Blanchard v. Wal-Mart Stores, Texas, Lp

• Decision Date: 22 February 2005
• Docket Number: No. CIV.A. 1:04CV765.,CIV.A. 1:04CV765.
• Citation: 368 F.Supp.2d 621
• Parties: Esther O'Dell BLANCHARD, Plaintiff, v. WAL-MART STORES TEXAS, LP, d/b/a Wal-Mart Store # 214, Defendant.
• Court: U.S. District Court — Eastern District of Texas

368 F.Supp.2d 621

Esther O'Dell BLANCHARD, Plaintiff, v. 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.

February 22, 2005.

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

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

MEMORANDUM AND ORDER

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 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 L.Ed.2d 273 (2000); Frank, 128 F.3d at 922.

Federal courts have subject matter jurisdiction and are authorized to entertain causes of action only where a question of federal law is involved or where there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000.00. See 28 U.S.C. §§ 1331, 1332; Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, ___, 124 S.Ct. 1920 1923 n. 1, 158 L.Ed.2d 866 (2004); Howery, 243 F.3d at 914-15; Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir.2000); Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1330 (5th Cir.1995). In order to determine whether jurisdiction is present in a removed action, the claims set forth in the state court petition are considered as of the time of removal. See Manguno, 276 F.3d at 723; Howery, 243 F.3d at 916; Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.2000); Texas Beef Group v. Winfrey, 201 F.3d 680, 686 (5th Cir.2000); Cavallini v. State Farm Mut. Auto. Ins. Co., 44 F.3d 256, 264 (5th Cir.1995). In cases where, as here, there is no suggestion that a federal question is involved, subject matter jurisdiction exists only if there is complete diversity among the parties and the amount in controversy exceeds $75,000.00. See 28 U.S.C. § 1332; Caterpillar Inc., 519 U.S. at 68, 117 S.Ct. 467; Heritage Bank v. Redcom Lab., Inc., 250 F.3d 319, 322 (5th Cir.), cert. denied, 534 U.S. 997, 122 S.Ct. 468, 151 L.Ed.2d 384 (2001); Gebbia, 233 F.3d at 882. Complete diversity requires that no plaintiff be a citizen of the same state as any defendant. See Caterpillar Inc., 519 U.S. at 68, 117 S.Ct. 467; Heritage Bank, 250 F.3d at 323; Howery, 243 F.3d at 920. Furthermore, removal is appropriate only if none of the parties properly joined and served as defendants is a citizen of the state in which the action is brought. See 28 U.S.C. § 1441(b).

In order to determine the citizenship of a limited partnership, the court must ascertain the citizenship of both its general and limited partners. See Carden v. Arkoma Assocs., 494 U.S. 185, 195, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990); see also Grupo Dataflux, 124 S.Ct. at 1929; Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 856 n. 3 (5th Cir.2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2421, 158 L.Ed.2d 983 (2004); Bankston v. Burch, 27 F.3d 164, 166 (5th Cir.1994); Newport Ltd. v. Sears, Roebuck & Co., 941 F.2d 302, 304 (5th Cir.1991), cert. denied, 502 U.S. 1096, 112 S.Ct. 1175, 117 L.Ed.2d 420 (1992). For purposes of determining diversity jurisdiction of an artificial entity, such as a limited partnership, the court "adhere[s] to [the] oft-repeated rule that diversity jurisdiction in a suit by or against the entity depends on the citizenship of `all the members.'" Carden, 494 U.S. at 195, 110 S.Ct. 1015 (quoting Chapman v. Barney, 129 U.S. 677, 682, 9 S.Ct. 426, 32 L.Ed. 800 (1889)).

The United States Court of Appeals for the Fifth Circuit has declined to express an opinion as to the manner in which the citizenship of a limited liability company is determined for diversity purposes. See Unity Communications Inc. v. Unity Communications of Colo. LLC, 105 Fed.Appx. 546, 547 n. 1, 2004 WL 1576550 (5th Cir.2004). The Fifth Circuit has, however, treated other unincorporated entities, for diversity purposes, in the same manner as a limited partnership and looked to the membership of all its members. See Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 3 F.3d 877, 882 (5th Cir.1993), cert. denied, 511 U.S. 1032, 114 S.Ct. 1541, 128 L.Ed.2d 193 (holding "an unincorporated association is considered to have the citizenship of its members"); Temple Drilling Co. v. Louisiana Ins. Guar. Ass'n, 946 F.2d 390, 394 (5th Cir.1991) (finding "in light of Carden, [defendant, an unincorporated association,] has the citizenship for diversity purposes of each of its constituent member insurers"); Hummel v. Townsend, 883 F.2d 367, 369 (5th Cir.1989) (noting the "well-settled principle that an unincorporated association is deemed a citizen of every state in which its members reside").

A number of federal appellate courts have examined this question and found that the citizenship of a limited...