Robinson v. Peck et al
Filing
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OPINION AND ORDER GRANTING 6 Motion to Remand to State Court. The Clerk is DIRECTED to REMAND this action to the Superior Court of DeKalb County, Georgia. Signed by Judge William S. Duffey, Jr on 11/12/2014. (anc)
Anthony Peck (“Peck”) was the General Manager at the time of the accident and
had “overall responsibility to keep the premises in good repair and free of defects
and dangers to the public who would come upon the premises as business
invitees.” (Compl. at ¶ 2). Plaintiff further asserts that Advance and its agents
were negligent in failing to warn him of the “dangerous condition imminently
perilous to Plaintiff.” (Id. at ¶ 10). Plaintiff states that he suffered “severe injuries
of body and mind [that he] still suffers, and continues to suffer . . . [and was]
permanently partially disabled.” (Id. at ¶¶ 12, 15). Plaintiff seeks general and
special damages, in unspecified amounts, “the costs of this action,” and “further
relief that the Court or jury may deem fair, just, and equitable.” (Id. at ¶ 18).
On April 30, 2014, a process server personally served a copy of the
Complaint and Summons on Advance’s registered agent in Marietta, Georgia.
On May 1, 2014, process server Roberto Zayas (“Zayas”) attempted to serve
Peck by leaving a copy of the Complaint and Summons with current store
manager, Phillip Johnson.2
On May 20, 2014, Zayas attempted to serve Peck at 3862 Pleasant Oak
2
Defendants dispute whether serving the Complaint to Phillip Johnson was
sufficient service as to Anthony Peck because he was not employed by Advance on
May 1, 2014, and Phillip Johnson was not “an agent with any authority to accept
service of process on his behalf.” (Notice at ¶ 4).
2
Drive, Lawrenceville, Georgia. (Ex. A [6.1] at 10). There, he purportedly
encountered Martha Johnson in the driveway. Zayas asked whether Peck lived at
the address. According to Zayas, she would not confirm or deny whether Peck
lived there.3 (Id.). Based on Ms. Johnson’s evasive response, Zayas states that he
had reason to believe Peck resided at the address and placed the Summons and
Complaint in Ms. Johnson’s hands. (Id.). She allegedly threw the papers to the
ground, stating that she did not want to get involved in the matter and told Zayas
that she would notify Peck that he was searching for him. (Id.). Zayas states that
he “notoriously served Anthony Peck by leaving Summons, Complaint and
Appointing order in hand of Ms. Martha Johnson.” (Id.).
On May 20, 2014, Defendant’s counsel sent a proposed stipulation to
Plaintiff’s counsel, requesting that Plaintiff stipulate that his damages are less than
$75,000. (“Proposed Stipulation” [1.7]). Plaintiff did not sign the stipulation.
On May 29, 2014, Defendant removed the DeKalb County action to this
Court on the basis of diversity jurisdiction. (Notice at ¶ 7). In support of removal,
Defendant states that Plaintiff is a citizen of Chamblee, DeKalb County, Georgia
and that Advance is a corporation “formed under the laws of the State of
Delaware” and headquartered in Roanoke, Virginia. (Id. at ¶ 8). Defendant asserts
3
On May 21, 2014, Peck confirmed that his address is 3862 Pleasant Oak
Drive, Lawrenceville, Georgia in his affidavit. (“Peck Aff.” [1.4] ¶ 1).
3
that Peck was not served and thus was not required to join the removal because he
was not a party at the time of removal. 4 Defendant further contends that complete
diversity exists between Plaintiff and Advance. Defendant claims that the amount
in controversy requirement is also met because Plaintiff did not sign Advance’s
requested stipulation that Plaintiff’s damages in this action do not exceed $75,000
exclusive of interests and costs.5 (Id. at ¶ 9).
