Severino v. Premiere Surgical Arts et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
YANGENERLY SEVERINO,
Plaintiff,
v.
PREMIERE SURGICAL ARTS, et al.,
Defendants.
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CIVIL ACTION NO. H-25-1368
MEMORANDUM AND ORDER
The plaintiff, Yangenerly Severino filed suit in this court based on diversity jurisdiction.
(Docket Entry No. 1). She brings three claims under state common law: breach of contract, unjust
enrichment, and fraudulent misrepresentation. 	(Id. at 2). 	As damages, she requests a “[t]otal
refund” of approximately $18,000, which includes the money the defendants allegedly unlawfully
retained for surgery that never happened as well as her travel expenses; compensation for
emotional distress and financial hardship; and court costs and attorneys’ fees.1 (Id. at 2–3). She
does not allege the citizenship of either defendant—Premiere Surgical Arts and Dr. Calvin Jung—
but rather asserts that there is diversity because “the parties are citizens of different states.” (Id. at
1). 	The defendants have moved to dismiss, arguing—among other things—that dismissal is
1 Severino is proceeding pro se and cannot obtain attorneys’ fees, even though Texas provides for attorneys’
fees in breach of contract cases and such fees would otherwise be included in the amount in controversy.
Edwards v. Palmer Fin. Consultant, Inc., No. A-24-CV-1012-DAE, 2025 WL 1569486, at *6 (W.D. Tex.
Apr. 9, 2025), report and recommendation adopted, 2025 WL 1379417 (W.D. Tex. May 13, 2025).
United States District Court
Southern District of Texas
ENTERED
April 29, 2026
Nathan Ochsner, Clerk
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necessary under Rule 12(b)(1) because Severino has failed to allege both the citizenship of the
parties and that the amount in controversy requirement is met. (Docket Entry No. 29 at 4–6).2
“Federal courts are courts of limited jurisdiction. They possess only that power authorized
by the Constitution and statute, which is not to be expanded by judicial decree.” 	Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citation omitted). 	“Two statutes
authorize the lion’s share of federal-court litigation: 28 U.S.C. § 1331, which gives federal courts
jurisdiction over cases that arise under federal law, and 28 U.S.C. § 1332, which establishes federal
courts’ ‘diversity’ jurisdiction.” Flores v. Harbor Freight Tools USA, Inc., 810 F. Supp. 3d 796,
797 (E.D. Tex. 2025). To establish diversity jurisdiction, a plaintiff must allege that the civil action
is (1) between citizens of different states, and (2) that the amount in controversy is greater than
$75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a).
“The party seeking to invoke federal diversity jurisdiction bears the burden of establishing
both that the parties are diverse and that the amount in controversy exceeds $75,000.” Garcia v.
Koch Oil Co. of Tex., Inc., 351 F.3d 636, 638 (5th Cir. 2003). “For diversity jurisdiction, the party
asserting federal jurisdiction must distinctly and affirmatively allege the citizenship of the parties.”
Howery v. Allstate, 243 F.3d 912, 919 (5th Cir. 2001) (cleaned up). In addition, “[i]n general, a
plaintiff’s good faith assertion that the amount in controversy exceeds $75,000 sufficiently invokes
diversity jurisdiction.” Chauvin v. Symetra Life Ins. Co., 422 F. Supp. 3d 1145, 1151 (E.D. La.
2019). However, “bare allegations of jurisdictional facts have been held insufficient to invest a
federal court with jurisdiction.” St. Paul Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253
(5th Cir. 1998) (cleaned up). “When a complaint does not allege a specific amount of damages,
2 The defendants also move to dismiss under Rule 12(b)(4) and 12(b)(5), arguing that Severino failed to
timely serve them with the complaint. (Docket Entry No. 29 at 1–2). However, the court explicitly provided
Severino with leave to serve the defendants after Rule 4m’s default deadline. (Docket Entry No. 25).
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the party invoking federal jurisdiction must prove by a preponderance of the evidence that the
amount in controversy exceeds the jurisdictional amount.” Id.
The defendants are correct that Severino has failed to bear her burden of demonstrating
that there is diversity jurisdiction. Severino has not sufficiently alleged the citizenship of either
defendant. 	“For individuals, ‘citizenship has the same meaning as domicile,’ and ‘the place of
residence is prima facie the domicile.’” Cadence Bank v. Johnson, 160 F.4th 197, 202 (5th Cir.
2025) (quoting MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 929 F.3d 310, 313 (5th Cir.
2019)). “For LLCs, citizenship is based on ‘the citizenship of its members.’” Id. (quoting Harvey
v. Grey Wolf Drilling, 542 F.3d 1077, 1080 (5th Cir. 2008)). “And for corporations, citizenship is
based on a corporation’s state of incorporation and principal place of business.” Id.
Severino does not sufficiently plead the citizenship of either defendant; she merely asserts
that because she is a resident of New York and “the parties are citizens of different states,” there
is diversity jurisdiction. 	(Docket Entry No. 1 at 1). 	As explained above, the party seeking to
invoke federal jurisdiction must “specifically allege” the citizenship of all parties. 	See Am.
