Brenda Myers v. Lowe's Home Centers, LLC

Filing 15

REMAND ORDER by Judge Virginia A. Phillips remanding case to Riverside County Superior Court, Case number PSC1402986. Case Terminated. Made JS-6. (mrgo)

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1 CHARLES D. MAY, ESQ.; STATE BAR NO.: 129663
GENE B. SHARAGA, ESQ.; STATE BAR NO.: 131661
2 BRIAN J. KIM, ESQ.; STATE BAR NO.: 282538

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7 Attornexs for Defendant,

LOWE'S HOME CENTERS, LLC
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION
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BRENDA MYERS,

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CASE NO.: 5:14-cv-02175-VAP-DTB

Plaintiff,

(Riverside County Superior Court Case No.:
PSC 1402986)

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vs.

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LOWE'S COMPANIES, INC., and
DOES 1 to 100, Inclusive,

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lPROPOSEDl REMAND ORDER

Defendants.
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I. BACKGROUND

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("Plaintiff') commenced the above-

On or about May 30, 2014, Plaintiff

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entitled civil action in the Superior Court for the County of Riverside by filing a

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Complaint therein entitled Brenda Myers v. Lowe's Companies, Inc., and DOES 1

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TO 100, inclusive, Case No. PSC1402986. Plaintiff s complaint for negligence and

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premises liabilty arises from an alleged incident on July 16,2013, at Defendant's

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retail store in La Quinta, California. On that date, Plaintiff alleges that she loaded

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approximately five (5) bags of concrete into a shopping cart. Plaintiff alleges that as

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she was pushing the subject shopping cart down an aisle, the front wheels of

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got stuck in a drainage gate on the floor. Plaintiff further

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the cart

alleges that the shopping

cart broke, which caused her to fall onto it. Plaintiff attributes her injuries to the
alleged negligence of

Defendant. Specifically, Plaintiff contends that Defendant was
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(PROPOSED) REMAND ORDER

Myers v. Lowe's

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aware of a dangerous condition on its premises and the faulty shopping cart and

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failed to take corrective measures to maintain/repair it.

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On September 22,2014, Plaintiff

Damages on

filed her Statement of

Damages unequivocally stated that she sought

Defendant. Plaintiffs Statement of

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more than $715,000.00 in combined special and general compensatory damages.

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Based on this "other paper", Defendant determined that the amount in controversy

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exceeded the $75,000.00 statutory minimum. Accordingly, Defendant removed the

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matter to federal court pursuant to 28 U.S.C. §§1332, 1441, and 1367.

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The parties have now agreed and stipulate to limit any and all recovery of
damages by plaintiff

BRENDA MYRS in this matter at $75,000 or less, as

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evidenced by the Stipulation Capping Plaintiffs Damages and Recovery at $75,000,
executed by both plaintiff

BRENDA MYERS and her counsel, Douglas B. Brewer,

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Esq. Accordingly, the parties seek an order from this Court remanding the case to

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the Riverside County Superior Court, Case No.: PSC1402986.

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II. ANALYSIS

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United States Code, Title 28, Section 1447( c), provides that ~~(iJf at any time

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before final judgment it appears that the district court lacks subject matter
the parties'

jurisdiction, the case shall be remanded." (Emphasis added). In light of

stipulation limiting any and all recovery by plaintiff

BRENDA MYERS to $75,000

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or less, this Court lacks subject matter jurisdiction and must, therefore, remand the

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case to state court pursuant to 28 U.S.C. § 1447(c). See Bruns v. NCUA 122 FJd

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1251, 1257 (9th Cir. 1997) ("Section 1447 (c) is mandatory, not discretionary.")

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III

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-2(PROPOSED) REMAND ORDER

Myers v. Lowe's

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III. CONCLUSION

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2 Because the amount in controversy does not exceed $75,000, this Court lacks
3 subject matter jurisdiction in the present case. Accordingly, the case is

4 REMANDED to the Riverside County Superior Court, Case No.: PSC1402986.
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SO ORDERED this _26th_ day of _Februqary, 2015.

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United States District Court Judge

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Submitted By:

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THARPE & HOWELL, LLP

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By:

CHARLES D. MAY
GENE B. SHARAGA
BRIAN J. KIM
Attorneys for Defendant,
LOWE'S HOME CENTERS, LLC

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-3(PROPOSED) REMAND ORDER

Myers v. Lowe's

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PROOF OF SERVICE

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STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

4 1, At the time of service I was at least 18 years of age and not a party to this legal action.

