368 F.Supp.2d 621 (E.D.Tex. 2005), Civ. A. 1 04CV765, Blanchard v. Wal-Mart Stores, Texas, LP

Docket NºCiv. A. 1 04CV765
Citation368 F.Supp.2d 621
Party NameBlanchard v. Wal-Mart Stores, Texas, LP
Case DateFebruary 22, 2005
CourtUnited States District Courts, 5th Circuit, Eastern District of Texas

Page 621

368 F.Supp.2d 621 (E.D.Tex. 2005)

Esther O'Dell BLANCHARD, Plaintiff,


WAL-MART STORES TEXAS, LP, d/b/a Wal-Mart Store # 214, Defendant.

No. CIV.A. 1:04CV765.

United States District Court, E.D. Texas, Beaumont Division.

Feb. 22, 2005

Page 622

Blair Allan Bisbey, of Seale, Stover & Bisbey, Jasper, TX, for Plaintiff.

Karen Lee Spivey of Pate & Spivey, L.L.P., Beaumont, TX, for Defendant.


CRONE, District Judge.

Pending before the court is Plaintiff Esther O'Dell Blanchard's ("Blanchard") Motion to Remand (# 7). Blanchard seeks remand to state court of her action against Defendant Wal-Mart Stores Texas, LP, d/b/a Wal-Mart Store # 214 ("Wal-Mart Texas, LP"), claiming that there is a lack of diversity of citizenship between the parties, thereby depriving this court of subject matter jurisdiction. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that remand is not warranted.

I. Background

On November 17, 2004, Blanchard filed her original petition styled Esther O'Dell Blanchard v. Wal-Mart Stores, LP, d/b/a Wal-Mart Stores # 214, No. 26068, in the First Judicial District Court of Jasper County, Texas, asserting claims for negligence and premises liability. It is undisputed that Plaintiff Blanchard is a citizen and resident of Jasper County, Texas. Defendant Wal-Mart Texas, LP, is a limited partnership. Its general partner is Wal-Mart Stores East, LP ("Wal-Mart East, LP"), a limited partnership, and its limited partner is Wal-Mart Rio Grande Investment, LLC ("Wal-Mart Rio Grande"), a limited liability company.

In her state court petition, Blanchard alleges that on December 30, 2003, while shopping at Defendant's store in Jasper, Texas, she was "injured when her right foot caught on a piece of metal sticking up at the threshold of the main entrance to the store, causing her to trip and fall forward, striking her head on the floor." She claims that the metal protruding from the entrance door's threshold created a dangerous condition and an unreasonable risk of harm. According to Blanchard, Defendant's employees knew or reasonably should have known of the danger, but they did not exercise ordinary care to protect her from the danger by adequately warning her or making the condition reasonably safe. Blanchard seeks damages for alleged physical pain, mental anguish, disfigurement, physical impairment, lost earnings and earning capacity, reasonable and necessary medical care, as well as court

Page 623

costs, and pre-judgment and post-judgment interest.

On December 9, 2004, Wal-Mart Texas, LP, removed the case to this court on the basis of diversity of citizenship, alleging that complete diversity exists between the parties and that the amount in controversy exceeds $75,000.00, exclusive of interest and costs. See 28 U.S.C. § 1332. On December 21, 2004, Blanchard filed a motion to remand the case to state court, contending that Defendant "has not met its burden of proving that there is complete diversity of citizenship of all plaintiffs and defendants."

II. Analysis

A. Federal Jurisdiction in Removed Actions

"Federal courts are courts of limited jurisdiction." Peoples Nat'l Bank v. Office of Comptroller of the Currency of United States, 362 F.3d 333, 336 (5th Cir.2004); accord Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993, 122 S.Ct. 459, 151 L.Ed.2d 377 (2001); Murphy v. Uncle Ben's, Inc., 168 F.3d 734, 741 (5th Cir.1999). The court "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery, 243 F.3d at 916 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). In an action that has been removed to federal court, a district court is required to remand the case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c).

When considering a motion to remand, the removing party bears the burden of showing that federal jurisdiction exists and that removal was proper. See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002); Frank v. Bear Stearns & Co., 128 F.3d 919, 921-22 (5th Cir.1997); De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.), cert. denied, 516 U.S. 865, 116 S.Ct. 180, 133 L.Ed.2d 119 (1995); Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365 (5th Cir.1995). "This extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the requirements of the removal statute." Albonetti v. GAF Corp.-Chem. Group, 520 F.Supp. 825, 827 (S.D.Tex.1981). "Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citing 28 U.S.C. § 1441); see Aetna Health Inc. v. Davila, 542 U.S. 200, ----, 124 S.Ct. 2488, 2494, 159 L.Ed.2d 312 (2004). "The removal statute ties the propriety of removal to the original jurisdiction of the federal district courts." Frank, 128 F.3d at 922; see 28 U.S.C. § 1441(a). Because removal raises significant federalism concerns, the removal statutes must be strictly and narrowly construed, with any doubt construed against removal and in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir.2002); Beiser v. Weyler, 284 F.3d 665, 674 (5th Cir.2002); Manguno, 276 F.3d at 723; Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir.), cert. denied, 530 U.S. 1229, 120 S.Ct. 2658, 147...

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