MCCOY v. KROGER COMPANY

Filing 13

ORDER GRANTING 9 Motion to Remand. The Court, in its discretion, declines to award the Plaintiff attorney's fees and costs associated with defending against the removal of her case. Ordered by U.S. District Judge Marc Thomas Treadwell on 12/16/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

BARBARA McCOY,

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Plaintiff,
v.
THE KROGER COMPANY,
Defendant.

CIVIL ACTION NO. 5:13-CV-393 (MTT)

ORDER
Before the Court is the Plaintiff’s motion to remand this case to the State Court of
Houston County. (Doc. 9). For the reasons discussed below, this motion is GRANTED.
I. FACTUAL BACKGROUND
On July 8, 2010, Plaintiff Barbara McCoy alleges she slipped and fell due to a
wet substance on the floor of one of Defendant The Kroger Company’s grocery stores.
(Doc. 1-2 at ¶¶ 6-8). McCoy seeks $12,110.89 in special damages for her medical
expenses resulting from the injury. (Doc. 1-2 at ¶ 20). She also seeks an unspecified
amount in general damages for Kroger’s alleged negligence and her past, present, and
future pain and suffering. (Doc. 1-2 at ¶ 22). McCoy further requests the costs of
litigation and her attorney’s fees because of Kroger’s alleged bad faith and stubborn
litigiousness. (Doc. 1-2 at ¶ 23).
Prior to filing suit, McCoy offered to settle her claim for $125,000. (Doc. 11-1). In
her settlement demand package, McCoy thoroughly details the medical treatment she
received for her alleged injuries and the cost of that treatment. Her injuries consist

primarily of a right wrist contusion, a left ankle sprain, and an acute shoulder sprain.
(Doc. 11-1 at 3-4). Her treatment consisted primarily of physical therapy. Her final visit
for these injuries occurred November 3, 2011, and there is no indication from the
settlement package that McCoy requires further treatment or has severe persisting pain.
On October 14, 2013, Kroger removed McCoy’s action from the State Court of
Houston County, Georgia, pursuant to 28 U.S.C. § 1446. On November 13, 2013,
McCoy filed her motion to remand.1
II. DISCUSSION
A. Removal Standard
An action filed in state court is removable to federal court where the federal court
would have federal question or diversity jurisdiction. 28 U.S.C. § 1441(a). “For removal
to be proper, the removing party must establish federal subject matter jurisdiction at the
time the notice of removal is filed.” Cross v. Wal-Mart Stores, E., LP, 2011 WL 976414,
at *1 (M.D. Ga.) (citing Leonard v. Enterprise Rent-A-Car, 279 F.3d 967, 972 (11th Cir.
2002)). The party seeking removal bears the burden of establishing federal jurisdiction.
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010) (citations omitted).
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In McCoy’s reply to her motion to remand, she argues for the first time that Kroger’s notice of removal is
procedurally defective because Kroger failed to remove her original action in state court but has now
removed her renewed state action, filed pursuant to O.C.G.A. § 9-2-61, which is substantially the same as
the original action. It is not clear that this argument was timely raised before the Court. “A motion to
remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal under section 1446(a).” 28 U.S.C. § 1447(c).
Courts appear to be split on whether a party may raise a procedural argument outside of the 30-day
window even if the initial motion to remand was timely filed. Compare BEPCO, L.P. v. Santa Fe Minerals,
Inc., 675 F.3d 466, 471 (5th Cir. 2012) (“[W]e reject any suggestion that the timing of the presentation of a
removal defect—rather than the submission of the remand motion—is what matters for a timeliness
analysis under Section 1447(c).”), with N. Cal. Dist. Council of Laborers v. Pittsburg-Des Moines Steel
Co., 69 F.3d 1034, 1038 (9th Cir. 1995) (“[T]”he critical date is not when a motion to remand is filed, but
when the moving party asserts a procedural defect as a basis for remand.”). The Court need not address
these issues, however, because the Court finds it lacks subject matter jurisdiction over this action for the
reasons discussed below.

