Yarbrough v. Wal-Mart Store, Inc. et al

Filing 15

MEMORANDUM OPINION AND ORDER that: (1) Yarbrough's 9 Motion to Remand; (2) this case is REMANDED to the Circuit Court of Chambers County, Alabama; and (3) the Clerk of the Court is DIRECTED to take all steps necessary to effect the remand. Signed by Honorable William Keith Watkins on 2/26/2010. (Attachments: # 1 Civil Appeals Checklist)(cb, ) Modified on 2/26/2010 to notate that a copy of the Memorandum Opinion and Order mailed to Circuit Court of Chambers County, AL(cb, ).

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION D O N A L D YARBROUGH, P la in tif f , v. W A L -M A R T STORES, INC., et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

C A S E NO. 3:09-CV-1136-WKW [WO]

M E M O R A N D U M OPINION AND ORDER T h is cause is before the court on Plaintiff Donald Yarbrough's ("Yarbrough") Motion to Remand. (Doc. # 9). Yarbrough filed his complaint in the Circuit Court of Chambers C o u n ty, Alabama on June 10, 2009, asserting six claims arising out of a slip-and-fall incident th a t occurred on March 11, 2009, at a Wal-Mart in Valley, Alabama. (Compl. (Doc. # 1, Ex. 1 ).) Defendant Wal-Mart Stores, Inc. ("Wal-Mart") removed this action to federal court on D e c e m b e r 16, 2009, on the basis of diversity jurisdiction, 28 U.S.C. § 1332. (Doc. # 1.) Yarbrough contends that Wal-Mart failed to timely remove this action under 28 U.S.C. § 1 4 4 6 , and seeks remand to the Circuit Court of Chambers County, Alabama. (Doc. # 9.) Wal-Mart opposes the motion to remand. (Doc. # 11.) U p o n careful consideration of counsel's arguments, the relevant law, and the record a s a whole, the court finds that the motion to remand is due to be granted.

I. STANDARD " [ F ]e d e ra l courts have a strict duty to exercise the jurisdiction that is conferred upon th e m by Congress." Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). However, " [ f ]e d e ra l courts are courts of limited jurisdiction." Burns v. Windsor Ins. Co., 31 F.3d 1092, 1 0 9 5 (11th Cir. 1994). Thus, with respect to cases removed to this court pursuant to 28 U .S .C . § 1441, the law of the Eleventh Circuit favors remand where federal jurisdiction is n o t absolutely clear. "[R]emoval statutes are construed narrowly; where plaintiff and d e f e n d a n t clash about jurisdiction, uncertainties are resolved in favor of remand." Burns, 31 F .3 d at 1095. W h e re the complaint alleges unspecified damages, as in this case, the removing party b e a r s the burden of establishing the jurisdictional amount by a preponderance of the e v id e n c e . Lowery v. Ala. Power Co., 483 F.3d 1184, 1209-10 (11th Cir. 2007). A removing d e f e n d a n t must file a notice of removal within thirty days after receiving the initial pleading o r "a copy of an amended pleading, motion, order or other paper from which it may first be a s c e rta in e d that the case is one which is or has become removable." 28 U.S.C. § 1446(b). I I. DISCUSSION H e re , the parties dispute two things: (1) whether the amount in controversy is a s c e rta in a b le from the subrogation documents sent to Defendants from Yarbrough's insurer, B lu e Cross Blue Shied of Alabama ("BCBS of Alabama"), and (2) whether Yarbrough's d e p o s itio n testimony can serve as the basis for jurisdiction in this case. Resolution of the

2

first question establishes that Wal-Mart failed to timely remove this action. This being d is p o s itiv e , the court does not address the second issue. On October 23, 2009, Yarbrough faxed a letter from BCBS of Alabama to the attorney f o r Defendants Wal-Mart, Richard Jason Broxton, and Tammy Hetrick (collectively " D e f e n d a n ts " ).1 (Doc. # 9, Ex. 2.) The facsimile included a cover letter, which stated, in re le v a n t part, as follows: RE: D o n a ld Yarbrough v. Wal-Mart

D e a r Ms. Wakefield,2 E n c lo s e d please find the subrogation documents from B lu e Cross Blue Shield of Alabama in reference to the above m a tte r. .... Sincerely yours, Lawrence T. King 3 ( D o c . # 9, Ex. 2, at 1.) Attached to the above cover letter was a letter from BCBS of A la b a m a , stating, in relevant part, as follows: Member: Donald Yarbrough D a te of Accident: March 11, 2009 B C B S Case Number: 200914910163 D e a r Mr. King, ....

