Vega v. Ross Stores Inc.

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

VICENTA VEGA § § v. § NO. 4:24-CV-00733-SDJ-BD § ROSS STORES INC., et al. §

MEMORANDUM OPINION AND ORDER Plaintiff Vicenta Vega moved for a determination of the applicability of Texas Civil Practice and Remedies Code § 18.001. Dkt. 20. The defendants did not respond. The motion will be granted. The Fifth Circuit has never directly addressed the applicability of § 18.001 in diversity cases that arise in Texas. But this court routinely applies § 18.001 to permit an affidavit to prove, in the absence of a controverting counter-affidavit, that the amount charged for a service was reasonable or that the service was necessary. See Delarosa v. Great Neck Saw Manufacturers, Inc., 565 F. Supp. 3d 832, 836 (E.D. Tex. 2021) (allowing affidavits under § 18.001 but declining to apply the statute’s timing provisions); Barnes v. Burlington Coat Factory of Tex., Inc., No. 4:21-CV- 00008-SDJ-CAN, 2021 WL 12310948 at *3 (E.D. Tex. July 23, 2021) (collecting cases); Henson v. Deepwell Ener� Svcs., LLC, No. 1:20-CV-00141-MJT, 2021 WL 3388036, at *6–8 (E.D. Tex. June 14, 2021); Grant v. CRST Expedited, Inc., No. 1:18-CV-00433-MAC, 2021 WL 2101741, at *12 (E.D. Tex. Apr. 7, 2021) (applying § 18.001 in the motion-in-limine context); Vansill v. Dollar Tree Stores, Inc., 520 F. Supp. 3d 847, 854 (E.D. Tex. 2021) (allowing affidavits under § 18.001 but declining to apply the statute’s timing provisions); Grant v. CRST Expedited, Inc., No. 1:18-CV- 00433-MAC, 2021 WL 1151560 at *2–4 (E.D. Tex. Jan. 28, 2021) (applying § 18.001 in the motion- to-strike context); Peals v. QuikTrip Corp., 511 F. Supp. 3d 770, 782 (E.D. Tex. 2021) (allowing affidavits under § 18.001 but declining to apply the statute’s timing provisions); Reynolds v. United Fin. Cas. Co., No. 9:19-CV-00154-ZJH, 2020 WL 8269667 at *1–3 (E.D. Tex. Dec. 14, 2020); Bagley v. Dollar Tree Stores, Inc., No. 1:18-CV-00580-MAC, 2019 WL 6492585 at *5–7 (E.D. Tex. Dec. 2, 2019). That is because state law governs the questions of what damages are available and how the plaintiff must prove them. Barnes, 2021 WL 12310948 at *2. The court does not apply the timing and notice requirements of § 18.001 because those provisions are purely procedural. See Bagley, 2019 WL 6492585 at *7. It is ORDERED that the motion, Dkt. 20, is GRANTED. The deadlines for serving affidavits and counter-affidavits will be set by the amended scheduling order, which will be entered separately.