Taylor et al v. Food Giant Supermarkets, Inc., et al

Filing 17

ORDER denying 9 Motion to Remand to State Court. Signed by Chief Judge William H. Steele on 8/16/2012. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WINOMA TAYLOR, et al.,

)
)
Plaintiffs,
)
)
v.
) CIVIL ACTION 12-0320-WS-C
)
PIGGLY WIGGLY OF BAY MINETTE, )
ALABAMA, et al.,
)
)
Defendants.
)
ORDER
This matter is before the Court on the plaintiffs’ motion to remand. (Doc. 9). One
defendant has filed a response, (Doc. 11), the plaintiffs declined to file a reply, (Doc. 10),
and the motion is ripe for resolution.
BACKGROUND
The amended complaint alleges that plaintiff Winoma Taylor was slipped, fell and
was injured at a Piggly Wiggly grocery store in Bay Minette, Alabama in 2010. The
amended complaint names as defendants “Piggly Wiggly of Bay Minette, Alabama”
(“Piggly Wiggly”) and Food Giant Supermarkets, Inc. (“Food Giant”).1 Ms. Taylor
brings claims of negligence and wantonness, and co-plaintiff Odis Taylor brings a claim
for loss of consortium. The complaint’s ad damnum clause seeks compensatory damages
for medical expenses, mental anguish and pain and suffering, as well as an award of

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The amended complaint also lists several fictitious defendants but, “[f]or purposes of
removal under this chapter, the citizenship of defendants sued under fictitious names shall be
disregarded.” 28 U.S.C. § 1441(a).

punitive damages, but specifies no dollar amount demanded. The amended complaint
establishes that the plaintiffs are citizens of Alabama. (Doc. 1, Exhibit B).
DISCUSSION
Food Giant timely removed on the basis of diversity of citizenship. The plaintiffs
argue that Food Giant has not met its burden either of showing that the amount in
controversy exceeds $75,000 or that its principal place of business is not in Alabama.
The Court discusses these arguments in turn.
A. Amount in Controversy.
“[W]e hold that where a plaintiff has made an unspecified demand for damages in
state court, a removing defendant must prove by a preponderance of the evidence that the
amount in controversy more likely than not exceeds the $[75],000 jurisdictional
requirement.” Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1357 (11th Cir. 1996),
overruled on other grounds, Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).
Because the plaintiff has made an unspecified demand for damages, the Tapscott standard
applies here.
“When the complaint does not claim a specific amount of damages, removal from
state court is proper if it is facially apparent from the complaint that the amount in
controversy exceeds the jurisdictional requirement. If the jurisdictional amount is not
facially apparent from the complaint, the court should look to the notice of removal and
may require evidence relevant to the amount in controversy at the time the case was
removed.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001).
The amount in controversy is not apparent from the face of the amended
complaint, because there is no way to determine from it whether Ms. Taylor has sustained

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injury so severe as to make it more likely than not that over $75,000 is in controversy.2
Food Giant does not argue otherwise; instead, it relies on the plaintiff’s pre-suit
settlement demand. A defendant is entitled to supplement the complaint with evidence in
its possession. E.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 755 (11th Cir.
2010).
“While [a] settlement offer, by itself, may not be determinative, it counts for
something.” Burns v. Windsor Insurance Co., 31 F.3d 1092, 1097 (11th Cir. 1994). What
it counts for, however, depends on the circumstances. Settlement offers commonly
reflect puffing and posturing, and such a settlement offer is entitled to little weight in
measuring the preponderance of the evidence. On the other hand, settlement offers that
provide “specific information ... to support [the plaintiff’s] claim for damages” suggest
the plaintiff is “offering a reasonable assessment of the value of [his] claim” and are
entitled to more weight. Golden Apple Management Co. v. Geac Computers, Inc., 990 F.
Supp. 1364, 1368 (M.D. Ala. 1998). The Court has adopted this as the correct analysis.
Jackson v. Select Portfolio Servicing, Inc., 651 F. Supp. 2d 1279, 1281 (S.D. Ala. 2009).
Prior to filing suit, the plaintiff sent a letter demanding $225,000. (Doc. 1, Exhibit
C). Standing alone, that figure would probably be considered mere puffery, but the letter
expressly represents that “Ms. Taylor’s medical expenses are approximately Seventy
Thousand Dollars ($70,000).” (Id. at 1). This is not puffery but specific information
about hard, past damages. Absent any apparent or articulated reason for discounting this
explicit representation of concrete facts – and the plaintiffs offer none – it is to be taken
at face value.

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Cf. Williams, 269 F.3d at 1318, 1320 (allegations that the plaintiff tripped over a curb
and suffered permanent physical and mental injuries, that she incurred substantial medical
expenses, that she suffered lost wages, that she experienced a diminished earning capacity, and
that she would continue to suffer these damages in the future, along with a demand for both
compensatory and punitive damages, did not render it facially apparent that the amount in
controversy exceeded $75,000).