On June 26, 2014, Plaintiff filed his Motion to Remand. Plaintiff argues that
removal was improper because Peck, a properly served defendant in this action,
did not join in the removal. (Mot. at ¶¶ 1-6). Plaintiff also asserts that Plaintiff
and Peck are citizens of Georgia and thus complete diversity does not exist. (Id. at
¶ 7). Finally, Plaintiff argues that Defendant did not meet its burden to show, by a
preponderance of the evidence, that the jurisdictional amount requirement is met.
On July 10, 2014, Advance filed its Brief in Opposition to Plaintiff’s Motion
to Remand (“Opposition” [8]). Defendant argues that Peck was fraudulently
4
Defendant also argues in its Opposition to Remand that the affidavit of
service regarding service at 3862 Pleasant Oak Drive “does not indicate that
[service] was completed on the premises on Anthony Peck’s home.” (Opp. at 3).
The affidavit does, however, state that Zayas “encountered [Martha Johnson] at the
driveway.” (Ex. A. [6.1] at 10).
5
Defendant argues that, because Plaintiff declined to sign the stipulation, “[i]t
must therefore be presumed that Plaintiff contends that the amount in controversy
is in excess of $75,000, and as such, this action meets the jurisdictional
requirements of 28 U.S.C. § 1332(a).” (Notice at ¶ 9).
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joined to defeat diversity and his citizenship is not considered to determine if
diversity exists.6 (Opp. at 5). Defendant argues also that Peck was not properly
served, is not a party to the case, and was not required to join the removal. (Id. at
10-13). Defendant reiterates that Plaintiff refused to stipulate to limit his claim for
damages to $75,000, and argues further that the nature of the damages he alleges
establishes, by a preponderance of the evidence, that the jurisdictional amount was
met. (Id. at 14-15).
II.
DISCUSSION
A.
Legal Standard
“Any civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the defendant.”
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Defendant argues that Peck should be dismissed because Plaintiff cannot
establish a cause of action against him. (Opp. at 6). Advance asserts that Peck
cannot be personally liable for Plaintiff’s fall because he was not an owner or
occupier of the premises, and was not exercising supervisory control over the
premises at the time of the accident. (Id. at 6-8).
Defendant also states that the history of this case supports that Peck was
joined simply to destroy diversity. (Id. at 9-10). On July 11, 2013, Plaintiff filed
his original state court action naming Advance Auto Parts as the only defendant.
(Case No. 13A-47903-1). Advance removed the case to this Court on the basis of
diversity jurisdiction. (Case No. 1:13-cv-02678-JEC). Plaintiff later moved to
voluntarily dismiss the case without prejudice. On March 18, 2014, Judge Carnes
granted the motion. On April 25, 2014, Plaintiff re-filed this action in state court
naming Anthony Peck and Advance as defendants.
5
28 U.S.C. § 1441(a). Federal district courts have original jurisdiction over claims
in which the amount in controversy exceeds $75,000 and is between citizens of
different states. 28 U.S.C. § 1332(a). Defendant removed this action based on
diversity jurisdiction.
A removing defendant must, upon removal, file a notice of removal
“containing a short and plain statement of the grounds for removal.” 28 U.S.C.
§ 1446. When removal is based on diversity of citizenship pursuant to § 1441(a),
“all parties who are properly joined and served must join in or consent to the
removal of the action.” 28 U.S.C. § 1446(b)(2)(A).
Under Georgia law, a plaintiff must serve prospective defendants in
accordance with O.G.C.A. § 9-11-4(e)(7). Section 9-11-4(e)(7) requires service on
the “defendant personally, or by leaving copies thereof at the defendant’s dwelling
house or usual place of abode with some person of suitable age and discretion then
residing therein, or by delivering a copy of the summons and complaint to an agent
authorized by appointment or by law to receive service of process.”
O.G.C.A. § 9-11-4(e)(7) (emphasis added).
