed $75,000.

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First, Defendant provides evidence that Plaintiff suffered bilateral meniscus tears in both

knees and has undergone four intra-articular joint injections. Def.’s Br. ٩2. However, Defendant

fails to include acritical fact: the cost of these procedures. The only evidence of costs the Court

has before it comes from Plaintiffs billing affidavits. According to the affidavits. Plaintiff 

$7,275 for services provided by MRI Centers of Texas, ECF No. 1-2 at 34, and $975 for services

provided by Waltham Consultants Ρ.Α., id. at 38. These costs are significantly below $75,000 a

do not support federal jurisdiction. Defendant’s argument that “Plaintiff ...has provided no

evidence that surgery will not subsequently be recommended” misses the mark. Def.’s Br. ร10.

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. Allen, 63 F.3d at 1335 (citation

omitted). None of the medical records submitted by Defendant show that any doctor has

recommended surgety. See, e.g., Def.’s App. 15, 27 (reflecting that tire treatment for Plaintif

injuries thus far has been intra-articularjoint ityections). And Defendant has not provided the Court

with the cost of any Irypothetical fuhrre surgety. See Robichaux V. Wal-Mart Stores, Inc., No. 16-

1786, 2016 WT 1178670, at *3 (E.D. La. Mar. 28, 2016) (remanding case where defendant did

'not produce any evidence of the likelihood that... surgery will take place or what its cost would

be”)؛ Saucedo V. State Farm Mut. Auto. Ins. Co., No. DR-10-CV-OOl-AML-VRG, 2010 WE

11597175, at *3 (W.D. Tex. Mar. 9, 2010) (remanding case where cost of reconrmended surgety

was “not clear from [plaintiffs pre-suit demand] letter or any other materials submitted with the

Notice of Removal”), report and recommendation adopted by 2010 WE 11597170 (W.D. Tex.

Apr. 21,2010).

$econd. Defendant argues that Plaintiff reported that he was demoted to alower payingjob

due to his injury. Def.’s Br. ٩2. Again, Defendant has provided no evidence of Plaintiffs current

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or former salary or the size of the alleged pay cut. See Robichaux, 2016 I1178670, at *4

(“Although Plaintiff requests lost earnings/wages in her petition, no summary judgment-type

evidence is provided supporting anumerical figure for any lost earnings, past, present, 

future[.^”).

Third, Defendant argues that Plaintiffis failure to stipulate that his damages do not exce

$75,000 “raises the presumption that the amount in controversy in this case exceeds $75,000.00.'

Def.’s Br. Ii 4. Plaintiffs refosal to stipulate to damages is a“factor ...considered by the Court؛

but “alone it is not reason to deny remand." Johnson V. Dillard Dep’t Stores, Inc. 36 F. $upp.

390, 394 (N.D. Tex. 1993). Here, the Court finds that Plaintiffs failure to stipulate is n

accompanied by other evidence or information sufficient to deny remand. As discussed abov

Plaintiffs known costs to date are well below the jurisdictional threshold. And Plaintiffs Petition

does not indicate that he seeks “statutory penalties, treble damages, or punitive damages that might

amplify the amount in controversy above the $75,000 threshold.” Saucedo, 2010 WT 11597175

at *3. Finally, the Court notes that despite Plaintiffs failure to stipulate, he responded to aRequest

for Admission asking him to admit that he was seeking damages in excess of $75,000 by stating.

.Not at this time.” Def.’s App. 55؛

Considering the Petition and all of the evidence submitted by Defendant, the Court

concludes that Defendant has not canied its burden to establish subject-matter jurisdiction by a

preponderance 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 (citation omitted), the Court must remand for lack

of subject-matter jurisdiction.

Case 3:22-cv-02277-S Document 15 Filed 03/28/23 Page 8 of 9 PageID 155
IV. CONCLUSION

For the reasons discussed above, the Court GRANTS Plaintiffs Motion for Remand ؛ECF

No. 11]. This case is REMANDED to the 193rd Judicial District Court of Dallas County, Texas.

S O O R D E R E D .

SIGNED March 28, 2023.

K A R E N G R E N S C H O L E R

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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