Derringer v. Cracker Barrel Old Country Store, Inc.

Filing 19

ORDER denying 16 Plaintiff's Motion for Remand. Signed by Judge Sheri Polster Chappell on 8/4/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPHINE DERRINGER,
Plaintiff,
v.

Case No: 2:15-cv-362-SPC-38MRM

CRACKER BARREL OLD COUNTRY
STORE, INC.,
Defendant.
/
ORDER1
This matter comes before the Court on Plaintiff's Motion for Remand (Doc. #16)
filed on July 16, 2015. Defendant filed a Response in Opposition on July 27, 2015. (Doc.
#17). The matter is ripe for review.
Background
On September 23, 2014, Plaintiff Josephine Derringer (“Derringer”) brought this
personal injury action against Defendant Cracker Barrel Old Country Store, Inc. (“Cracker
Barrel”) in Florida state court. (Doc. #1-1). Derringer alleges Cracker Barrel breached its
duty of care when a Cracker Barrel employee, Debra Kellams, negligently struck
Derringer’s body with a tray of food, causing injury to Derringer. (Doc. #2, at ¶8).
Thereafter, on June 18, 2015, Cracker Barrel removed this action to federal court

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pursuant to diversity jurisdiction. (Doc. #1). Now, Derringer asks the Court to remand
this action back to Florida state court.
Legal Standard
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove an action to federal
court only if the district court has jurisdiction based on diversity of citizenship of the parties
or federal question. Deutsche Bank Nat. Trust Co. v. Benaway, 2013 WL 3270399, at *1
(M.D. Fla. June 26, 2013). The removing party has the burden of proving that federal
jurisdiction exists by a preponderance of the evidence and the removing party must
present facts establishing its right to remove. Bolen v. Illinois Nat. Ins. Co., 2012 WL
4856811, at *2-4 (M.D. Fla. Aug. 28, 2012) (citing Williams v. Best Buy Company, Inc.,
269 F.3d 1316, 1319 (11th Cir. 2001)); see also Adventure Outdoors, Inc. v. Bloomberg,
552 F.3d 1290, 1294 (11th Cir. 2008).
When the defendant fails to meet its burden, the case must be remanded. Williams,
269 F.3d at 1321. Removal statutes are to be strictly construed against removal.
Bolen, 2012 WL 4856811, at *3 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108 (1941)); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (
“[R]emoval statutes are construed narrowly; when the parties dispute jurisdiction,
uncertainties are resolved in favor of remand.”). Any doubt as to proper subject matter
jurisdiction should be resolved against removal. Bolen, 2012 WL 4856811, at *2-4 (citing
Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir. 1979)). With these principles in mind, the
Court must evaluate the propriety of the removal here.

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Discussion
Derringer avers that remand to Florida state court is proper because Cracker
Barrel “failed to timely seek removal, failed to establish complete diversity among the
parties, and failed to establish the amount in controversy.” (Doc. #16 at 1). In response,
Cracker Barrel argues that removal was timely, the parties are diverse, and the amount
in controversy has been established. (Doc. #17).

The Court finds Cracker Barrel’s

argument persuasive.
Derringer first argues that removal was untimely because Crack Barrel had access
to discovery that illustrated removal was available months before this action was
removed. (Doc. #16 at 2-3). That discovery, as Derringer explains, included her medical
records, medical bills, interrogatory answers, and responses to requests for production.
(Doc. #16 at 2-3). But in making this argument, Derringer fails to provide the Court with
a copy of these documents, and instead relies on non-substantiated, conclusory
statements. (Doc. #16 at 2-3). In stark contrast, Cracker Barrel responds by providing
the Court with copies of the alleged interrogatory answers and responses to requests for
production. (Doc. #17 at 4-7). And a review of these documents reveals that there was
no indication that the amount in controversy exceeded $75,000. (Doc. #17 at 4-7).
Derringer simply asserted numerous objections without a substantive answer. (Doc. #17
at 4-7).
Eventually, Cracker Barrel ascertained the amount in controversy at Derringer’s
May 20, 2015 deposition. (Doc. #1-5). At that time, Derringer admitted that she believes
her claim to be worth more than $200,000 – an amount that clearly exceeds the amountin-controversy requirement. (Doc. #1-5). After confirming that the amount in controversy

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exceeded $75,000, Cracker Barrel moved promptly to remove this action, doing so less
than a month after the deposition. (Doc. #1). Because Cracker Barrel removed this action
shortly after ascertaining the amount in controversy for the first time, meeting all
necessary deadlines under § 1446, the Court finds that removal was timely and that the
amount in controversy has been established.
Derringer’s next argues that Cracker Barrel “has provided insufficient evidence of
diversity among the parties.” (Doc. #16 at 3). In doing so, Derringer does not dispute
that she is a citizen of Florida, but rather contends that Cracker Barrel has failed to
establish its citizenship. In response, Cracker Barrel provided an affidavit from its Director
of Risk Management, Robert Behnke, who swears Cracker Barrel is both incorporated
and maintains its principal place of business in Tennessee. (Doc. #17 at 12). Without
the benefit of any contradicting evidence, the Court finds that this affidavit is sufficient to
establish Cracker Barrel’s citizenship in Tennessee, therefore illustrating the Parties are
diverse in citizenship.
Based on the foregoing, Derringer’s Motion for Remand is due to be denied.
Accordingly, it is now ORDERED:
Plaintiff's Motion for Remand (Doc. #16) is DENIED.
DONE and ORDERED in Fort Myers, Florida, this 4th day of August, 2015.

Copies: All Parties of Record

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