After showing that citizenship requirements are met, a district court must
consider whether the requisite amount in controversy is established. “[T]he sum
demanded in good faith in the initial pleading shall be deemed to be the amount in
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controversy,” or a district court may find “by a preponderance of the evidence that
the amount in controversy exceeds” $75,000. 28 U.S.C. § 1446(c)(2)(B). “If a
plaintiff makes ‘an unspecified demand for damages in state court, a removing
defendant must prove by a preponderance of the evidence that the amount in
controversy more likely than not exceeds the . . . jurisdictional requirement.’” Roe
v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (quoting Tapscott
v. MS Dealer Serv. Corp., 77 F.3d 1353, 1357 (11th Cir. 1996) overruled on other
grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir. 2000)). If
a plaintiff makes a specified damage demand of less than $75,000 but alleges other
damages in an unspecified amount, the Court may find that the jurisdictional
amount requirement is met if the preponderance of the evidence shows it is more
likely than not that the jurisdictional amount requirement is satisfied. See Bosky
v. Kroger Texas, LP, 288 F.3d 208, 210 (5th Cir. 2002) (holding that “specific
damage estimates that are less than the minimum jurisdictional amount, when
combined with other specified damage claims, can provide sufficient notice that an
action is removable.”) (quoting Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298
(5th Cir. 1999)); see also Carr v. Halloway, 5:09-CV-327, 2010 WL 3937407 at *3
(M.D. Ga. Oct. 1, 2010).
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Where a defendant alleges an unspecified amount in controversy, the district
court may examine the allegations in the complaint and use its “judicial experience
and common sense” to determine if the amount in controversy has been met. Roe,
613 F.3d at 1062. In evaluating the complaint allegations to determine the
jurisdictional amount, the district court is not required to “suspend reality or shelve
common sense in determining whether the face of the complaint establishes the
jurisdictional amount.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 770
(11th Cir. 2010) (quoting Roe v. Michelin N. Am., Inc., 637 F. Supp. 2d 995, 999
(M.D. Ala. 2009)). A court also may make deductions and inferences from the
Complaint allegations. Arrington v. State Farm Ins. Co., 2:14-CV-209, 2014 WL
2961104 at *6 (M.D. Ala. July 1, 2014).
In the end, a court must use its judgment to determine if the allegations,
coupled with the other evidence submitted, show that the jurisdictional amount
requirement is satisfied. See Pretka, 608 F.3d. at 754.
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B.
Analysis
1.
Diversity of the Parties
The parties dispute whether Peck was properly served and whether he was
fraudulently joined. Plaintiff claims that Zayas served Peck on two occasions.
First, he apparently claims that service on Phillip Johnson was sufficient because
Johnson purportedly agreed to accept service on Peck’s behalf. Whether Johnson
agreed to accept service or not is not consequential. Someone who claims to have
a relationship with a prospective defendant cannot agree to accept service of
process on behalf of a defendant. The determinative factor is whether the person
who accepted service was the defendant’s actual agent. Headrick v. Fordham, 268
S.E.2d 753, 755 (Ga. App. 1980) (“Service of process on merely an apparent agent
is not sufficient. It must be made on an actual agent.”). That Johnson and Peck
knew each other is insufficient to show that Johnson was Peck’s actual agent for
purposes of service of process. Zayas was also not at the Advance store to serve
Peck through Johnson. Zayas stated that he was only there to “obtain information
as to where Anthony Peck [was] located.” (Zayas Aff. [1.3] at 4). The evidence
does not show that Zayas believed that Johnson was Peck’s actual agent. Johnson
simply accepted the summons and complaint because Zayas handed it to him.
Delivery of his pleadings to Johnson was not service on Peck.
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Plaintiff next argues that service on Martha Johnson was sufficient to
constitute service on Peck. The Court disagrees. Accepting that Peck resided at
3862 Pleasant Oak Drive, where the Summons and Complaint were delivered to
Martha Johnson, there is no evidence that she lived there, as well. O.C.G.A. § 911-4 requires that process be left with “some person . . . then residing therein.”
O.C.G.A. § 9-11-4(e)(7). Coombs v. Koblasz, 246 Ga. App. 67 (Ga. App. 2000).
