Santisteven v. Braum's, Inc.

MOTION to Dismiss for Lack of Jurisdiction

E.D. Tex.December 23, 2016

DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 1 8548935.2/SP/17910/0263/122316 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION ROBERT SANTISTEVAN, Plaintiff, v. BRAUM’S, INC., Defendant. § § § § § § § § § Civil Action No. 4:16-CV-00918 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT-MATTER JURISDICTION AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND BRIEF IN SUPPORT TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE: Defendant Braum’s, Inc., files this motion to dismiss Plaintiff Robert Santistevan’s suit for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and, alternatively, if this Court finds it has jurisdiction, for Plaintiff’s failure to state a claim for which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). I. STATEMENT OF ISSUES 1. Whether Plaintiff’s Complaint should be dismissed for lack of subject-matter jurisdiction when, Plaintiff has pleaded a Texas state law claim for premises-liability, seeking, among other things, exemplary damages, and Plaintiff’s claim and request for damages rests on the cursory allegation that “Defendant was mopping” and “caused Plaintiff to slip and fall,” and Plaintiff does not plead the type of injury he sustained, any indication of the amount or magnitude of damages suffered, or any other facts necessary to establish the $75,000 threshold necessary for this Court to have jurisdiction. Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 1 of 11 PageID #: 14 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 2 8548935.2/SP/17910/0263/122316 2. Alternatively, whether Plaintiff’s premises-liability claim should be dismissed for failure to state a claim when, under Texas law, generally a business owner such as Defendant has no duty to warn of open and obvious dangers or dangers of which the invitee is aware, and Plaintiff has acknowledged in his Complaint that he was aware “Defendant was mopping” prior to his fall, and that his injury was allegedly caused by “wet and slippery floors that were freshly mopped.” 3. Whether Plaintiff has failed to plead a request for exemplary damages when Plaintiff does not plead facts which would indicate his alleged damages were a result of fraud, malice, or gross negligence, as is required to recover exemplary damages under Texas law. II. FACTS Plaintiff’s Complaint1 is limited to the following facts:2 1. Plaintiff “was a paying customer,3” 2. at Defendant’s premises,4 3. when “Defendant was mopping the floor,”5 and 4. “caused Plaintiff to slip and fall,”6 5. on the “wet and slippery floors that were freshly mopped.”7 6. resulting in “serious and [unspecified] life-altering injuries,”8 and 1 See Docket No. 1 (hereinafter referred to as the “Complaint”). 2 In addition to the facts set forth in this section, Plaintiff pleads several conclusory allegations. For example, Plaintiff alleges that Defendant “did not exercise reasonable care to reduce or eliminate risk” and that Defendant was “negligent, careless or reckless.” See Complaint at ¶ 21 & 22. However, because these statements are merely conclusions, they are not entitled to an assumption of truth and should be disregarded. Ashcroft v. Iqbal,556 U.S. 662, 679 (2009). 3 Complaint at ¶ 12. 4 Id. at ¶ 11-12. 5 Id. at ¶ 13. 6 Id. 7 Id. at ¶ 18. Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 2 of 11 PageID #: 15 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 3 8548935.2/SP/17910/0263/122316 7. Plaintiff was caused to suffer: “grievous [but unspecified] bodily injuries, and to endure anxiety, pain and illness9 … and suffered: Reasonable medical care and expenses in the past …, Reasonable and necessary medical care and expenses …in the future; Physical pain and suffering in the past; Mental anguish in the past, Physical pain and suffering in the future; Mental anguish in the future [not the past or contemporaneous with the alleged injury]; Physical impairment … in the future; Loss of earning capacity … in the future [not the past or immediately after the injury], Loss of [unspecified] Body Member; [unspecified] Disfigurement in past, [unspecified] Disfigurement in future; Fear of future [unspecified] disease or condition, and cost of medical monitoring and prevention [of unspecified injury] in the future.”10 Plaintiff does not state the nature of his alleged injury, i.e. whether it was a bruise, a break, or something more. Plaintiff does not state the type of medical treatment he incurred, i.e. whether he required a hospital stay, medical tests, or a simple exam from a doctor. Plaintiff does not state whether he requires ongoing treatment and if so to what extent or for what reason. Plainly put, Plaintiff does not plead any facts that would indicate the nature of the injury or magnitude of his damages. And, although providing a laundry list of possible future damages and several damages inconsistent with the alleged slip and fall, such as “loss of body member” and “disfigurement” despite not alleging any time away from work or lost wages after the alleged incident,11 Plaintiff has wholly failed to plead facts sufficient to give rise to this court’s diversity jurisdiction, or, to the extent this Court finds it has jurisdiction, to state a claim for relief for premises-liability and the remedy of exemplary damages under Texas law. 8 Id. at ¶ 13. 