5 2. My business address is 15250 Ventura Boulevard, Ninth Floor, Sherman Oaks, CA 91403.
6 3. I served copies ofthe following documents (specify the exact title of each document served):

PROPOSED REMAND ORDER

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8 4. I served the documents listed above in item 3 on the following persons at the addresses listed:

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72-098 Highway 111

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Rancho Mirage, CA 92270
[phone]

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5.

a.

represented by an attorney, delivery was made to the attorney or at the attorney's

office by leaving the documents in an envelope or package clearly labeled to
identify the attorney being served with a receptionist or an individual in charge of
the office. (2) For a party delivery was made to the party or by leaving the
documents at the party's residence between the hours of eight in the morning and six
in the evening with some person not less than 18 years of age.

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By personal service. I personally delivered the documents on the date shown

below to the persons at the addresses listed above in item 4. (1) For a pary
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Attorneys for Plaintiff,
BRENDA MYERS

Douglas B. Brewer, Esq.
WALTER CLARK LEGAL GROUP

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b.

By United States mail. I enclosed the documents in a sealed envelope or package

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addressed to the persons at the addresses in item 4 and (specif one):

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(l) deposited the sealed envelope with the United States Postal Service, with

the postage fully prepaid on the date shown below, or
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(2) placed the envelope for collection and mailing on the date shown below,

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following our ordinary business practices. I am readily familar with this

business's practice for collecting and processing correspondence for
mailng. On the same day that correspondence is placed for collection and
business with the United
mailing, it is deposited in the ordinary course of
States Postal Service, in a sealed envelope with postage fully prepaid.

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I am a resident or employed in the county where the mailng occured. The envelope
or package was placed in the

mail

at Sherman Oaks, California.

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c.

By overnight delivery. I enclosed the documents on the date shown below in an

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envelope or package provided by an overnight delivery carer and addressed to the
person at the addresses in item 4. I placed the envelope or package for collection and

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overnght delivery at an office or a regularly utilzed drop box of the overnight delivery

carier.
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- 4PROPOSED REMAND ORDER

Myers v. Lowe's

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d. By messenger service. I served the documents on the date shown below by placing

them in an envelope or package addressed to the person on the addresses listed in
item 4 and providing them to a professional messenger service for service.

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e. By fax transmission. Based on an agreement of the parties to accept service by fax

transmission, I faxed the documents on the date shown below to the fax numbers of

the persons listed in item 4. No error was reported by the fax machine that I used. A
copy of
the fax transmission, which I printed out, is attached to my fie copy.

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the parties to

f. Bye-mail or electronic transmission. Based on an agreement of

accept service bye-mail or electronic transmission, I caused the documents to be sent

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of

on the date shown below to the e-mail addresses

the

persons

listed

in

item

4.

I did

not receive within a reasonable time after the transmission any electronic message or
other indication that the transmission was unsuccessfuL.

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6. I served the documents by the means described in item 5 on (date): (See below)

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I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.

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MICHELE SCHEE
DATE

(SIGNATURE OF DECLARANT)

(TYPE OR PRINT NAME)

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LARA TION OF MESSENGER

By personal service. I personally delivered the envelope or package received from the

declarant above to the persons at the addresses listed in item 4. I delivered the documents on

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the date shown below to the persons at the addresses listed in item 4. (1) For a pary
represented by an attorney, delivery was made to the attorney or at the attorney's office by

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leaving the documents in an envelope or package, which was clearly labeled to identify the

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party, delivery was made to the par or by leaving the documents at the par's residence

the office. (2) For a

attorney being served, with a receptionist or an individual in charge of

between the hours of eight in the mornng and six in the evening with some person not less than
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18 years of age.

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At the time of service, I was at least 18 years of age. I am not a party to the above
referenced legal proceeding.

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I served the envelope or package. as stated above. on (date):
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I declare under penalty of

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perjury under the laws of

the State of

California that the foregoing is true

and correct.

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DATE

(TYPE OR PRINT NAME)

(SIGNATURE OF DECLARANT)

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I :\26000-000\26264\Pleadings\FEDERAL \Proposed Remand Order.docx

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-5PROPOSED REMAND ORDER

Myers v. Lowe's