(finding that service of process was insufficient where process was served on a
friend who was at defendant’s home to water the plants and collect the mail while
defendant was out of the country).
The Court finds that Peck was not sufficiently served in this action and thus
he is not a party to this case.
2. Amount in Controversy
Plaintiff and Advance are the only parties in this action and their citizenship
is diverse. The Court next considers if the amount in controversy is satisfied. The
Complaint alleges that Plaintiff “slipped and fell on a liquid that had fallen or
accumulated on the surface near the entry” and “suffered immediate, continuing,
and permanent injuries, which causes [sic] extreme and disabling pain.” (Compl.
at ¶¶ 9, 13). He alleges a generic scattershot list of unspecified damages:
A. Personal injuries;
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B. Pain and suffering;
C. Mental anguish;
D. Loss of the capacity for the full enjoyment of life;
E. Impaired ability to labor;
F. Loss of earning capacity;
G. Incidental expenses;
H. Expenses for seeking medical treatment;
I. Future medical expenses; and
J. Permanent injury.
(Id. at ¶ 16). Plaintiff also alleges a claim for “general and special damages” in
unknown amounts. (Id. at ¶ 18(B)). Plaintiff concludes with a demand for “the
costs of litigation” and “further relief that the Court or jury may deem fair, just and
equitable.” (Id. at ¶ 25(C), (D)).
Plaintiff alleges only generalized facts about the cause of his fall. He does
not allege the nature of his injury, the body part or parts affected, the recovery
period required, the method of treatment received, the cost of past treatment, or the
projected cost of future treatment. The Court cannot, based on the Complaint
allegations, determine whether the amount in controversy is satisfied. The
description in the Complaint of Plaintiff’s injuries and cost of medical treatment is
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simply too sparse and inexact. See Hawkins v. Cottrell, Inc., 785 F. Supp. 2d
1361, 1379 (N.D. Ga. 2011) (holding that plaintiff’s description of his injuries in
his complaint as “permanent” was insufficient to enable the court to determine that
the amount in controversy was satisfied); see also Grant v. Wal-Mart Stores E., LP,
5:14-CV-119, 2014 WL 2930835 at *1 (M.D. Ga. June 27, 2014) (finding that the
complaint at issue “generically describe[d] the harm suffered as ‘severe injuries
that required extensive medical treatment’ . . . and that it [was] not facially
apparent from the complaint that the amount in controversy exceed[ed] $75,000.”).
Based on the scant, conclusory assertions of injury and damage, the Court
finds the allegations in the Complaint do not prove, by a preponderance of the
evidence, that the claims more likely than not exceed the jurisdictional amount.
Roe, 613 F.3d at 1061.7
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Defendant argues that Plaintiff’s decision not to stipulate that his damages
are no more than $75,000 demonstrates, by a preponderance of the evidence, that
the amount in controversy clearly exceeds the jurisdictional threshold. It is wellsettled that a Plaintiff’s refusal to stipulate to a particular amount in damages is not
evidence of the amount in controversy. Williams v. Best Buy Co., Inc., 269 F.3d
1316 at 1320 (11th Cir. 2001) (“There are several reasons why a plaintiff would
not so stipulate, and a refusal to stipulate standing alone does not satisfy
[defendant’s] burden of proof on the jurisdictional issue.”); see also Cross v. WalMart Stores, E., LP, 7:11-CV-21 HL, 2011 WL 976414 at *1 (M.D. Ga. Mar. 17,
2011) (Holding that a plaintiff's refusal to stipulate that the total value of his
damages are less than $75,000 is inadequate to prove the amount in controversy).
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III.
CONCLUSION
For the reasons stated above, the Court lacks diversity jurisdiction under
28 U.S.C. § 1441(a), and this action is thus required to be remanded. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand [7] is
GRANTED. The Clerk is DIRECTED to REMAND this action to the Superior
Court of DeKalb County, Georgia.
SO ORDERED this12th day of November, 2014.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
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