9 Id. at ¶ 26. 10 Id. at ¶ 27. 11 See id. Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 3 of 11 PageID #: 16 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 4 8548935.2/SP/17910/0263/122316 III. ARGUMENT AND AUTHORITIES A. Plaintiff’s Complaint should be Dismissed for Lack of Subject-Matter Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(1). "'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). Moreover, 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 v. Allstate Ins., 243 F.3d 912, 916 (5th Cir. 2001)(citing Kokkonen, 511 U.S. at 377). If a party bases subject-matter jurisdiction on diversity grounds, as is the case here, then the amount in controversy must exceed $75,000 for the court to have jurisdiction. See 28 U.S.C. § 1332. Further, the party seeking to invoke the court’s jurisdiction bears the burden of proving up jurisdictional facts, including the amount in controversy. See St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998). The Fifth Circuit has adopted a two-step test when, as here, a plaintiff does not plead a dollar amount in controversy. See Hartford Ins. Group v. Lou-Con, Inc., 293 F.3d 908, 910 (5th Cir. 2002)(citing Greenberg, 134 F.3d at 1252)). First, the court will look to see if it is “facially apparent" from the complaint that the amount in controversy is likely to exceed the jurisdictional amount. Id. Second, if such a determination is not apparent, then the party seeking jurisdiction must prove by a "preponderance of the evidence," through the submission of summary judgment- like evidence, the jurisdictional facts in question. See id.; see also Cross v. Bell Helmets, USA, 927 F. Supp. 209, 213 (E.D. Tex. 1996). Here, the amount in controversy is not apparent from Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 4 of 11 PageID #: 17 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 5 8548935.2/SP/17910/0263/122316 the face of the Complaint, accordingly, unless Plaintiff can prove by a preponderance of the evidence that this Court has jurisdiction, his claims should be dismissed. To determine whether it is facially apparent that the amount in controversy meets jurisdictional requirements, courts consider “the nature of the claims and the types of damages sought.” See Chittick v. Farmers Ins. Exch., 844 F.Supp. 1153, 1155 (S.D. Tex. 1994). Where the complaint describes injuries and damages inadequately and without specificity, it will generally not be facially apparent that the amount in controversy is met. See Simon v. Wal-Mart, 193 F.3d 848, 851 (5th Cir. 1999); see also Emergency Staffing Solutions Inc v. Ozark Health Inc, No. 4:16-CV-00145-ALM- CAN, 2016 U.S. Dist. LEXIS 165900, at *15-16 n.5 (E.D. Tex. November 7, 2016); Cavazos v. Costco Wholesale Corp., Civil Action No. SA-14-CV-1116-XR, 2014 U.S. Dist. LEXIS 176454, at *5 (W.D. Tex. December 23, 2014); Hannah v. Allstate Tex. Lloyd’s, No EP-11-cv-269-KC, 2011 U.S. Dist. LEXIS 126725 *6-14, 2011 WL 5325257 (W.D. Tex. Nov. 2, 2011); Barreras v. Wal-Mart Stores, Inc., No. SA-13-CA-960-XR, 2013 U.S. Dist. LEXIS 154068, at *4 (W.D. Tex. Oct. 28, 2013)(concluding that although the petition pleads a number of different types of damages, there was no allegation concerning the nature of the injury and no indication of the potential magnitude of the various categories of damages, accordingly jurisdiction was not facially apparent). For example, in Cavazos, the Western District held that it was not facially apparent that the jurisdictional requirements were met when the petition alleged that the defendant negligently allowed items to remain in the walkway of its store causing the plaintiff to trip over said items injuring him, and there was no description of the nature or severity of the injury. The court reasoned that, although the petition sought "past and future pain and suffering" and "past and Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 5 of 11 PageID #: 18 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 6 8548935.2/SP/17910/0263/122316 future medical expenses," there was “no indication of the potential magnitude of these damages” and therefore, the amount in controversy was not facially apparent. Id. Similarly, in Hannah, the same court analyzed whether jurisdiction was facially