Jones v. Wal-Mart Stores, Inc.

Filing 7

ORDER denying 5 motion to remand to state court: The Court finds that Defendants have properly complied with the requirements of 28 U.S.C. § 1446(b)(3) and therefore Plaintiff's motion to remand 5 is DENIED. However, a review of the notice of removal 2 reveals certain flaws in Defendant's jurisdictional allegations. Defendants are ORDERED to file an amended notice of removal on or before October 3, 2012.Signed by Judge G. Patrick Murphy on 9/26/2012. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

PATSY JONES

)
)
Plaintiff,
)
)
vs.
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WAL-MART STORES, INC., d/b/a
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WALMART SUPERCENTER STORE # )
237,
)
Defendant.
)

CIVIL NO. 12-964- GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter comes before the Court on a motion to remand to state court filed by Plaintiff
Patsy Jones (Doc. 5). Plaintiff initially filed this lawsuit on May 4, 2012, in the Circuit Court of
the First Judicial Circuit, Saline County, Illinois (Doc. 2-2). After conducting some discovery,
Defendant Wal-Mart removed the case pursuant to 28 U.S.C. §§ 1332(a) and 1446(b)(3) (Doc. 2).
Plaintiff, in their motion to remand, contends that Defendant should have been able to discern that
Plaintiff’s claims exceeded the $75,000.00 amount in controversy as required by 28 U.S.C. §
1332(a)(1) by reading Plaintiff’s complaint (Doc. 5). Since Defendant did not remove this
case until August 31, 2012, Plaintiff maintains that Defendant’s removal was untimely (Doc. 5).
Defendant contends that it was not able to ascertain whether removal would be proper until, at least
August 3, 2012, when Defendant received discovery responses (Docs. 2, 6). Moreover, Plaintiff
advised Defendant she would not stipulate to seek or enforce a judgment less than $75,000.00 (Doc.
6).

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Plaintiff claims this Court has subject matter jurisdiction over this action pursuant to 28
U.S.C. § 1332, diversity jurisdiction. The exercise of federal subject matter jurisdiction in diversity
requires the parties to a case be completely diverse; which is to say, no plaintiff may be a citizen of
the same state as any defendant, and the amount in controversy exceed $75,000, exclusive of interest
and costs. See 28 U.S.C. § 1332(a)(1); LM Ins. Corp. v. Spaulding Enters. Inc., 533 F.3d 542, 547
(7th Cir. 2008); Driscoll v. Brown & Crouppen, P.C., Civil No. 09-859-GPM, 2009 WL 3770190,
2009 U.S. Dist. LEXIS 105888 at *1 (S.D. Ill. Nov. 10, 2009).
Under 28 U.S.C. § 1446(b)(3)
if the case stated by the initial pleading is not removable, a notice of removal may
be filed within 30 days after receipt by the defendant, through service or otherwise,
of a copy of an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become removable.
28 U.S.C. § 1446(b)(3).
The Court finds that Defendants have properly complied with the requirements of 28
U.S.C. § 1446(b)(3) and therefore Plaintiff’s motion to remand (Doc. 5) is DENIED. In
examining the two claims alleged in Plaintiff’s complaint (Doc. 2-2), the rule of aggregation
is inappropriate. See Hanlon ex. rel. Estate of Hanlon v. XY Tool & Die, Inc., 2004 WL
8838035, *4, 2004 U.S. Dist. LEXIS 6675 (2004). Therefore, Defendant was correct in not
removing this case until receipt of discovery responses and Plaintiff’s refusal to agree to seek
or enforce a judgment less than $75,000.00.
Having denied Plaintiff’s motion to remand, the Court “has an independent duty to
satisfy itself that it has subject-matter jurisdiction[.]” Hammes v. AAMCO Transmissions,
Inc., 33 F.3d 774, 778 (7th Cir. 1994); see also Foster v. Hill, 497 F.3d 695, 696-97 (7th Cir.
2007) (“It is the responsibility of a court to make an independent evaluation of whether
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subject matter jurisdiction exists in every case.”)
Here, a review of Defendant’s notice of removal (Doc. 2) reveals flaws in
Defendant’s jurisdictional allegations. Specifically, Defendant states that “[u]pon
information and belief, Plaintiff Patsy Jones is now and was at the commencement of this
action a citizen of the State of Illinois.” (Doc. 2, ¶ 2). Allegation based upon “information
and belief” are insufficient to establish subject matter jurisdiction. America’s Best Inns, Inc.
v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992) (per curiam). Although it
seems likely Plaintiff will be able to establish jurisdiction by more appropriate allegations,
“subject matter jurisdiction must be a matter of certainty and not of probabilities.” Murphy
v. Schering Corporation, 878 F. Supp. 124, 125-26 (N.D. Ill. 1995). Accordingly, Plaintiff
is ORDERED to file an Amended Notice of Removal on or before October 3, 2012 to
correct the error in Defendant’s pleadings..

IT IS SO ORDERED.
DATED: September 26, 2012
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G. PATRICK MURPHY
United States District Judge

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