IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41411

Summary Calendar

YVONNE ROBINSON,

Plaintiff - Appellant

v.

WAL-MART STORES TEXAS, L.L.C.,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:11-CV-425

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Yvonne Robinson sued Wal-Mart Stores Texas, LLC (“Wal-Mart”) in 

Texas state court for injuries that she alleged resulted from a “slip and fall” on

rainwater that had accumulated in the entryway of a Wal-Mart store. WalMart removed the case to federal court on the basis of diversity jurisdiction. 

The district court subsequently granted Wal-Mart summary judgment relief

on all of Robinson’s claims. We AFFIRM.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 9, 2014

Lyle W. Cayce

Clerk

 

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We first address the district court’s denial of Robinson’s motions for 

remand and reconsideration in which she argued removal was improper 

because the court lacked subject-matter jurisdiction.1 We review the denial of 

a motion for remand de novo and the denial of a motion for reconsideration for 

abuse of discretion. See Lake Hill Motors, Inc. v. Jim Bennett Yacht Sales, Inc., 

246 F.3d 752, 757 (5th Cir. 2001) (motion for reconsideration); Gebbia v. WalMart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000) (motion for remand). 

Removal is proper premised on diversity jurisdiction when the civil 

action is between citizens of different states and the amount in controversy 

exceeds the value of $75,000, exclusive of interests and costs. 28 U.S.C. § 

1332(a)(1). If at the time of removal it is facially apparent from the statecourt petition that the amount in controversy exceeds $75,000, a plaintiff’s

subsequent request to amend her petition to “clarify” the amount in 

controversy cannot divest jurisdiction. See Gebbia, 233 F.3d at 882; Allen v. R 

& H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995).

Here, at the time of removal, it was facially apparent from Robinson’s 

petition that she sought at least $80,400. Specifically, her original petition 

listed approximately $26,000 in medical expenses, $10,800 in lost wages (plus 

unspecified lost wages for six additional months), $3,600 in lost housing, and 

1 Robinson’s notice of appeal states that she appeals “the Order of March 01, 2012, 

denying remand.” However, the district court’s order denying remand is dated February 7, 

2012, and the order of March 1, 2012, involved a denial of her motion for reconsideration. 

Nevertheless, we need not address this inconsistency because arguments concerning subjectmatter jurisdiction cannot be waived. See H&D Tire & Auto.-Hardware, Inc. v. Pitney Bowes 

Inc., 227 F.3d 326, 328 (5th Cir. 2000) (plaintiff’s failure to appeal its previously-denied 

motion to remand did not deprive us of jurisdiction to consider whether the matter was 

properly removed because “[w]e have a duty to raise the issue of subject matter jurisdiction 

sua sponte”).

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between $40,000 and $70,000 in anticipated future medical expenses.2 In 

addition, prior to removal, Wal-Mart proposed to Robinson that she stipulate 

to no more than $75,000 in damages in exchange for not removing the case to 

federal court. Robinson declined, asserting, inter alia, that the amount she 

sought exceeded $75,000. This summary-judgment-type evidence further 

illustrates that the amount in controversy exceeded $75,000 at the time of 

removal. See Allen, 63 F.3d at 1336 (summary-judgment-type evidence may 

be used to establish the amount in controversy at the time of removal).

Therefore, Robinson’s attempt to modify her petition post-removal to “clarify” 

the amount of damages cannot divest the court of subject-matter jurisdiction,3

and the district court did not err in denying Robinson’s motions for remand or 

reconsideration. See id.

Turning to Wal-Mart’s motion for summary judgment, we first address 

Robinson’s argument that the district court should have granted her additional 

time for discovery before ruling on the motion. Robinson was required to 

justify her motion for continuance by explaining why she needed additional 

discovery and how such discovery would likely create a genuine issue of 

material fact. See Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 

534–35 (5th Cir. 1999). Robinson’s motion merely asserts that she required 

additional time for discovery because she needed “to develop facts and 

information which determines what other employees know.” As the district 

2 Contrary to Robinson’s suggestion, her future medical expenses are relevant to

calculating the amount in controversy. See Badon v. R J R Nabisco Inc., 224 F.3d 382, 391 

n.14 (5th Cir. 2000) (observing that a claim for damages that generally relied on future 

medical expenses, inter alia, was sufficient to establish the amount in controversy). 