apparent when Plaintiff sued her insurer for actual damages, the value of the insurance policy, and exemplary damages, among other damages, after the insurer denied her claim for wind and hail damage to her home. See Hannah, 2011 U.S. Dist. LEXIS 126725 *6-14. The court concluded that the amount in controversy was not facially apparent because there was no indication in the petition of the extent of damage or value of the property at issue. Id. at *12-14. In reaching its holding, the court explained that if it were to find that the amount in controversy was satisfied simply because the plaintiff pleaded multiple categories of damages, then “a plaintiff claiming a variety of damages would always meet the amount in controversy requirement, regardless of the true extent of the underlying loss.” Id. The court further reasoned that, if it were to hold otherwise, “[c]ases involving small amounts of harm would inappropriately be swept into federal court based simply on the fact that a plaintiff sought multiple types of damages awards.” Id. Here, like in above-discussed cases, Plaintiff pleaded a laundry-list of damage categories, but has failed to give any indication of the nature of the injury or the potential magnitude of the various categories of damages he is claiming. Accordingly, like in Hannah and Cavazos, this Court should find that it is not facially apparent from the Complaint that it has jurisdiction. Then, if Plaintiff does not submit sufficient evidence to carry his burden to prove, by a preponderance of the evidence, that the amount in controversy exceeds $75,000, Plaintiff’s claims should be dismissed for lack of subject-matter jurisdiction. See Cross, 927 F. Supp. 209 at 213; see also Hartford, 293 F.3d at 910. Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 6 of 11 PageID #: 19 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 7 8548935.2/SP/17910/0263/122316 B. Plaintiff’s Claims for Premises-Liability and Request for Exemplary Damages Should be Dismissed for Failure to State a Claim Upon Which Relief Can be Granted Pursuant to Fed. R. Civ. P. 12(b)(6). If this Court determines that it has jurisdiction to hear the Complaint, Plaintiff’s claims should, nonetheless, be dismissed for failure to state a claim upon which relief can be granted. This Court has authority to dismiss a suit for failure to state a claim upon which relief can be granted if the compliant does not state factual allegations showing that the right to relief is probable. See Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Crop. v. Twombly, 550 U.S. 544, 555- 56 & n.3 (2007). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level …” S.W. Bell Tel. LP v. City of Houston, 529 F.3d 257, 260 (5th Cir. 2008)(quoting Twombly,550 U.S. at 555). Here, Plaintiff has failed to plead facts that would establish certain elements necessary to state a claim for relief for premises-liability and for exemplary damages. Accordingly, as set forth further below, Plaintiff’s claims should be dismissed. 1. Plaintiff’s claim for Premises-Liability should be Dismissed for Failure to Plead Facts Showing Defendant Owed him a Duty as a Matter of Law. To state a claim for premises-liability, Plaintiff must plead facts showing Defendant owed a duty. Austin v. Kroger Tex. L.P., 465 S.W.3d 193, 201 (Tex. 2015). In Austin, the Texas Supreme Court held that “in most cases, the landowner’s premises-liability duty is to either make safe or warn invitees of concealed dangers of which the landowner is or should be aware but which the invitee is not.” Id.(emphasis added). Moreover, “[i]n most cases, a landowner owes no duty to protect an invitee against a dangerous condition that is open and obvious or known to the invitee.” Id. (emphasis added). Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 7 of 11 PageID #: 20 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 8 8548935.2/SP/17910/0263/122316 Here, Plaintiff has pleaded that he slipped and fell because “Defendant was mopping the floor.” See Complaint at ¶ 13. Plaintiff has further pleaded that the floors were “wet and slippery” because they were “freshly mopped.” See id at ¶ 18. By pleading his awareness that Defendant “was mopping,” Plaintiff has pleaded himself out of premises-liability. More specifically, Plaintiff’s facts, even if true, fail to establish a duty owed by Defendant because Plaintiff admits that he was aware that “Defendant was mopping” and that the floor was wet as a result. See Austin, 465 S.W.3d at 204. Accordingly, because Plaintiff has failed to plead facts that would establish a duty owed by Defendant, Plaintiff’s claim for premises-liability should be dismissed. 