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