United States District Court, D. New Mexico
CARLOTTA TELLEZ-GIRON, individually and as a parent and next friend of CHELSEA HERREID, a minor, Plaintiffs,
CONN'S APPLIANCES, INC, d/b/a CONN'S HOME PLUS, and JOHN DOE, Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS'
MOTION TO REMAND
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.
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.
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.
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.
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.
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.
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.
Amount in Controversy is More than $75, 000.
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).
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
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 ...