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The balance of the demand letter makes clear that Ms. Taylor’s other
compensatory damages cumulatively exceed the modest $5,000 needed to bring the
amount in controversy above the jurisdictional threshold. First, it states that her medical
expenses will continue. Second, it states that, due to the Piggly Wiggly incident, Ms.
Taylor “can no longer drive, requires the use of a walker, and remains in constant pain.”
Moreover, she “is unable to maintain her home, climb stairs, walk freely in her yard, or
do many standard life’s functions.” (Doc. 1, Exhibit C at 1). It is unnecessary to
quantify these damages in order to draw the conclusion that they place more than $5,000
in controversy.3
The plaintiffs insist that their demand letter “does not prove to a legal certainty
that the amount-in-controversy in the Taylors’ claim is greater than the statutory

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Food Giant would add into the mix co-plaintiff Odis Taylor’s claim for loss of
consortium. (Doc. 1 at 11). However, it has not accounted for the rule that “we do not aggregate
the value of multiple plaintiffs’ claims to satisfy the amount in controversy requirement simply
because they are joined in a single lawsuit.” Leonard v. Enterprise Rent A Car, 279 F.3d 967,
974 (11th Cir. 2002). While an exception exists when the plaintiffs “unite to enforce a single title
or right, in which they have a common and undivided interest,” Zahn v. International Paper Co.,
414 U.S. 291, 295 (1973) (internal quotes omitted), such an interest “exist[s] only when the
defendant owes an obligation to the group of plaintiffs as a group and not to the individuals
severally.” Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1262 (11th Cir. 2000). It is
doubtful that a claim for consortium meets this high standard. See, e.g, Menard v. Hewlett
Packard Co., 2012 WL 2938010 at *3 (E.D. Pa. 2012); Cortez v. Tents N Events, Inc., 2009 WL
5174143 at *2 n.2 (E.D. La. 2009); Martinez v. J.C. Penney Corp., 2008 WL 2225663 at *3-4
(S.D. Fla. 2008); Runk v. Wal-Mart Stores, Inc., 2006 WL 3308670 at *1 (M.D. Pa. 2006);
Foster v. Home Depot, Inc., 2006 WL 470596 at *1 n.2 (E.D. Pa. 2006); Clark v. Buske Lines,
Inc., 2006 WL 51195 at *2 (E.D. Mo. 2006); Poplar v. KKI, LLC, 2005 WL 2739158 at *2
(W.D. Ky. 2005).
Regardless of whether Mr. Taylor’s consortium claim can properly be aggregated with
his wife’s claim for personal injury, subject-matter jurisdiction exists as to her claim, and the
Court may exercise supplemental jurisdiction over his claim. Exxon Mobile Corp. v. Allapattah
Services, Inc., 545 U.S. 546, 558-59 (2005).

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minimum.” (Doc. 9 at 14). Perhaps not, but the “legal certainty” test does not apply
here, since the complaint does not specifically demand a figure less than $75,000. Using
the correct standard of preponderance of the evidence, Food Giant has more than met its
burden with respect to establishing the amount in controversy.4
B. Fraudulent Joinder.
As noted, the complaint names Piggly Wiggly as a defendant. Food Giant has
produced unchallenged evidence from the Alabama Secretary of State’s website that
Piggly Wiggly, though it was once an Alabama corporate citizen, was legally dissolved in
1982. (Doc. 1, Exhibit E). The plaintiffs state that they did not intend, by naming Piggly
Wiggly, to “project a resurrection of a corporation dissolved some thirty years ago.”
Instead, they say, they named Piggly Wiggly because neither Food Giant nor the Bay
Minette store “present[s] any public representation of entity structure or relationship in
the day to day public interaction by which they seek to attract customers and do business
with the public” and that Piggly Wiggly “is simply the manner by which the grocery store
is identified on various websites and other information available to the Taylors at the time
of filing the Complaint.” (Doc. 9 at 3-4). In other words, they sued what they admit is a
“non-existent entity,” (id. at 3 n.3), out of ignorance.
“Fraudulent joinder is a judicially created doctrine that provides an exception to
the requirement of complete diversity.” Triggs v. John Crump Toyota, Inc., 154 F.3d
1284, 1287 (11th Cir. 1998). As applicable here, the removing defendant must show “by
clear and convincing evidence” that “there is no possibility the plaintiff can establish a
cause of action against the resident defendant.” Henderson v. Washington National

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The plaintiffs suggest that, even if the requisite amount is in controversy, “it alone is not
sufficient for removal since the state courts are equally capable of dealing with injuries involving
damages with amounts in controversy in excess of statutory minimums for federal courts.” (Doc.
9 at 4). Certainly the state courts are competent to deal with the plaintiffs’ lawsuit, but that is
utterly irrelevant to the availability of removal.