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Diversity jurisdiction exists when the opposing parties are citizens of different
states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. Where “the
plaintiff has not pled a specific amount of damages, the removing defendant must prove
by a preponderance of the evidence that the amount in controversy exceeds the
jurisdictional requirement.” Pretka, 608 F.3d at 752 (citations omitted). However, “a
removing defendant is not required to prove the amount in controversy beyond all doubt
or to banish all uncertainty about it.” Id. at 754 (citations omitted). The removing
defendant may satisfy this burden by showing it is “facially apparent” from the complaint
that the amount in controversy exceeds $75,000, “even when the complaint does not
claim a specific amount of damages[,]” or with the use of additional evidence
demonstrating removal is proper. Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061
(11th Cir. 2010) (internal quotation marks and citations omitted). Any uncertainties
should be resolved in favor of remand. Burns v. Windsor Inc., 31 F.3d 1092, 1095 (11th
Cir. 1994) (citations omitted). “[C]ourts may use their judicial experience and common
sense in determining whether the case stated in a complaint meets federal jurisdictional
requirements.” Roe, 613 F3d at 1062.
B. Amount in Controversy
The Parties do not dispute that they are diverse, but they disagree whether the
amount in controversy exceeds $75,000. It is not facially apparent from McCoy’s
complaint that the amount in controversy exceeds $75,000. The special damages pled
by McCoy total $12,110.89 for medical expenses. To satisfy the amount in controversy,
Kroger must show by a preponderance of the evidence that McCoy’s general damages

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exceed $62,889.11. Kroger relies on McCoy’s pre-suit settlement offer as evidence that
removal is proper.
First, a settlement offer alone is not determinative of the amount in controversy,
although it does “count[] for something.” Burns, 31 F.3d at 1097. How much it counts
depends on its content. A settlement offer that reflects “puffing and posturing” is entitled
to little weight. Jackson v. Select Portfolio Serving, Inc., 651 F. Supp. 2d 1279, 1281
(S.D. Ala. 2009). On the other hand, “[m]ore weight should be given to a settlement
demand if it is an ‘honest assessment of damages.’” Cross, 2011 WL 9764141, at *2
(citations omitted). “[S]ettlement 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.” Farley v. Variety Wholesalers, Inc., 2013 WL 1748608, at *2
(M.D. Ga.) (alteration in original) (internal quotation marks omitted).
Here, the Court believes McCoy’s $125,000 settlement offer is not an honest
assessment of damages and was mere posturing for settlement purposes. The
objective evidence outlined in the settlement offer consists of minor treatment, including
physical therapy and pain medication, for relatively minor injuries. Although the offer
indicates McCoy still suffers from minor pain and stiffness, the letter also states her pain
has been substantially lessened, and she does not have any serious ongoing concerns.
Further, the offer indicates McCoy’s treatment concluded more than two years ago and
does not mention any needed or suggested further treatment. Cf. Farley, 2013 WL
1748608, at *3 (concluding the amount in controversy was satisfied by the plaintiff’s
$150,000 settlement demand, despite alleging only $13,095.08 in past medical
expenses in the complaint, because of the possibility of two future surgeries and the fact

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that the plaintiff remained in severe pain). In the Court’s experience, it is not likely
McCoy will recover nearly $63,000 in general damages.
Second, to the extent Kroger is relying on McCoy’s refusal to stipulate the total
value of her damages is less than $75,000, a refusal by itself is also inadequate to
prove the amount in controversy. “There are several reasons why a plaintiff would not
so stipulate, and a refusal to stipulate standing alone does not satisfy [Kroger’s] burden
of proof on the jurisdictional issue.” Williams v. Best Buy Co., 269 F.3d 1316, 1320
(11th Cir. 2001).
III. CONCLUSION
The Plaintiff’s motion to remand is GRANTED, and this case is REMANDED to
the State Court of Houston County. The Court, in its discretion, declines to award the
Plaintiff attorney’s fees and costs associated with defending against the removal of her
case.
SO ORDERED, this 16th day of December, 2013.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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