Musser v. Wal-Mart Stores East, LP
Filing
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ORDER DENYING PLAINTIFF'S MOTION TO REMANDdenying 8 Motion to Remand to State Court. Signed by Judge Marcia G. Cooke on 4/12/2017. (tm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:16-cv-62231-COOKE/TORRES
TAVIA MUSSER,
Plaintiff,
vs.
WALMART STORES EAST, L.P.,
Defedant.
_______________________________________/
ORDER DENYING PLAINTIFF’S MOTION TO REMAND
This case arises from injuries Plaintiff Tavia Musser sustained from an allegedly
dangerous condition on Defendant Walmart Stores East, L.P.’s (“Walmart”) premises.
Walmart removed this case from state court, asserting federal diversity jurisdiction under 28
U.S.C. § 1332. Musser challenges Walmart’s removal, arguing that the amount in
controversy is less than the $75,000 statutory requirement.
Pending is Musser’s Motion to Remand to State Court (“Motion”). (ECF No. 8).
Walmart has filed its Response in Opposition to Musser’s Motion (ECF No. 9), and Musser
submitted her Reply (ECF No. 10). The Motion is therefore fully briefed and ripe for
adjudication.
I have reviewed the parties’ arguments, the record, and the relevant legal authorities.
For the reasons that follow, I deny Musser’s Motion.
BACKGROUND
Musser is a citizen of the State of Florida. (ECF No. 1-6 ¶ 2). Walmart, a limited
partnership registered in the state of Delaware, is a wholly-owned subsidiary if Walmart
Stores, Inc., a Delaware corporation that maintains its principal place of business in
Arkansas.1 (ECF No. 1 ¶¶ 8, 10).
On or about September 11, 2014, Musser slipped on a transitory substance on
Walmart’s premises (the “Store”). (ECF No. 8 ¶ 1). Musser alleges that Walmart breached
1
See Grupo Dataflux v. Atlas Glob. Grp. L.P., 541 U.S. 567, 569 (2004) (a limited partnership is
a citizen of each State or foreign country of which any of its partners is a citizen).
1
the duty of care it owed to her as an invitee of the Store, and that the breach resulted in pain
and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment
of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings,
loss of ability to earn money, and aggravation of a previously existing condition. (ECF No.
1-6).
On May 3, 2016, Musser sent a demand letter (“Demand Letter”) to Walmart stating
her medical expenses to date as a result of the incident. (ECF No. 8-1 at 2-3). The Demand
Letter further indicated that Musser had consented to surgery on her back, which she
estimated would cost $100,000. (Id.). She proposed a settlement of $325,000. (Id.).
On June 22, 2016, Musser filed her Complaint for Damages and Demand for Jury
Trial (“Complaint”) in Florida state court. (ECF No. 1-3 at 34). On August 3, 2016, Musser
filed her Amended Complaint alleging one count of negligence against Walmart. (ECF No.
1-6).
On August 18, 2016, Musser’s counsel sent Walmart’s counsel updated incidentrelated medical bills totaling more than $30,000, and again sent the Demand Letter. (ECF
Nos. 8-1, 8-2). Walmart then removed the action to federal court on September 19, 2016.
(ECF No. 1). On September 28, 2016, after Walmart filed its Notice of Removal, Musser
offered to settle the claim for $74,999.99. (ECF No. 8-5). Shortly thereafter, on October 14,
2016, she filed her Motion to Remand. (ECF No. 8).
STANDARD OF REVIEW
Federal courts are courts of limited jurisdiction. Federal jurisdiction exists only when
a controversy involves either a question of federal law or diversity of citizenship between the
parties. See 28 U.S.C. §§ 1331-32. Removal statutes are strictly construed. Syngenta Crop Prot.
Inc. v. Henson, 537 U.S. 28, 32 (2002). Courts should remand all cases where subject matter
jurisdiction is in doubt. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir.1999).
The parties here do not contend that their controversy involves a question of federal law.
Accordingly, this Court has jurisdiction over the instant case only if diversity jurisdiction exists.
Diversity jurisdiction exists when the suit is between citizens of different states and the amount
in controversy exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332. There is
no dispute in this case that the parties are of diverse citizenship. Thus, the only jurisdictional
issue concerns whether the amount in controversy requirement is satisfied.
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The removing defendant bears the burden of establishing facts supporting federal
jurisdiction. See Allen v. Toyota Motor Sales, U.S.A., Inc., 155 F. App'x 480, 481 (11th Cir.
2005). I have the authority to rely on evidence “put forward by the removing defendant, as
well as reasonable inferences and deductions drawn from that evidence, to determine
whether the defendant has carried its burden.” South Florida Wellness, Inc. v. Allstate Ins. Co.,
745 F.3d 1312, 1315 (11th Cir. 2014).
“[A] removing defendant is not required to prove the amount in controversy beyond
all doubt or to banish all uncertainty about it.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d
744, 753 (11th Cir. 2010). Rather, the removing defendant must establish the amount in
controversy by a preponderance of the evidence. Williams v. Best Buy Co., 269 F.3d 1316,
1319 (11th Cir. 2001). To establish the amount in controversy by a preponderance of the
evidence, “[d]efendants may introduce their own affidavits, declarations, or other
documentation – provided of course that removal is procedurally proper.” Pretka, 608 F.3d
at 755.
Under 28 U.S.C. § 1446(b), a party may remove to federal court only if the removal
occurs within one of two thirty-day time periods. The first thirty-day time period begins to
run from the date of service of the state court complaint, if the complaint is removable on its
face. 28 U.S.C. § 1446(b)(1). In that case, the complaint must, inter alia, affirmatively reveal
that the plaintiff is seeking damages in excess of $75,000.2 Jade East Towers Dev. v. Nationwide
Mut. Ins. Co., 936 F. Supp. 890, 892 (N.D. Fla. 1996).