1

Wal-Mart does not contest receiving this facsimile on this date. Ms. Wakefield is the attorney for Defendants. Lawrence T. King is the attorney for Yarbrough.

2

3

3

Attached is an itemization of our payments for the above m e m b e r and accident. To the best of our knowledge, we c u rre n t l y have a subrogation claim in the amount of those p a ym e n ts , totaling $77,491.94. This figure is subject to increase in the event we furnish additional benefits. . . . .... Sincerely, Jackie D. Ware ... Subrogation Department (D o c . # 9, Ex. 2, at 2.) Wal-Mart contends that it could not "clearly ascertain with certainty" from the d o c u m e n ts quoted above that Yarbrough's claim met the jurisdictional threshold. Specifically, Wal-Mart argues that "[t]he mere fact that the Plaintiff's counsel sent the D e f e n d a n t a letter from BlueCross BlueShield stating a `number,' unsupported by a summary o f service, an itemization of charges, or medical testimony of its reasonableness and n e c e s s ity is not sufficient to put the Defendant on notice." (Doc. # 11, at 3.) This argument la c k s merit. The subject line and the body of the cover letter make specific reference to this la w s u it. (Doc. # 9, Ex. 2, at 1.) Likewise, the letter from BCBS of Alabama lists Plaintiff D o n a ld Yarbrough's name and the date of the accident (March 11, 2009) in its subject line a n d states that the itemization of payments was "for the above member and accident." BCBS o f Alabama goes on to state that, to the best of its knowledge, the subrogation claim totals " 7 7 ,4 9 1 .9 4 " and that "[t]his figure is subject to increase." (Doc. # 9, Ex.2, at 2 (emphasis

4

added).) Defendants urge the court to apply the Fifth Circuit definition of "ascertain" and h o ld that upon receiving the "other paper" at issue, a defendant must be able to "`find out or le a rn with certainty' that the amount in controversy meets the jurisdictional threshold." (Doc. # 11, at 4 (quoting Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002).) Even under th is standard, however, the documents quoted above clearly constitute "other paper from w h ic h it may first be ascertained that the case is one which is or has become removable." 28 U .S .C . § 1446(b). Not only does the letter from BCBS of Alabama include an exact dollar f ig u re exceeding $75,000, but it, as well as the cover letter, mentions the plaintiff by name a n d specifically refers to the date of the accident. Wal-Mart contends that the above-quoted facsimile does not contain a sufficientlya s c e rta in a b le amount of damages because it does not summarize the medical services, ite m iz e the charges, or contain testimony as to the "reasonableness and necessity" of the c h a rg e s . (Doc. # 11, at 3.) However, Wal-Mart provides no case law to support this narrow in te rp re ta tio n of the phrase "other paper from which it may first be ascertained that the case is one which is or has become removable" under 28 U.S.C. § 1446(b). In fact, Wal-Mart c o n tra d ic ts itself by later arguing that Yarbrough's deposition testimony ­ in which he simply s ta te d that the damages in this case exceed $100,000 ­ created the basis for removal. Yarbrough's testimony did not contain a "summary" or "itemization" of the damages, nor did it contain any evidence that such an estimate was "reasonable." To argue that the amount in c o n tro v e rsy is clearly ascertainable from this deposition testimony (which provides no basis

5

for the number at all), yet not from a insurance company's letter (which provides an exact d o lla r figure in reference to a specific accident on a specific date), is unpersuasive, to say the le a s t. For the foregoing reasons, the court finds that the facsimile from Yarbrough to D e f e n d a n ts on October 23, 2009 satisfies the requirements of 28 U.S.C. § 1446(b)'s "other p a p e r ." Because Wal-Mart did not remove this action within thirty days of receiving this " o th e r paper," this action is due to be remanded. III. CONCLUSION A c c o rd in g ly, it is ORDERED that: (1 ) (2) Yarbrough's motion to remand (Doc. # 9) is GRANTED; this case is REMANDED to the Circuit Court of Chambers County, A la b a m a ; and (3 ) the Clerk of the Court is DIRECTED to take all steps necessary to effect the re m a n d . DONE this 26th day of February, 2010. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

6