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Tellez-Giron v. Conn's Appliances, Inc.

United States District Court, D. New Mexico

January 29, 2018

CARLOTTA TELLEZ-GIRON, individually and as a parent and next friend of CHELSEA HERREID, a minor, Plaintiffs,


         THIS MATTER comes before the Court upon Plaintiffs' Motion to Remand to State Court (hereinafter, the “Motion”), filed November 21, 2017 (Doc. 6), and a Motion for Leave to File Surresponse, filed December 22, 2017, (Doc. 20). Having reviewed the parties' briefs and applicable law, the Court finds that Plaintiffs' Motion is not well taken and, therefore, is denied.


         This is a slip and fall case. Plaintiffs allege that on November 2, 2014, Chelsea Herreid, at the time seven years old, slipped and fell on a puddle of water in one of Defendant's stores and was injured. Chelsea broke her elbow, suffered a head injury, and suffered back and neck pain. Over approximately sixteen months, Chelsea received medical treatment. Plaintiffs seek compensation for medical expenses, pain and suffering over that sixteen month period, and, apparently, punitive damages. Plaintiff Carlotta Tellez-Giron also seeks lost income.

         In a demand letter dated December 6, 2016, Plaintiffs requested $99, 000. Plaintiffs detailed, in three single spaced pages, Chelsea's medical treatment and pain and suffering. Plaintiffs detailed medical expenses totaling approximately $14, 000. Plaintiffs alleged Chelsea Herreid suffered a head injury, concussion, possible fracture of her left elbow, knee pain, back pain, and neck pain. The letter indicates she experienced pain and suffering. Chelsea's symptoms, however, were not necessarily resolved over those sixteen months, and she was advised to seek physical therapy. Plaintiff Carlotta Tellez-Giron estimated her lost income amounted to $4, 000. Plaintiffs concluded: “[i]f this case proceeds to trial, I will ask the jury to return a verdict in an amount in excess of what my client is asking now to settle their claim.” Doc. 1-4, p. 6.

         Plaintiffs filed their state court complaint on October 4, 2017, alleging negligence, negligence per se, prima facie tort (an intentional tort), negligent supervision and training, and punitive damages. Plaintiffs also alleged that punitive damages are warranted, because Defendant acted recklessly and wantonly. They requested compensatory damages for medical expenses and pain and suffering, and punitive damages, “all in an amount not presently determinable.” Plaintiffs alleged that Chelsea suffered serious, severe and permanent injuries, which has impaired her ability to function normally. In addition to the damages previously mentioned, she requested future medical expenses.

         Defendant removed this case on October 27, 2017. Defendant attached to its Notice of Removal Plaintiffs' state court complaint and initial demand letter. After removal, Plaintiffs offered to settle this case for $70, 000, and stipulated that damages are under $75, 000. Plaintiffs filed this Motion on November 21, 2017, asserting that the Court lacks diversity jurisdiction because the amount in controversy requirement has not been met. Following briefing on the Motion for Leave to File Surresponse, this Motion is now ready to be decided.


         Plaintiffs removed this case to federal court on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). See 28 U.S.C. § 1446. Diversity jurisdiction requires diversity of citizenship and an amount in controversy in excess of $75, 000, exclusive of interest and costs. 28 U.S.C. § 1332(a). The sole issue is whether the amount in controversy exceeds $75, 000.

         “Removal statutes are to be strictly construed, and all doubts are to be resolved against removal.” Fajen v. Found. Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982) (citations omitted). “Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.” Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). “[T]here is a presumption against removal jurisdiction.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). “The removing party has the burden to show that removal was properly accomplished.” McShares, 979 F.Supp. at 1342.

         I. Amount in Controversy is More than $75, 000.

         Where the complaint does not assert an amount due, the Defendant, as the party asserting federal jurisdiction must prove by a preponderance of the evidence jurisdictional facts that the amount in controversy may exceed $75, 000. McPhail v. Deere & Co., 529 F.3d 947, 953-55 (10th Cir. 2008) (“defendant must affirmatively establish jurisdiction by proving jurisdictional facts that made it possible that $75, 000 was in play”) (citation omitted) (emphasis in original). This burden arises only when plaintiff argues the amount in controversy is insufficient to support diversity jurisdiction. Dart Cherokee Basin Operating Co., LLC v. Owen, 135 S.Ct. 547, 554 (2014). The amount in controversy “is an estimate of the amount that will be put at issue in the course of the litigation.” McPhail, 529 F.3d at 955. Once the defendant puts forth jurisdictional facts that makes it possible that the amount in controversy exceeds $75, 000, the case stays in federal court “unless it is legally certain that less than $75, 000 is at stake.” McPhail, 529 F.3d at 954 (internal quotation marks omitted), quoted in Chen v. Dillard Store Servs., Inc., 579 Fed.Appx. 618, 620-21 (10th Cir. 2014).

         Defendant may prove these jurisdictional facts by pointing to:

contentions, interrogatories or admissions in state court; by calculation from the complaint's allegations[;] by reference to the plaintiff's informal estimates or settlement demands[;] or by introducing evidence, in the form of affidavits from the defendant's employees or experts, about how much it would cost to satisfy the plaintiff's demands.

McPhail v. Deere & Co., 529 F.3d 947, 954 (10th Cir. 2008), quoting Meridian Security Ins. Co. v. Sadowski, 441 F.3d 536');">441 F.3d 536, 540-43 (7th Cir. 2006). Defendant may also look to the “substance and nature of the injuries and damages described in the pleadings” and a “plaintiff's refusal to stipulate or admit that he or she is not seeking the damages in excess of the requisite amount.” Hanna v. Miller, 163 F.Supp.2d 1302, 1306 (D.N.M. 2001) (Kelly, J.). Here, Plaintiffs argue that the amount in controversy is less than $75, 000. Defendant therefore ...

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