Miller v. Wal-Mart Stores East, LP et al

Filing 22

ORDER granting 10 Motion to Remand to Circuit Court of Clarke County. Signed by District Judge William H. Steele on 11/16/2017. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JEANETTE MILLER,
Plaintiff,
v.
WAL-MART STORES EAST, LP,
et al.,
Defendants.

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) CIVIL ACTION 17-0344-WS-N
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ORDER
This matter is before the Court on the plaintiff’s motion to remand. (Doc.
10). The parties have filed briefs and evidentiary materials in support of their
respective positions, (Docs. 10, 12, 13, 15), and the motion is ripe for resolution.
After careful consideration, the Court concludes the motion is due to be granted.
BACKGROUND
The plaintiff filed suit against the original defendant (“Wal-Mart”) and
various fictitious defendants on August 11, 2015. The complaint alleged a single
claim of negligence based on the plaintiff’s April 2014 slip-and-fall at Wal-Mart’s
establishment. The complaint identified the plaintiff’s damages as injuries to her
elbow, knee and back, medical expenses, pain and suffering, mental anguish,
permanent injury and impaired ability to earn a living. The ad damnum clause
demanded damages “less than the sum or value of $73,000.” (Doc. 1-1 at 2-4). In
September 2015, the plaintiff responded to Wal-Mart’s requests for admission.
Therein, the plaintiff admitted that the most she was seeking to recover was
$73,000, that there was no evidence (and would be no evidence) to support an
award over $73,000, and that the proper measure of damages did not exceed

$73,000. (Doc. 1-4 at 4-5). Based on the ad damnum clause and the plaintiff’s
admissions, Wal-Mart did not seek to remove the action.1
The plaintiff also responded to Wal-Mart’s interrogatories and requests for
production in September 2015. The plaintiff produced 114 pages of medical bills
and records. (Doc. 10-3 at 17-130). In response to interrogatories seeking
information regarding the damages claimed and an itemization of medical
expenses as to which she intended to request damages, the plaintiff referred WalMart to the produced medical bills and records. (Id. at 7, 8). Those bills and
records did not on their face reflect damages in excess of $75,000.
Medical treatment and bills that the plaintiff attributes to the April 2014
incident continued to mount after her initial discovery responses, including a
second surgery in March 2016. In April 2016, the plaintiff served her first
supplemental responses to Wal-Mart’s interrogatories and requests for production.
(Doc. 10-4). Attached were additional medical bills and records. (Id. at 22-42).
The plaintiff also amended her answer to the interrogatory asking for “[a]n
itemization of the damages claimed.” She stated that she “will claim all damages
to which she is entitled to under the laws of the State of Alabama. These damages
will includ[e] but not be limited to the following medical bills.” The plaintiff then
listed four physicians, two hospitals and a physical therapy center, with a dollar
amount by each. The plaintiff then stated the “[t]otal at present time” as the sum
of these seven figures: $101,533.04. (Id. at 9). Wal-Mart did not remove the
action and took no steps to clarify the inconsistency between this response and the
plaintiff’s earlier admissions and ad damnum clause.
1

Wal-Mart asserts, but has not actually demonstrated, that it not a citizen of
Alabama. Wal-Mart, a limited partnership, traces its lineage through several layers of
unincorporated entities before concluding that the “parent company” of the last of these
limited liability companies is a corporation. Wal-Mart has neither identified the members
of this most remote limited liability company nor alleged the state or states of
incorporation of the parent corporation. (Doc. 1 at 2-3). Because remand is required on
other grounds, the Court need not consider the consequences of Wal-Mart’s inadequate
demonstration of its citizenship.

2

The complaint identified the fictitious defendants as the entities “which
owned and/or were responsible for maintenance of the premises where Plaintiff
fell.” (Doc. 1-1 at 2). In June 2016, the plaintiff learned through discovery that
National Flex, LLC (“Flex”) answered this description. On August 23, 2016 (one
year and twelve days after suit was filed), the plaintiff filed an amended complaint
naming Flex as a second defendant. The amended complaint also added a cause of
action for wantonness and replaced the previous demand for less than $73,000
with an indeterminate demand for an amount, above the state court jurisdictional
threshold, to be determined by the jury. (Doc. 1-2 at 77-81). The parties agree
that Flex, like the plaintiff, is a citizen of Alabama.
In July 2017, the plaintiff served amended responses to Wal-Mart’s
requests for admission, changing all her admissions to denials. (Doc. 10-5). WalMart removed this action, with Flex’s consent, approximately two weeks after
being served with the plaintiff’s amended responses.
DISCUSSION
The plaintiff offers three grounds for remand: (1) the removal is untimely,
because it was accomplished more than one year after suit was filed; (2) the
amount in controversy does not exceed the jurisdictional threshold, because that
determination is made as of the lawsuit’s filing in August 2015; and (3) the parties
are not completely diverse, because the plaintiff and Flex are both citizens of
Alabama. As the Court finds the plaintiff’s first argument dispositive, it does not
address the others.2
In general, removal based on diversity must occur within one year after the
action was commenced. 28 U.S.C. § 1446(c)(1). Wal-Mart relies on the statutory
exception to this rule: removal after one year is untimely “unless the district court
2

