Harmon v. Walmart Stores, Inc.

Filing 33

MEMORANDUM OPINION AND ORDER, as follows: 1) This case is remanded to the CC of Tallapoosa Co., AL, Alexander City Div; The Clerk is directed to take appropriate steps to effect the remand; 3) All motions are left for resolution by the CC of Tallapoosa Co., AL. Signed by Hon. Chief Judge Mark E. Fuller on 3/16/09. (Attachments: # 1 civil appeals checklist)(mailed cert copy/CC Tall. Co) (vma, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION S U S A N HARMON, an individual and as ex ec u trix of the estate of MARGIE N E L L JOHN DEES, P l a i n t if f , v. WAL-MART STORES, INC., D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) )

C A S E NO. 3:08-cv-309-MEF (W O )

M E M O R A N D U M OPINION AND ORDER I . Introduction P lain tiff in this case seeks to recover for the death of Margie Nell John Dees. In b rie f , Plaintiff claims Defendant Wal-Mart should provide that recovery because the d e c ed e n t's foot became tangled in a "Wal-Mart bag" in the parking lot of the Alexander C ity Wal-Mart, which triggered a series of unfortunate events that ended with her p re m a tu re death. Because this Court lacks subject matter jurisdiction, the case is due to b e remanded to the Circuit Court of Tallapoosa County, Alabama, Alexander City D iv is io n . II. Background P la in tif f filed this case in the Circuit Court of Tallapoosa County, Alabama, A le x a n d er City Division on February 25, 2008. (Doc. # 1-3.) Plaintiffs' complaint was

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s tyle d in four counts, one each for, respectively, negligence/wantonness, wrongful death, n e g lig e n t hiring and supervision, and the same claims as against two-dozen fictitious d e f en d a n ts . Defendant answered on February 12, 2008, denying all material allegations in the complaint (Doc. # 1-3), and filed a Motion to Dismiss urging dismissal of all claims o f the plaintiff excluding the Count for wrongful death (Doc. # 1-3) two days later. The C irc u it Court granted Defendant's Motion and dismissed with prejudice Counts One and T h re e of Plaintiff's complaint. (Doc. # 1-3.) Count Two, the remaining substantive co u n t, demands a judgment "in an amount in excess of Fifty Thousand Dollars ($ 5 0 ,0 0 0 .0 0 ), . . . plus interests and costs" for the alleged wrongful death of Plaintiff c a u se d by Defendant.1 Defendant then requested admissions from Plaintiff, to wit:

1 . That you do not claim in excess of $75,000.00 as total damages in this case. 2 . That you do not intend to claim over $75,000.00 as total damages in this case. 3 . That you will not seek over $75,000.00 in total damages in this case. 4 . That you waive any about of damages ever entered in this case in excess of $ 7 5 ,0 0 0 .0 0 . 5 . That you will not accept any award of damages over $75,000.00 in this case. 6 . That you agree that the above-stated limitations on your claim for damages will b e binding on you, your heirs, representatives, and assigns with regard to all claims m a d e or ever made in this lawsuit against Wal-Mart Stores East, L.P. or any of its e m p l o ye e s .

Count IV is a non-substantive count common in the courts of this State attempting to incorporate claims against "fictitious" (i.e. unknown to Plaintiff at the time of the complaint) defendants. This Count cannot provide a basis for jurisdiction. -2-

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P la in tif f s denied each of these six requests for admission. (Doc. # 1-2.) On April 23, 2 0 0 8 , Defendants removed this case pursuant to 28 U.S.C. §§ 1441, 1446. (Doc. # 1.) The Notice claims that "Jurisdiction is based on complete diversity of citizenship and the am o u n t in controversy exceeds the sum of Seventy-Five Thousand Dollars ($75,000), e x c lu s iv e of interest and costs in compliance with 28 U.S.C. § 1332." Plaintiff never f ile d a Motion to Remand. The case carried on, and Defendant ultimately filed a Motion for Summary Ju d g m e n t (Doc. # 11) and a Motion to Strike Affidavit of Carl Johns (Doc. # 26). Both M o tio n s are now under submission and ripe for disposition, though, for reasons set forth b e lo w , the Court will not reach their merits. III. Discussion Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. C o . of Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th C ir.1 9 9 4 ); Wymbs v. Republican State Executive Comm., 719 F.2d 1072, 1076 (11th C ir.1 9 8 3 ). As such, federal courts only have the power to hear cases that they are a u th o riz e d to hear by the Constitution and the Congress of the United States. Kokkonen, 5 1 1 U.S. at 377. Article III of the Constitution empowers the Federal Courts to hear suits b etw ee n citizens of different states, and 28 U.S.C. § 1332 provides the necessary statutory a u th o riz a tio n for that jurisdiction. That familiar statute provides that "The district courts s h a ll have original jurisdiction of all civil actions where the matter in controversy exceeds