Motorists Ins. Co. v. Am. Emp. Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979) (per curiam) (“[T]he
plaintiff’s complaint must specifically allege each party’s citizenship, and these allegations must
show that the plaintiff and defendant are citizens of different states.”). 	In her response brief,
Severino argues that because the defendants identify Premier Surgical Arts as a PLLC (something
she did not do in her complaint) and there is “no confusion” regarding the intended party, the court
should allow her to amend her pleadings rather than dismiss the case. (Docket Entry No. 30 at 5).
Although Severino’s complaint is deficient because she does not properly allege either Dr. Jung’s
citizenship as an individual or Premiere Surgical Arts’ citizenship as a PLLC, the court agrees that
she should have an opportunity to cure this deficiency before dismissal.
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A second problem is that Severino has not pleaded facts showing that the amount in
controversy is above $75,000. In her response brief, she argues that her damages include her travel
costs; that the amount in controversy is determined by her “good-faith claim”; and that the
defendants have not shown to a legal certainty that she cannot recover more than $75,000. (Docket
Entry No. 30 at 5). However, the “legal certainty” test is “inapplicable . . . when the plaintiff has
alleged an indeterminate amount of damages.” St. Paul Reinsurance Co., Ltd., 134 F.3d at 1253;
see also Dorries v. Harrah’s Shreveport/Bossier City Holding Co., L.L.C., Civ. Action No. 05-
0844, 2006 WL 3095654, at *1–2 (W.D. La. Oct. 30, 2006) (noting that the legal certainty test did
not apply to a complaint that merely alleged over $75,000 in damages without more specifics).
Severino’s arguments about travel costs are also undermined by the complaint allegations and
attached exhibits, which explain that, even adding in travel and other related costs, the total refund
she seeks is just under $18,000. 	(Docket Entry No. 1 at 1). 	That means that the only way for
Severino to meet the amount in controversy is to show financial hardship and emotional distress
of more than $55,000 based on elective surgery3 that never happened.4
Severino has not met her burden of showing this damages amount either on the face of the
complaint or by a preponderance of the evidence; indeed, she has alleged no specific facts or
provided evidence about such damages at all. 	Her “bare allegations” of jurisdictional facts are
insufficient. See St. Paul Reinsurance Co., Ltd., 134 F.3d at 1253. And this court does not have
3 Severino’s exhibits show that the planned surgery was for liposuction. (Docket Entry No. 1-1 at 4; Docket
Entry No. 30 at 8).
4 The defendants argue that it is “hornbook law” that damages for emotional distress are not normally
available in breach of contract cases, (Docket Entry No. 29 at 6), but Severino also brought a claim for
fraudulent misrepresentation, and the defendants do not separately address why mental anguish damages
would not be available for this claim. “Texas has authorized the recovery of mental anguish damages for
fraud.” Lu v. Ng, No. 3:16-CV-2774, 2023 WL 3609164, at *4 (N.D. Tex. May 23, 2023). In any event,
even allowing for recovery for mental anguish damages, Severino has failed to meet the amount in
controversy requirement.
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to simply accept that that her claims for pain and suffering put the amount in controversy over the
jurisdictional threshold. See Leehans v. Am. Emp. Ins. Co., 273 F.2d 72, 72 (5th Cir. 1959). Courts
routinely find that mental anguish claims do not show an amount in controversy above $75,000
when, as here, other damages are limited, and even when the claims for mental anguish and other
pain and suffering are supported with some evidence. See, e.g., Johnson v. Summit Hotels Int’l,
Inc., Civ. Actoin No. 25-973, 2025 WL 3455514, at *2 (E.D. La. Dec. 2, 2025); Bates v. AT&T
Corp., Civ. Action No. 11-975, 2012 WL 1344016, at *3 (E.D. La. Apr. 18, 2021); Rogers v.
Lowe’s Home Centers, LLC, Civ. Action No. 15-5710, 2016 WL 4751792, at *5 (E.D. La. Sep.
12, 2016); Davis v. JK & T Wings, Inc., No. CIV.A. 11-501-BAJ, 2012 WL 278728, at *2–3 (M.D.
La. Jan. 6, 2012), report and recommendation adopted, 2012 WL 278685 (M.D. La. Jan. 31,
2012); Owens v. 3M Co., Inc., Civ. Action No. 5:17-cv-00346-AKK, 2017 WL 4340478, at *3
(N.D. Ala. Sep. 29, 2017). Although many of these cases take place in the removal context, the
Fifth Circuit has applied the same standard to cases filed directly in federal court. See St. Paul
Reinsurance Co., Ltd., 134 F.3d at 1253. It is not facially apparent that Severino’s case meets the
amount in controversy requirement, and the court’s review of her “summary judgment-type”
evidence does not demonstrate that she meets it. See, e.g., Dorries, 2006 WL 3095654, at *2–6.
Severino is ordered to file an amended complaint to attempt to address these deficiencies
by adequately alleging the citizenship of the parties and showing an amount in controversy above
$75,000. She must file this amended complaint, consistent with Rule 11 of the Federal Rules of
Civil Procedure, no later than May 15, 2026. 	Failure to meet the requirements of diversity
jurisdiction will result in dismissal of the action without prejudice for lack of subject matter
jurisdiction. 	See Stafford v. Mobil Oil Corp., 945 F.2d 803, 805 (5th Cir. 1991) (“Failure
adequately to allege the basis for diversity jurisdiction mandates dismissal.”).
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SIGNED on April 29, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
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