If the complaint is not removable on its face, the second thirty-day time period starts
to run from the receipt of an amended pleading, motion, order, or “other paper” from which
the defendant can first ascertain that the case is removable. 28 U.S.C. §1446(b)(3). “The
definition of ‘other paper’ is broad and may include any formal or informal communication
received by a defendant.” Lamberston v. Go Fit, LLC, 918 F. Supp. 2d 1283, 1285 (S.D. Fla.
2013) (citation omitted); see generally Wright & Miller, Federal Practice and Procedure § 3731,
at 524, 545 (“[F]ederal courts have given the reference to ‘other paper’ an expansive
construction and have included a wide array of documents within its scope . . . [including]
correspondence between the parties and their attorneys or between the attorneys.”).
2
There is no dispute that the Complaint, as initially filed, was not removable under Section
1446(b)(1).
3
Specifically, “responses to requests for admission, settlement offers, and other
correspondence between parties can be ‘other paper’ under 28 U.S.C. § 1446(b).” Wilson v.
Target Corp., 2010 WL 3632794, at *2 (S.D. Fla. 2010); see Katz v. J.C. Penney Corp., 2009
WL 1532129, at *4 (S.D. Fla. 2009) (court may consider settlement offers and demands
when evaluating whether a case has been properly removed). While pre-suit materials can
support removal, a defendant must receive an “other paper” after the initial pleading to
trigger the thirty-day time period under Section 1446(b)(3). See Jade E. Towers Developers v.
Nationwide Mut. Ins. Co., 936 F. Supp. 890, 891 (N.D. Fla. 1996) (“By its plain terms the
statute requires that if an ‘other paper’ is to trigger the thirty-day time period of the second
paragraph of Section 1446(b), the defendant must receive the ‘other paper’ only after it
receives the initial pleading.”).
DISCUSSION
Musser moves for remand arguing: (1) Walmart’s reliance on the Demand Letter as
“other paper” to determine the amount in controversy is misguided; and (2) Walmart has
not met its burden of showing that the amount in controversy exceeds $75,000. I address
each argument in turn.
A. The Demand Letter
Musser argues “pre-suit settlement demand letters will not be considered as ‘other
paper’ for the purpose of satisfying the amount in controversy requirement.” Negron v. Sears
Roebuck & Co., 2006 WL 1169697, at *1 (M.D. Fla. 2006). She contends that the Demand
Letter does not constitute an “other paper” because she first sent it before she filed the statecourt Complaint. But she ignores the fact that she sent the Demand Letter, along with
updated medical bills and records, to Walmart a second time after she served the state-court
Complaint. (ECF Nos. 8-1, 8-2). At that point, her pre-suit Demand Letter became a postsuit Demand Letter. See, e.g., Lamb v. State Farm Mut. Auto Ins. Co., 2010 WL 6790539, at *2
(M.D. Fla. 2010) (denying motion to remand, and distinguishing between pre-suit demand,
which was “mere posturing,” and the “second and more detailed” post-suit demand).
Courts routinely permit “the use of post-suit demand letters in determining the amount in
controversy requirement.” Saberton v. Sears Roebuck and Co., 392 F. Supp. 2d 1358, 1360
(M.D. Fla. 2005). I may therefore consider Musser’s post-suit Demand Letter to determine
whether removal is proper.
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B. Amount in Controversy
Musser contends that Walmart has not met its burden of establishing that the
amount in controversy exceeds $75,000. I disagree. The Demand Letter sufficiently
establishes that the amount in controversy exceeds the statutory minimum.
In some instances, demand letters and settlement offers merely “reflect puffing and
posturing.” Wilson, 2010 WL 3632794, at *3. On the other hand, these communications are
a reliable indicator of the damages sought when they provide “specific information to
support the plaintiff’s claim for damages.” Lamb v. State Farm Fire Mut. Auto. Ins. Co., 2010
WL 6790539, at *2 (M.D. Fla. 2010) (quotation omitted).
Here, the Demand Letter provides ample information from which to estimate the
amount in controversy. Specifically, Musser has incurred tens of thousands of dollars in
medical expenses (ECF No. 8-2) and has consented to a surgery that has a projected cost of
$100,000. (ECF No. 8-1 at 2). Additionally, Musser’s doctor states that Musser will
“continue to require therapy on a yearly basis . . . at least 4-6 weeks of therapy per year at an
approximate cost of $4,000 per year,” in addition to “at least 3-4 neurological follow-ups per
year at a cost of $800.00 per year.” (ECF No. 8-1 at 38). In sum, the preponderance of the
evidence indicates that the amount in controversy exceeds $75,000.3 Walmart therefore has
established facts sufficient to support federal diversity jurisdiction under 28 U.S.C. § 1332.
See Allen, 155 F. App'x at 481.
CONCLUSION
In light of the above, I DENY Musser’s Motion to Remand to State Court (ECF No.
8).
DONE and ORDERED in chambers at Miami, Florida, this 12th day of April 2017.
3
Musser maintains that her post-suit offer to settle the case for $74,999.99 shows that the
amount in controversy is less than $75,000. But “a plaintiff may not defeat removal by
subsequently changing [her] damage request, because post-removal events cannot deprive a
court of jurisdiction once it has attached.” Simmons v. PCR Tech., 209 F. Supp. 2d 1029,
1032 (N.D. Cal. 2002) (quoting St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283,
292 (1938)).
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Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record
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