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th e sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of d i f f e re n t states." To ensure federal courts do not hear cases ultra vires, Federal Rule of C iv il Procedure 12(h)(3) requires that "If the court determines at any time that it lacks su b jec t-m a tter jurisdiction, the court must dismiss the action." If federal jurisdiction is f o u n d e d on the removal statute and it at any time appears that the district court lacks su b jec t matter jurisdiction, the court shall remand the case. 28 U.S.C. § 1447(c); see also S p iv e y v. Fred's Inc., 554 F. Supp. 2d 1271, 1274 (M.D. Ala. 2008 ) (Albritton, J.). Even w h e n there are pending dispositive motions, if the court determines that it lacks subject m a tte r jurisdiction it should not rule on the motions, but should remand the case, sua sp o n te if necessary, pursuant to Rule 12(h)(3). See National Parks Conservation Ass'n v. N o r to n , 324 F.3d 1229, 1240 (11th Cir. 2003); see also Fitzgerald v. Seaboard Sys. R.R., In c ., 760 F.2d 1249, 1251 (11th Cir. 1985) ("A court lacking jurisdiction cannot render ju d g m e n t but must dismiss the cause at any stage of the proceedings in which it becomes a p p a re n t that jurisdiction is lacking . . . . If the parties do not raise the question of lack of jurisd iction , it is the duty of the federal court to determine the matter sua sponte."). Such is the case here. A removing defendant bears the jurisdictional burden of proof, and when Plaintiff s e e k s unspecified damages, that burden is by a preponderance of the evidence. Lowery v. A la . Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007) (citing Miedema v. Maytag Corp., 4 5 0 F.3d 1322, 1328 (11th Cir. 2006)). As this Court recently stated in describing the

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E le v e n th Circuit's decision in Lowery v. Alabama Power Company, The Court cautioned, however, that "[i]f the jurisdictional amount is either sta ted clearly on the face of the documents before the court, or readily d e d u c i b le from them, then the court has jurisdiction. If not, the court must re m a n d . Under this approach, jurisdiction is either evident from the removing d o c u m e n ts or remand is appropriate." Neither the defendant nor the court may s p e c u la te about the amount in controversy. (stating that "the existence of ju ris d ic tio n " may not be "divined by looking to the stars"). . . . the nature of a claim in of itself is not sufficient to conclusively establish the amount in c o n t r o v e r s y.

T h ib o d e a u x v. Paccar, Inc., 592 F. Supp. 2d 1377, 1380 (M.D. Ala. 2009) (Fuller, C.J.) ( in t e rn a l citations omitted). The documents received from the Defendant must " u n a m b ig u o u s ly" and "clearly" establish federal jurisdiction. Lowrey, 483 F.3d at 1112 n .6 3 . Defendant has failed to meet its burden and jurisdiction over this action would re q u ire unbridled speculation on the part of the Court. As the Eleventh Circuit has in stru c ted , jurisdiction must be evident from the removing documents, or remand is a p p ro p ria te . It is plain from the face of the Complaint that Plaintiff seeks in excess of $ 5 0 ,0 0 0 to compensate for the alleged wrongful death of the decedent. This fact alone is in s u f f ic ie n t to satisfy the $75,000 amount in controversy requirement. See Lowrey, 483 F .3 d at 1208-12; 28 U.S.C. § 1332. A Plaintiff seeking specified damages that are not e n tirely above the jurisdictional amount is no different than a plaintiff seeking purely u n s p e c if ie d damages for purposes of proving the jurisdictional amount. Cf. Lowery, 483 F .3 d at 1208 (explaining that a Defendant bears the burden of proving the jurisdictional -5-

a m o u n t when the Plaintiff seeks unspecified damages). Therefore, Defendant cannot use th e Complaint alone to establish the jurisdictional amount. Defendant recognized this in f irm ity and sought to cure it with so-called "other paper . . . received from the p l a in t i f f ." A removing defendant can predicate jurisdiction on either the initial pleading, or "a n amended pleading, motion, order or other paper from which it may first be a sc e rta in e d that the case is one which is or has become removable." 28 U.S.C. § 1446(b) (e m p h a s is added). When a defendant bases removal on a document other than the initial p le a d in g , three specific conditions must be satisfied. There must be "(1) `an amended p le a d in g , motion, order or other paper,' which (2) the defendant must have received from th e plaintiff (or from the court, if the document is an order), and from which (3) the d e f en d a n t can `first ascertain' that federal jurisdiction exists." Lowery, 483 F.3d at 1215 n . 63 (quoting 28 U.S.C. § 1446(b)). "Courts have not articulated a single test for id e n tif yin g `other paper,' but numerous types of documents have been held to qualify." Id . at 1213 n. 62. Those documents include responses to requests for admissions, s e ttle m e n t offers, interrogatory responses, deposition testimony, demand letters, and e m a ils estimating damages. Id. Even when a defendant presents evidence received from a plaintiff, the court may still question whether it sufficiently establishes the amount in c o n tro v e rs y. See Lowery, 493 F.3d at 1220-21. The "other paper" submitted in this case is a series of six requests for admission and coordinating answers (all denials) proffered

