Bourne v. Wal-Mart Stores, Inc.

• Decision Date: 10 October 2008
• Docket Number: Civil Action No. 1:08-CV-367.
• Citation: 582 F.Supp.2d 828
• Parties: Mary BOURNE, Plaintiff, v. WAL-MART STORES, INC. and Renee Berryhill, Defendants.
• Court: U.S. District Court — Eastern District of Texas

Page 828

582 F.Supp.2d 828

Mary BOURNE, Plaintiff, v. WAL-MART STORES, INC. and Renee Berryhill, Defendants.

Civil Action No. 1:08-CV-367.

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

October 10, 2008.

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Gilbert T. Adams, Jr., Alto V. Watson, III, Law Offices of Gilbert T. Adams, Beaumont, TX, for Plaintiff.

Gordon R. Pate, Karen Lee Spivey, Pate & Spivey LLP, Beaumont, TX, for Defendants.

MEMORANDUM AND ORDER

MARCIA A. CRONE, District Judge.

Pending before the court is Plaintiff Mary Bourne's ("Bourne") Motion to Remand (# 7). Bourne seeks remand to state court of her action against Defendants Wal-Mart Stores, Inc. ("Wal-Mart") and Renee Berryhill ("Berryhill") (collectively, "Defendants"), on the grounds that Berryhill is a properly joined defendant and her presence in the lawsuit, as a resident and citizen of the State of Texas, defeats diversity jurisdiction pursuant to 28 U.S.C. § 1441(b). Additionally, Bourne claims that the amount in controversy does not exceed $75,000.00, 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 May 29, 2008, Bourne filed her Original Petition in the 58th Judicial District Court of Jefferson County, Texas, asserting claims for negligence and breach of warranty. In her petition, Bourne alleges that on or about September 13 or 14, 2007, she was shopping with her daughter in a Wal-Mart store when she "slipped in what she later learned to be a hand-held shopping basket which was previously placed on the floor" of a checkout aisle. At the time of the incident, Berryhill was the assistant manager of the Wal-Mart store. Bourne contends Defendants' negligence created an unreasonable risk of harm and proximately caused her injuries. Specifically, Bourne avers that Defendants knew or should have known that the hand-held shopping basket was on the floor of the checkout aisle, yet failed to exercise reasonable care to alert and protect Bourne from the hazard. Bourne alleges that, as a result of Defendants' negligence, she suffered "serious, continual and permanent physical injury, loss of good health and damages." Accordingly, Bourne seeks compensatory damages for reasonable and necessary costs of medical care and treatment of injuries, loss of past and future earnings, past and future physical pain, mental anguish, past and future physical impairment, past and future physical disfigurement, as well as court costs, and prejudgment and post-judgment interest. Bourne also seeks to recover exemplary and punitive damages.

On July 2, 2008, Wal-Mart removed the case from state court to federal court on the basis of diversity jurisdiction, alleging that complete diversity exists among the real parties in interest and that the amount in controversy exceeds $75,000.00, exclusive of interest and costs.¹ It is undisputed that Bourne is a citizen and resident of the State of Texas and that Wal-Mart is a Delaware corporation, with its principal place of business in the State of Arkansas. Wal-Mart asserts that Berryhill should be dismissed as a party to this action and her citizenship disregarded for jurisdictional purposes because she was fraudulently joined. Additionally, Wal-Mart contends that based on the damages Bourne seeks to recover, it is apparent from the face of the Original Petition that the amount in controversy exceeds $75,000.00. On July 14, 2008, Bourne filed the instant motion to remand, contending that Berryhill was properly joined and the amount in controversy does not exceed $75,000.00. Accordingly, Bourne asserts that federal jurisdiction is lacking.

II. Analysis

A. Federal Jurisdiction in Removed Actions

"`Federal courts are courts of limited jurisdiction.'" Rasul v. Bush, 542 U.S. 466, 489, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)); accord Johnson v. United States, 460 F.3d 616, 621 n. 6 (5th Cir.2006); McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 337 (5th Cir.2004); 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). "`They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.'" Rasul, 542 U.S. at 489, 124 S.Ct. 2686 (quoting Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673 (citations omitted)). 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, 511 U.S. at 377, 114 S.Ct. 1673); see also Boone v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir.2005). 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); Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 571, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004); McDonal v. Abbott Labs., 408 F.3d 177, 182 (5th Cir.2005).

When considering a motion to remand, "[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002); accord DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir.2007); Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir.2005); Boone, 416 F.3d at 388; Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir.2003); Howery, 243 F.3d at 919. "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); accord Smith v. Baker Hughes Int'l Branches, Inc., 131 F.Supp.2d 920, 921 (S.D.Tex. 2001). "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(a)); see Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). "The removal statute ties the propriety of removal to the original jurisdiction of the federal district courts." Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir.1997); see 28 U.S.C. § 1441(a). Because removal raises significant federalism concerns, the removal statutes are strictly and narrowly construed, with any doubt resolved 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); Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir.2007); In re Hot-Hed Inc., 477 F.3d at 323; 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.

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, exclusive of interest and costs. See 28 U.S.C. §§ 1331, 1332; Arbaugh v. Y & H Corp., 546 U.S. 500, 513, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005); McDonal, 408 F.3d at 181; Howery, 243 F.3d at 914-15; Hart v. Bayer Corp., 199 F.3d 239, 246 (5th Cir.2000). 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 date of removal. See Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 391, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998); McGowin v. ManPower Int'l, Inc., 363 F.3d 556, 558 n. 1 (5th Cir.2004); 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). In removed cases when, 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; Lincoln Prop. Co., 546 U.S. at 89, 126 S.Ct. 606; Exxon Mobil Corp., 545 U.S. at 552, 125 S.Ct. 2611; Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996); Heritage Bank v. Redcom Labs., Inc., 250 F.3d 319, 323 (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 Exxon Mobil Corp., 545 U.S. at 552, 125 S.Ct. 2611; 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 are citizens of the state in which the action was brought. See 28 U.S.C. § 1441(b); Lincoln Prop. Co., 546 U.S. at 89, 126 S.Ct. 606; Gasch, 491 F.3d at 281; Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 531-32 (5th Cir.2006).

B. Fraudulent Joinder

In the case at bar, although there is no dispute that Plaintiff Bourne and Defendant Wal-Mart are citizens of different states, Bourne asserts that complete diversity is lacking because Berryhill, like Bourne, is a citizen of Texas.² Therefore, to establish the...