Although Wal-Mart and Flex both filed briefs in opposition to the plaintiff’s
motion to remand, the Court focuses on Wal-Mart’s brief, as Flex’s brief is a truncated
version of Wal-Mart’s brief except with respect to fraudulent joinder, an issue the Court
does not reach.
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finds that the plaintiff has acted in bad faith in order to prevent a defendant from
removing the action.” Id. Moreover, if “the district court finds that the plaintiff
deliberately failed to disclose the actual amount in controversy in order to prevent
removal, that finding shall be deemed bad faith under paragraph (1).” Id. §
1446(c)(3)(B). Wal-Mart does not dispute that it bears the burden of
demonstrating the plaintiff’s bad faith.3
As noted, this action was commenced in August 2015. As also noted, the
plaintiff explicitly stated in discovery responses served in April 2016 that she
“claim[s]” over $100,000 in damages. Wal-Mart insists the plaintiff thereby
“failed to inform Wal-Mart of her intent to seek such damages above $73,000,”
(Doc. 12 at 15), but the suggestion is patently untenable; one cannot “claim”
damages without intending to seek them.
Wal-Mart next asserts that, even though the plaintiff expressly claimed over
$100,000 in damages, it was forbidden to seek removal because both the ad
damnum clause and the plaintiff’s admissions remained unamended, and the
representations in those documents were “conclusive” as to the amount in
controversy. (Doc. 1 at 6, 8, 9 & n.6; Doc. 12 at 15, 16, 18-19). Wal-Mart is
mistaken.
For purposes of removal, “the sum demanded in good faith in the initial
pleading shall be deemed to be the amount in controversy, except that … the
notice of removal may assert the amount in controversy if the initial pleading
seeks … a money judgment, but the State practice … permits recovery of damages
in excess of the amount demanded ….” 28 U.S.C. § 1446(c)(2)(A). Alabama is
such a state. Breland v. Ford, 693 So. 2d 393, 397 (Ala. 1996) (“It is well settled

3

E.g., NPV Realty, LLC v. Nash, 2017 WL 1735101 at *2 (M.D. Fla. 2017);
Kamal-Hashmat v. Loews Miami Beach Hotel Operating Co., 2017 WL 433209 at *3
(S.D. Fla. 2017); see also Public Service Towers, Inc. v. Best Buy Stores, L.P., 28 F.
Supp. 3d 1313, 1315 (M.D. Ga. 2014) (same burden under judicial doctrine of equitable
estoppel).