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b y Defendant with the Notice of Removal. The other paper proffered by Defendant is insufficient to establish jurisdiction. Defendant attempted to establish facts "received from the plaintiff" sufficient to support ju r is d ic tio n by requesting admissions to six questions about the amount in controversy f ra m e d in the negative, such as "you do not claim in excess of $75,000.00 as total d a m a g e s in this case" and "you will not seek over $75,000.00 as total damages in this ca se." Plaintiff responded to each of these inquiries with a simple "Deny." Defendant's a p p a re n t hope is that the negativity of the denial would, as a matter of logic, cancel the n e g a tiv e s in the questions, yielding an admission of the positive opposite of the negative p ro p o u n d e d statements. (i.e., Defendant argues that if Plaintiff denies that she does not c la im in excess of $75,000, she must claim in excess of $75,000 because one or the other m u s t be true--the choice is binary). Or, stated generically, Defendant sought to prove the p o s itiv e by eliciting a denial of the negative. D e f en d a n t cannot create an end-run around the jurisdictional requirements by f o rc in g a denial of a negative and then claim the positive is admitted and conclusively d e ter m in e d . It is true that in formal logic, and even in everyday language, that what is m a y be inferred from a statement about what is not. Or, that denial is the opposite of af firm atio n . Or, in a universe where only A and B are possible, but one of either A or B m u s t be, one can construct a sound disjunctive syllogism like this one:

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E ith e r A or B.2 N o t A, Therefore B.3 In the context of a request for admission to a plaintiff from a defendant, however, the e f f e c t of a denial is not the same. On the one hand, when a party admits to a fact in re sp o n s e to a request for admission, that fact is conclusively established for purposes of th e litigation. Fed. R. Civ. P. 36(b) ("A matter admitted under this rule is conclusively e sta b lis h e d unless the court, on motion, permits the admission to be withdrawn or a m e n d e d ."); see U.S. v. 2204 Barbara Lane, 960 F.2d 126, 129 (11th Cir. 1992). On the o th e r, the effect of a denial is not to admit the opposite of the proposition offered for a d m is s io n , but rather is simply to establish that the matter is in dispute. Fed. R. Civ. P. 36 a d v is o ry committee notes, 1970 Amendment (describing the purpose of requests for a d m iss io n as "to ascertain whether the answering party is prepared to admit or regards th e matter as presenting a genuine issue for trial") (emphasis added); see also O'Meara-

This and the disjunctions that follow are all exclusive, which means that only one of the disjuncts is true.
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One could particularize this syllogism for Defendant's argument in the following way: Either > $75,000 is not in controversy (A) or > $75,000 is in controversy (B). It is not the case that > $75,000 is not in controversy (Not A), Therefore > $75,000 is in controversy (B). -8-

S tea rlin g v. Mitchell, 299 F.2d 401, 404 (5th Cir. 1962) 4 (noting that the purpose of this ru le is to provide for admission of matters about which there is no dispute); Gutierrez v. M a s s . Bay Transp. Auth., 772 N.E.2d 552, 567 (Mass. 2002) ("A denial of a request for a d m is s io n is not a statement of fact; it simply indicates that the responding party is not w illin g to concede the issue and, as a result, the requesting party must prove the fact at tria l." ); Larry Rogers, Jr., Litigating Tort Cases § 17:19 (2008) ("Contrary to an a d m is s io n , a denial of a request for admission requires that the proponent of the fact intro d u ce evidence at the trial of the cause to establish the fact."). Hence, Plaintiff's d e n ia l of the six questions propounded by Defendant serves not to establish that an a m o u n t in excess of $75,000 is in dispute, but rather that Plaintiff is not willing to c o n c e d e the issue and that an amount in excess of $75,000 is in dispute is itself in d is p u te .5 Refusal to concede is not a statement of fact and cannot support jurisdiction.

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981. In the terms of the syllogism in footnote 3, the effect of "deny" in response to "> $75,000 is not in controversy (A)" is not "It is not the case that > $75,000 is not in controversy (Not A)." Rather, it is "There is a dispute about whether > $75,000 is not in controversy." The resulting syllogism is a non sequitur: Either > $75,000 is not in controversy (A) or > $75,000 is in controversy (B). It either is (A) or is not (Not A) the case that > $75,000 is not in controversy (i.e. there is a dispute about whether > $75,000 is not in controversy), Therefore > $75,000 is in controversy (B). -95

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T h e re f o re , while this paper is a proper item for consideration and was received from P lain tiff , its contents do not provide the clear and unambiguous statement required to e sta b lish subject matter jurisdiction over this action. Defendant has therefore not met its b u rd e n of proving facts by a preponderance of the evidence that establish jurisdiction. I V . Conclusion F o r the reasons discussed above, it is hereby ORDERED as follows: (1 ) This case is REMANDED to the Circuit Court of Tallapoosa County, Alabama, A le x a n d er City Division; (2 ) The Clerk is DIRECTED to take appropriate steps to effect the remand; (3 ) All motions are left for resolution by the Circuit Court of Tallapoosa County A la b a m a . Done this the 16 th day of March, 2009.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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