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Butler v. Wal-Mart Stores, Inc.

United States District Court, Fifth Circuit

October 10, 2013

AUSTRALIA BUTLER, Plaintiff,
v.
WAL-MART STORES, INC. and KEN HERRING, Defendants.

MEMORANDUM OPINION GRANTING PLAINTIFF'S MOTION TO REMAND

GLEN H. DAVIDSON, Senior Judge.

Presently before this Court is Plaintiffs motion to remand the case to state court [12]. Upon due consideration, the Court is of the opinion that the motion should be granted due to lack of diversity jurisdiction.

A. Factual and Procedural Background

On November 21, 2012, Plaintiff Australia Butler ("Plaintiff') filed a complaint in the Circuit Court of Lafayette County, Mississippi, against Defendant Wal-Mart Stores, Inc. ("Wal-Mart") to recover for injuries she sustained as result of a slip-and-fall incident in a Wal-Mart store. Plaintiff alleges that while she was shopping she inadvertently stepped in a liquid spilled on the floor and slipped and fell onto the hard tile floor, sustaining torn breast tissue and loss of consciousness. She further alleges that since the alleged incident she has suffered constant debilitating headaches and has incurred significant medical expenses, and that despite knowledge of the foregoing, Wal-Mart has consistently refused to take any corrective actions in this matter. She asserts causes of action for premises liability and negligence, and seeks compensatory damages in an unspecified amount with attorney's fees, costs, and pre- and post-judgment interest.

On December 20, 2012, Plaintiff filed an amended complaint [4] wherein she adds the subject Wal-Mart store's then-manager, Ken Herring ("Herring"), as a Defendant. On December 26, 2012, Wal-Mart filed an answer [5] to the initial complaint. Subsequently, Wal-Mart removed this case to this Court on the basis of diversity jurisdiction and filed an answer to the amended complaint [8]. Plaintiff then filed the present motion to remand [12] the case to state court, Wal-Mart filed a response, and Plaintiff filed a reply. The motion to remand [12] is now ripe for review.

B. Standard ofReview

The removal statute provides in pertinent part:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.c. § 1441(a). A case may be remanded upon a motion filed within thirty days after the filing of the notice of removal on any defect except subject matter jurisdiction, which can be raised at any time by any party or sua sponte by the court. See Wachovia Bank, NA. v. PICC Prop. & Cas. Co. Ltd., 328 F.Appx. 946, 947 (5th Cir. 2009). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). Any "doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction." Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).

C. Discussion

Federal diversity jurisdiction requires complete diversity between all plaintiffs and all defendants and an amount in controversy that exceeds $75, 000.00. See 28 U.S.C. § 1332(a). Plaintiff contends that removal is improper and remand is warranted because (I) Wal-Mart's notice of removal was procedurally defective; (2) the jurisdictional amount in controversy is not satisfied; and (3) complete diversity of citizenship does not exist between Plaintiff and Defendants. Plaintiff also seeks costs and attorney's fees incurred in filing the present motion to remand. The Court addresses each ground for remand in tum.

(1) Removal Procedure

First, Plaintiff contends that Wal-Mart's notice of removal is procedurally deficient because Herring did not join in the notice. Wal-Mart argues that its notice of removal was not procedurally defective because Herring submitted an affidavit in support of the notice of removal, the Fifth ...


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