3 Robinson argued in her amended motion to remand that the amount in controversy 

was below $75,000 because her original petition relied on a hospital bill for $23,500, when in 

fact the bill was only for $235.00. 

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court observed, she wholly failed to identify the type of discovery she sought to 

conduct or any specific evidence that she sought to produce. She further failed 

to explain how additional evidence would be relevant in rebutting Wal-Mart’s 

contention that no genuine issue of material fact exists. The district court did 

not abuse its discretion in denying her motion. See id. at 534.

With respect to the merits of the summary judgment motion, we conclude 

that the district court properly granted Wal-Mart relief.4 We review a grant of 

summary judgment de novo, applying the same standard as the district court. 

Gen. Universal Sys. v. HAL, Inc., 500 F.3d 444, 448 (5th Cir. 2007) (citation 

and quotation marks omitted). Summary judgment is appropriate if the 

moving party can show “that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.

P. 56(a). 

Robinson’s premises liability claim fails because she presented no 

evidence that Wal-Mart had actual or constructive knowledge of the presence 

of water on the floor prior to her fall.5 See Wal-Mart Stores, Inc. v. Reece, 81 

4 We confine our analysis to Robinson’s premises liability claim because she does not 

challenge the district court’s grant of summary judgment in favor of Wal-Mart with respect 

to her other negligence claims. See Al-Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995).

5 We decline Robinson’s invitation to change Texas law for slip-and-fall actions 

involving rain. See Galindo v. Precision Am. Corp., 754 F.2d 1212, 1217 (5th Cir. 1985) (“It 

is not for us to adopt innovative theories of . . . Texas law, but simply to apply that law as it 

currently exists.”). Indeed, no case cited by Robinson supports her proposition that “[r]ain is 

an obvious event, requiring no inspection or notice.” Specifically, the court in City of San 

Antonio v. Rodriguez, 931 S.W.2d 535, 536 (Tex. 1996), held that a jury may conclude that 

the defendant had notice of a dangerous condition because there was a defect in the premises 

that would have allowed rain water to create wet spots on the floor. Contrary to Robinson’s 

suggestion, Rodriquez does not hold that the defendant had notice of a dangerous condition 

simply because it was raining. Her reliance on Corbin v. Safeway Stores, Inc., 648 S.W.2d 

292 (Tex. 1983) is misplaced. That case involved a storeowner’s creation of a hazard due to 

the way it displayed food. Id. at 297 (emphasis removed); see also Bendigo v. City of Hous., 

178 S.W.3d 112, 116 (Tex. App.–Houston [1st Dist.] 2008, no pet.) (observing that Corbin

involved a unique type of slip-and-fall claim). 

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S.W.3d 812, 813 (Tex. 2002). Robinson’s affidavit argues that Wal-Mart should 

have discovered the hazard because it was close to a cashier, two employees on 

break nearby, and the greeter. However, constructive notice cannot be 

established based on proximity alone; instead, Robinson must show that the 

hazard was present for a sufficient length of time to charge Wal-Mart with 

knowledge of it. See id. at 815 (“The rule requiring proof that a dangerous 

condition existed for some length of time before a premises owner may be 

charged with constructive notice is firmly rooted in our jurisprudence.”); see 

also Dixon v. Wal-Mart Stores, Inc., 330 F.3d 311, 314 (5th Cir. 2003) (“The 

argument that constructive knowledge can be inferred from the close physical 

proximity of an unreasonable risk to the employees of a premises owner was 

recently rejected by the Texas Supreme Court in Wal-Mart Stores, Inc. v. 

Reece.”). In the absence of evidence establishing this element of premises 

liability, the district court appropriately granted Wal-Mart summary judgment 

relief.6 See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

AFFIRMED.

6 The record does not support Robinson’s suggestion that the court granted summary 

judgment because she failed to timely respond to Wal-Mart’s motion. The magistrate judge 

expressly noted that a lack of a response was not a ground on which he could recommend 

granting summary judgment. Further, Robinson’s response was eventually filed and 

considered by the district court prior to its adoption of the magistrate judge’s 

recommendation. 

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