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that a litigant seeking general damages for personal injuries, such as compensation
for physical pain and suffering, may recover an amount in excess of the amount
contained in the ad damnum clause of the complaint.”). This Court and others
have so ruled. Burns v. Windsor Insurance Co., 31 F.3d 1092, 1097 n.11 (11th Cir.
1994); Harris v. Aghababael, 81 F. Supp. 3d 1278, 1281 (M.D. Ala. 2015); Abner
v. United States Pipe & Foundry Company, 2017 WL 553135 at *6 (N.D. Ala.
2017); Coleman v. Unum Group Corp., 2015 WL 5284366 at *2 & n.2 (S.D. Ala.
2015). The ad damnum clause therefore could not have precluded removal in the
face of discovery responses expressly claiming over $100,000 in damages.
“Any matter admitted under this rule is conclusively established unless the
court on motion permits withdrawal or amendment of the admission.” Ala. R.
Civ. P. 36(b). Wal-Mart relies on this rule as precluding it from removing the
action even after the plaintiff expressly claimed over $100,000 in damages. Rule
36(b), however, is not to be construed “as a device whereby facts, obviously
disputed by the party propounding the request, may be conclusively established
against that party.” Irons v. Le Sueur, 487 So. 2d 1352, 1355 (Ala. 1986). The
rule thus does not apply where, as here, the proponent disputes the accuracy of the
admissions.
Even had it been bound by the plaintiff’s admissions for purposes of the
state court proceedings, Wal-Mart has made no showing – or even any argument –
that a state rule could render the plaintiff’s admissions conclusively binding on a
federal court evaluating its subject matter jurisdiction. “[E]ven if binding on the
parties, an admission or another form of agreement cannot bind a court in
determining jurisdiction.” Eckert v. Sears, Roebuck and Co., 2013 WL 5673511
at *2 (M.D. Fla. 2013). The amount in controversy is to be determined by a
preponderance of the evidence. 28 U.S.C. § 1446(c)(2)(B). A plaintiff’s
admission that the amount in controversy is below $75,000 is some evidence, but
her later assertion that the amount in controversy is above $75,000 is also evidence
(and – because it is more recent, more specific, and supported by citations to
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particular providers – likely more probative). The former does not conclusively
trump the latter and does not preclude removal.
Even could the plaintiff’s admissions prevent removal until and unless
amended, Wal-Mart has not shown that the plaintiff failed to seek amendment “in
bad faith in order to prevent” removal. 28 U.S.C. § 1446(c)(1). The plaintiff may
well have believed (as does the Court) that her interrogatory responses were
sufficient to support removal and so concluded that no amendment was needed.
Or, she may have overlooked her earlier admissions and not considered whether
they should be amended. Certainly Wal-Mart has neither alleged nor shown that it
confronted the plaintiff with the inconsistency and demanded retraction of the
admissions.
Finally, Wal-Mart argues that, from August 2015 to April 2016, the
plaintiff “deliberately failed to disclose the actual amount in controversy,” which
failure Section 1446(c)(3)(B) renders tantamount to bad faith. Wal-Mart, however,
has not demonstrated a deliberate failure to disclose. It relies almost exclusively
on a subrogation letter, received by plaintiff’s counsel two days before she served
her amended discovery responses in April 2016, which reflects medical expenses
of over $122,000 up to that point and over $113,000 up to the day suit was filed.
(Doc. 1-5 at 1-4; Doc. 1 at 8, 11; Doc. 12 at 4, 15-16).
Wal-Mart assumes rather than demonstrates that this letter proves the
amount in controversy was at all relevant times in excess of $75,000, but the Court
cannot indulge that assumption. Wal-Mart points to the total amount of health
care provider charges, but it has failed to show that the plaintiff was ever on the
hook for all those charges. Because the plaintiff was insured, she presumably was
not responsible for the gross amount of the charges but only for that portion of the
lower, adjusted amount (as agreed to by the provider and the insurer) left unpaid

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by the insurer, plus any amount she was obligated to reimburse her insurer from
proceeds of this lawsuit.4
Even if the plaintiff was on the hook for the gross amount of medical
charges, Wal-Mart has failed to show that she knew, prior to receiving the
subrogation letter, either the magnitude of those charges or that she was
responsible for paying them. Two days after receiving the letter, and a month after
having a second surgery, the plaintiff served her amended discovery responses, in
which she claimed over $100,000 in damages. This chronology suggests a change
of tack based on new information, and a “straightforward change in strategy” is
not bad faith. Miami Beach Cosmetic and Plastic Surgery Center, Inc. v.
UnitedHealthcare Insurance Co., 2016 WL 8607846 at *5 (S.D. Fla. 2016).
Wal-Mart argues that, because the plaintiff knew she had undergone
surgery and other medical treatment before filing her complaint, she was legally
obligated to investigate the resulting charges and her legal responsibility for them
and cannot profit from her willful ignorance. (Doc. 12 at 17-18). The only
removal case on which Wal-Mart relies offered no authority for this proposition
other than a case addressing an insurer’s duty to investigate a claim; the Court is
unable to make the mental leap required to extrapolate from that context into the
present one. At any rate, it appears the plaintiff did investigate, resulting in her
amended discovery responses pegging her damages at over $100,000.
Even had the plaintiff deliberately failed to disclose that the amount in
controversy exceeded $75,000, Wal-Mart’s failure to remove within one year
would remain unexcused. Suit was filed in August 2015, and the plaintiff served
her supplemental discovery responses, expressly claiming over $100,000, in April

4

For example, a July 23, 2015 entry reflects a gross charge of $197.40, with
payment by the insurer listed as $76.00 and the plaintiff’s liability listed as $19.00. (Doc.
1-5 at 4). Wal-Mart assumes this entry places the entire $197.40 in controversy, but at
most it places $95.00 in controversy: the $76.00 paid by the insurer plus the $19.00
owed by the plaintiff.

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2016. Because this disclosure was made eight months after suit was filed, any
previous failure to disclose did not “prevent [Wal-Mart] from removing the
action” within the one-year window of Section 1446(c)(1).5
CONCLUSION
For the reasons set forth above, the Court is unable to find that the plaintiff
acted in bad faith in order to defeat removal. Because the defendants’ removal is
therefore untimely, the plaintiff’s motion to remand is granted. This action is
remanded to the Circuit Court of Clarke County.
DONE and ORDERED this 16th day of November, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE

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Because this case does not involve such a situation, the Court does not consider
the potential consequences were a plaintiff to deliberately fail to disclose the actual
amount in controversy for a period less than a year and to add a non-diverse defendant
during that period, thereby preventing removal.
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