United States District Court, D. Nevada
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE.
Joyce Ann Roberts sued Walmart and its store manager Art
Martinez after she slipped, fell and was injured in a Walmart
store in Las Vegas, Nevada. (ECF No. 1-1.) Defendants
Walmart, Inc. and Walmart Stores East, LP
(“Walmart”) removed the case (ECF No. 1 (Petition
for Removal (“Petition”))), but the Court issued
an order to show cause why the case should not be remanded
for an insufficient amount in controversy
(“Order”) (ECF No. 6). Having reviewed
Walmart’s response to the Order (ECF No. 9)
(“Response”), the Court will dismiss this case
for lack of subject matter jurisdiction because Walmart has
failed to carry its burden to show the amount in controversy
requirement is satisfied. Accordingly, the Court will remand this
case to the Eighth Judicial District Court.
filed her Complaint in the Eighth Judicial District Court in
and for the County of Clark (ECF No. 1 at 2). Plaintiff
alleges that on February 6, 2017, she injured herself during
a slip and fall at a Walmart store located at 2310 E. Serene
Ave. in Las Vegas. (ECF No. 1-1.) She asserts two claims: (1)
negligence; and (2) respondeat superior, negligent
entrustment, hiring, training, and supervision (Id.
at 4, 11.) Plaintiff seeks general and special damages,
“[c]osts of this suit, ” attorneys’ fees,
and prejudgment interest. (Id. at 14-15.) Walmart
removed based on diversity jurisdiction (ECF No. 1 at 3-4).
courts are courts of limited jurisdiction, having
subject-matter jurisdiction only over matters authorized by
the Constitution and Congress. See U.S. Const. art.
III, § 2, cl. 1; see also, e.g., Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). A suit filed in state court may be removed to federal
court if the federal court would have had original
jurisdiction over the suit at commencement of the action.
See 28 U.S.C. § 1441(a). However, courts
strictly construe the removal statute against removal
jurisdiction, and “[f]ederal jurisdiction must
be rejected if there is any doubt as to the right of removal
in the first instance.” Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992) (emphasis added). The party
seeking removal bears the burden of establishing federal
jurisdiction. See Durham v. Lockheed Martin Corp.,
445 F.3d 1247, 1252 (9th Cir. 2006).
establish subject matter jurisdiction pursuant to diversity
of citizenship under § 1332(a), the party asserting
jurisdiction must show: (1) complete diversity of citizenship
among opposing parties and (2) an amount in controversy
exceeding $75, 000. See 28 U.S.C. § 1332(a).
Where it is not facially evident from the complaint that $75,
000 was in controversy at the time of removal, a defendant
seeking removal must prove, by a preponderance of the
evidence, that the amount in controversy requirement is met.
See Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117
(9th Cir. 2004).
preponderance of the evidence standard, a removing defendant
must “provide evidence establishing that it is more
likely than not that the amount in controversy exceeds”
the jurisdictional minimum. Id. (internal quotation
and citations omitted). As to the kind of evidence that may
be considered, the Ninth Circuit has adopted the
“practice of considering facts presented in the removal
petition as well as any ‘summary-judgment- type
evidence relevant to the amount in controversy at the time of
removal.’” Matheson v. Progressive Specialty
Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (quoting
Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d
373, 377 (9th Cir. 1997)). Conclusory allegations are
insufficient. See Id . (citation omitted).
does not request a specific amount of damages in the
Complaint, instead alleging general damages in excess of $15,
000. (See ECF No. 1-1.) Thus, Walmart must prove, by
a preponderance of the evidence, that the amount in
controversy requirement is satisfied. See Valdez,
372 F.3d at 1117. Walmart has not made this showing.
Response to the Court’s Order largely reiterates its
Petition-which relied on speculation-and rests on the same
thin evidence that this Court indicated was insufficient. In
its Petition, Walmart contends that Plaintiff seeks $47,
597.91 for past medical specials which, “coupled with
the fact that Plaintiff underwent multiple procedures to her
neck, ” establishes damages in excess of the $75, 000
jurisdictional prerequisite. (ECF No. 1 at 2 (citing ECF No.
1-3 (“Plaintiff’s Request for Exemption from
Arbitration”)).) In its Order, the Court highlighted
that Walmart relies purely on speculation that Plaintiff will
seek an additional damage for medical treatment in excess of
$27, 402.09 to meet the amount in controversy requirement.
(ECF No. 6 at 1-2.) Walmart now contends in its Response that
Plaintiff’s Complaint seeks, in addition to past
medical expenses, (1) future medical expenses, (2)
miscellaneous expenses incidental thereto, (3) lost future
wages, (4) attorneys’ fees, and (5) damages for pain
and suffering. (ECF No. 9 at 3-4.) Walmart argues that the
amount in controversy will therefore exceed $75, 000.
Walmart’s contention-again-rests on speculation.
Walmart omits the fact that the Complaint requests the first
three expenses “in a sum presently
unascertainable.” (ECF No. 1-1 at 11, 15.) Moreover,
the Complaint is silent on the amount of attorneys’
fees Plaintiff seeks. See Singh v. Glenmark Phargenerics,
Inc., No. 2:14-cv-154-GMN-CWH, 2014 WL 4231364, at *2
(D. Nev. Aug. 26, 2014) (denying a defendant’s attempt
to use plaintiff’s request for attorneys’ fees to
establish amount in controversy because defendant did not
provide evidence of an amount or any basis under which an
award may have been warranted). Although the Complaint
requests damages for pain and suffering in excess of $15, 000
(ECF No. 1-1 at 10, 14), Walmart has produced no
summary-judgment-type evidence to show that Plaintiff seeks
additional damages in excess of $27, 402.09 to meet the
jurisdictional amount. See, e.g., Ibarra v.
Manheim Invs., Inc., 775 F.3d 1193 (9th Cir. 2015)
(internal quotation and citation omitted) (“The parties
may submit evidence outside the complaint, including
affidavits or declarations, or other summary-judgment-type
evidence relevant to the amount in controversy at the time of
removal.”); see also McCaa v. Massachusetts Mut.
Life Ins. Co., 330 F.Supp.2d 1143, 1150 (D. Nev. 2004)
(holding that, where the complaint fails to specify damages,
the court will not infer that the amount in controversy
exceeds the statutory threshold).
on Plaintiff’s Request for Exemption from Arbitration,
the amount in controversy here is $47, 597.91. (ECF No. 1 at
2; ECF No. 9 at 3; ECF No. 1-3 at 3.) This amount is below
the jurisdictional minimum. See 28 U.S.C. §
1332(a). Therefore, and especially considering that
“[f]ederal jurisdiction must be rejected if there is
any doubt as to the ...