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Insurance Co., 454 F.3d 1278, 1281 (11th Cir. 2006). “If there is even a possibility that a
state court would find that the complaint states a cause of action against any one of the
resident defendants, the federal court must find that the joinder was proper and remand
the case to the state court.” Stillwell v. Allstate Insurance Co., 663 F.3d 1329, 1333 (11th
Cir. 2011) (internal quotes omitted). “In making its determination, the district court must
evaluate factual allegations in the light most favorable to the plaintiff and resolve any
uncertainties about the applicable law in the plaintiff’s favor.” Pacheco de Perez v.
AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998).
There is plainly no possibility the plaintiffs can establish a cause of action against
a defendant that ceased to exist decades before the conduct made the subject of the suit.
Whether or not evaluated under the rubric of fraudulent joinder, the naming of a nonexistent entity cannot destroy diversity. Compare Davis v. OneBeacon Group, 721 F.
Supp. 2d 329, 337 (D.N.J. 2010) (“There is no need to address the doctrine of fraudulent
joinder because the Court accepts PA General’s representations that OneBeacon is a nonexistent entity.”) with Bernsten v. Balli Steel, PLC, 2008 WL 862470 at *9 (E.D. Pa.
2008) (“[T]he Court already has found that Plaintiffs fraudulently joined the non-existent
ASI-Balli ….”).
The plaintiffs do not expressly argue that Piggly Wiggly’s presence defeats
complete diversity, but they appear to suggest that, even though it is not an existing
corporate entity, it somehow remains an unincorporated but independently suable
“subsidiary” of Food Giant. (Doc. 9 at 3). They offer neither argument nor authority to
support their implausible assertion, and Food Giant’s unrebutted evidence unequivocally
negates any such contention. (Doc. 11 at 2). See Legg v. Wyeth, 428 F.3d 1317, 1323
(11th Cir. 2005) (while, in resolving a fraudulent joinder issue, disputed questions of fact
must be resolved in favor of the plaintiff, there must first be a disputed question of fact).
C. Principal Place of Business.
“We conclude that ‘principal place of business’ is best read as referring to the
place where a corporation’s officers direct, control, and coordinate the corporation’s
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activities.” Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192 (2010). This place is
commonly called the corporation’s “nerve center,” and “in practice it should normally be
the place where the corporation maintains its headquarters – provided that the
headquarters is the actual center of direction, control, and coordination ….” Id.
The plaintiffs concede that Food Giant is incorporated in Missouri. (Doc. 9 at 5).
Even though their amended complaint alleges that its “principal business address” is in
Sikeston, Missouri, (Doc. 1, Exhibit B at 2), they now argue that Food Giant has not
shown that its principal place of business is there, based on evidence that its vicepresident resides and works in Geneva, Alabama. (Doc. 9 at 5-6, 9).5 The plaintiffs’’
own evidence, however, establishes that Food Giant’s president and secretary reside in
Missouri. (Doc. 9, Exhibit 7). The vice-president’s affidavit, moreover, states that, while
his office is in Alabama, he is directed from Sikeston and that “[a]ll corporate control and
coordination of Food Giant’s business activities are directed from the Food Giant
headquarters in Sikeston, Missouri.” (Doc. 11, Exhibit C). This affidavit, unchallenged
by the plaintiffs, renders insignificant the vice-president’s location in Alabama and
effectively establishes Missouri as Food Giant’s principal place of business.
The plaintiffs also rely on hearsay statements that Food Giant is based in Miami
and that it has been purchased by a Kentucky concern. (Doc. 9 at 7 & Exhibits 11-13).
Assuming without deciding that the Court may properly consider these materials, they do
not assist the plaintiff. At the very best, they might suggest that Food Giant’s nerve
center is in Florida or Kentucky; they do not in the slightest suggest that its nerve center
is in Alabama.
The plaintiffs insist that a principal place of business exists only where “all the
business decisions of the corporation are made.” (Doc. 9 at 5 (emphasis in original)).
This cannot possibly be correct in light of Friend, which recognized that, “in this era of
5

The plaintiffs claim that Food Giant’s engineering department, buyer and ad coordinator
also are in Alabama, (Doc. 9 at 9), but they offer no evidence to support their contention. Nor,
for reasons set forth in text, would it matter if they had.

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telecommuting, some corporations may divide their command and coordinating functions
among officers who work at several different locations,” yet the nerve center test still
“points courts in a single direction, towards the center of overall direction, control, and
coordination.” 130 S. Ct. at 1194. Even could the plaintiffs’ implausible suggestion be
credited, and even had they produced evidence that some of the relevant decision-making
is made not in Missouri but in Alabama, under the plaintiffs’ proposed test this state of
affairs would not mean that Food Giant’s principal place of business is in Alabama but
would mean that the corporation has no principal place of business, including in
Alabama.6
The plaintiffs concede that Food Giant’s burden is to show its principal place of
business by a preponderance of the evidence. (Doc. 9 at 10). The evidence discussed
above establishes by a preponderance of the evidence that Food Giant’s principal place of
business is in Missouri. More critically, it establishes that its principal place of business
is not in Alabama.
CONCLUSION
For the reasons stated above, the plaintiff’s motion to remand is denied.
DONE and ORDERED this 16th day of August, 2012.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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To the uncertain extent the plaintiffs intend to suggest that a corporation may have more
than one nerve center, they are wrong. “A corporation’s ‘nerve center,’ usually its main
headquarters, is a single place.” Friend, 130 S. Ct. at 1193.

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