2. Plaintiff’s Request for Exemplary Damages should be Dismissed . To adequately plead the remedy of exemplary damages, Plaintiff must allege facts that, if true, would establish by clear and convincing evidence that the harm with respect to which Plaintiff seeks recovery of exemplary damages results from: (1) fraud); (2) malice; or (3) gross negligence. See Sunshine Kids Found. v. Sunshine Kids Juvenile Prods., No. H-09-2496, 2009 U.S. Dist. Lexis 117986 *45-47 (S.D. Tex. Dec. 18, 2009)(citing TEX. CIV. PRAC. & REM. CODE § 41.003(a)). Based on the conclusory recitation of the elements of gross negligence set forth in the Complaint, it appears Plaintiff’s exemplary damages request is based on gross negligence. See Complaint at ¶ 24-25. Under Texas law, gross negligence is defined as: an act or omission, which "when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others" and "of which the actor has actual, subjective awareness of the risk involved, but Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 8 of 11 PageID #: 21 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 9 8548935.2/SP/17910/0263/122316 nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others." TEX. CIV. PRAC. & REM. CODE ANN. § 41.001(11). But, to establish gross negligence, Plaintiff must prove by clear and convincing evidence that Defendant’s alleged conduct created an extreme risk of harm. See U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). Moreover, the "extreme risk" involved in the alleged grossly negligent conduct cannot be "a remote possibility or even a high probability of minor harm, but rather the likelihood of the plaintiff's serious injury." Id. Plaintiff’s pleaded allegations here, even if true, fail to clear this threshold. Specifically, Plaintiff alleges “Defendant was mopping the floor,” and “caused Plaintiff to slip and fall.” Mopping the floor, however, is not inherently dangerous such that an allegation of mopping, alone, would equate to “extreme risk” or the likelihood of “serious injury.” See Serrano- Cordero v. Kroger Tex. L.P., No. 4:10cv483, 2012 U.S. Dist. LEXIS 128351 *21-25 (E.D. Tex. April 15, 2012)(J. Mazzant). In Serrano, this Court, in the summary judgment context, looked at whether an allegation of gross negligence by an employee who slipped on a floor he had mopped was sufficient. See id. This Court held that, viewing the evidence in the light most favorable to the plaintiff, mopping, even when coupled with facts indicating the employee was not adequately trained and the defendants’ slip-resistant shoe policy was deficient, did not involve an extreme degree of risk. Id. at 24. This Court further explained that while the plaintiff’s evidence may suggest the possibility or even the probability of injury that did not convert the risk of injury to likely as required to receive exemplary damages. Id. Here, although in the motion to dismiss context, the facts alleged are even less indicative of gross negligence because all that is alleged is that the Defendant mopped. Thus, to find Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 9 of 11 PageID #: 22 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 10 8548935.2/SP/17910/0263/122316 Plaintiff’s pleadings sufficient, this Court would have to find that an allegation of mopping alone is sufficient to support a claim that requires extreme risk and the likelihood of serious injury. Because an allegation of “mopping” alone is not sufficient, Plaintiff’s request for exemplary damages should be dismissed. IV. PRAYER Based on the foregoing, this Court lacks subject-matter jurisdiction over this matter, and the Complaint fails to state a claim upon which relief may be granted. Accordingly, Defendant Braum’s, Inc. respectfully requests that the Court dismiss Plaintiff Robert Santisteven’s Complaint and grant it such other relief to which it may show itself justly entitled, in law or in equity. Respectfully submitted, SCOTT A. SHANES State Bar No. 00784953 scott.shanes@strasburger.com SARAH N. WARINER State Bar No. 24065078 Sarah.wariner@strasburger.com STRASBURGER & PRICE, LLP 2600 Dallas Parkway, Suite 600 Frisco, Texas 75034 (469) 287-3900 (Telephone) (469) 287-3999 (Facsimile) ATTORNEYS FOR DEFENDANT Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 10 of 11 PageID #: 23 DEFENDANT BRAUM’S, INC.’S MOTION TO DISMISS AND BRIEF IN SUPPORT PAGE 11 8548935.2/SP/17910/0263/122316 CERTIFICATE OF SERVICE This is to certify that on December 23, 2016, a true and correct copy of the forgoing document was submitted electronically using this Court’s electronic case filing system and that the following counsel of record have been served electronically or by another manner as authorized by the Federal Rules of Civil Procedure and this Court’s local rules: Daryoush Toofanian Rad Law Firm 12900 Preston Rd., Ste. 900 Dallas, Texas 75230 Fax. (972)661-3537 dtoofanian@radlawfirm.com SARAH N. WARINER Case 4:16-cv-00918-ALM-KPJ Document 4 Filed 12/23/16 Page 11 of 11 PageID #: 24