Simington v. Menards Inc

Filing 37

OPINION AND ORDER: Court DENIES 29 Motion to Remand to State Court. Signed by Chief Judge Philip P Simon on 3/13/2012. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ALINE SIMINGTON,
Plaintiff,
vs.
MENARD, INC.
Defendant.

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Cause No. 2:10 CV 269

OPINION AND ORDER
This matter is before the Court on Plaintiff Aline Simington’s Motion to Remand to State
Court [DE 29]. Simington claims that the amount in controversy is less than $75,000 and so this
court is without jurisdiction to decide the case. Because the amount in controversy is determined
at the time of removal, and at that time there was more than $75,000 at stake, the Motion to
Remand is DENIED.
On July 2, 2010, this case was removed here from the Lake Superior Court [DE 2].
Menard’s, the defendant, removed the case pursuant to 28 U.S.C. § 1441, alleging that the
District Court would have had original jurisdiction under 28 U.S.C. § 1332(a).1 According to the
complaint, Simington claims to have been injured while shopping at Menard’s. The parties are
of diverse citizenship: Plaintiff Simington is a citizen of Indiana, and Menard’s is incorporated in
Wisconsin with its principal place of business in Wisconsin [DE 2 at ¶ 6; DE 8 at ¶ 3]. In its
Notice of Removal, Menard’s contended that the amount in controversy met the jurisdictional

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A district court has subject matter jurisdiction over “all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs and is between
... citizens of different states.” 28 U.S.C. § 1332(a).

threshold, based on the damages Simington sought for potentially permanent injuries [DE 2 at ¶
7]. At the time of removal I had some concern about whether Menard’s had established by a
“reasonable probability” that the amount in controversy exceeded the jurisdictional amount. So I
ordered Simington to respond to Menard’s removal notice [DE 6 at 2-3]. Simington responded
that the amount in controversy exceeded the jurisdictional amount, based on a physician’s
diagnosis that Simington’s injury from her accident at Menard’s was permanent and needed
further surgery [DE 9 at ¶ 3, Exh. A]. Because the amount in controversy was satisfied and the
parties were diverse, the case proceeded in the federal forum.
On January 17, 2012, however, Simington moved to remand the case to state court, based
on information learned at the deposition Dr. Martino, the doctor who had previously diagnosed
Simington with a permanent injury [DE 29]. At the deposition, Dr. Martino testified that while
Simington did have a permanent toe condition, he now believes that the condition was unrelated
to Simington’s accident at Menard’s, and was likely due to an arthritic condition [Id. at ¶ 3]. As
a result of this information, Simington “adjusted” her settlement demand to $30,000 and moved
to remand the case to state court [Id. at ¶ 5, Exh. A]. Menard’s objects to remand, arguing that
post-removal events do not affect federal jurisdiction [DE 30 at ¶¶ 4-7].
Jurisdiction depends “on the amount that was in controversy when the federal suit
began.” Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536 (7th Cir. 2006).

Specifically, the

amount in controversy is “the amount required to satisfy the plaintiff’s demands in full...on the
day the suit was removed.” Oshana v. Coca-Cola Co., 472 F.3d 506, 510-11 (7th Cir. 2006).
“Events occurring subsequent to the institution of suit which reduce the amount recoverable
below the statutory limit do not oust jurisdiction.” St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283, 289-290 (1938). Thus, the question here is whether, at the time of removal, the

controversy exceeded $75,000, because even though “the plaintiff, after removal...reduces the
claim below the requisite amount, this does not deprive the court of jurisdiction.” St. Paul
Mercury, 303 U.S. at 292.
Here, there is no question that at the time of removal, the amount of money put “in
controversy” was, in fact, more than $75,000, and so removal at that time was proper. The postremoval events in discovery are not sufficient to divest this Court of its jurisdiction, because at
the time the case was removed, federal jurisdiction was proper, and there “is no reason to believe
on the day the case was removed that it was legally impossible for [Simington] to recover more
than $75,000.” Oshana, 472 F.3d at 513.
I note that this case differs from many cases where the plaintiff’s post-removal
adjustment to her damages demand threatens to destroy diversity jurisdiction so that the plaintiff
can gain some sort of tactical advantage. See, e.g., Oshana, 472 F.3d 506; BEM I, L.L.C. v.
Anthropologie, Inc., 301 F.3d 548 (7th Cir. 2002); In re Shell Oil Co., 970 F.2d 355 (7th Cir.
1992). Here, there is no indication that anything like that is going on; rather, Simington’s
counsel indicated that he believed it was his “ethical obligation” to apprise the Court of the
changed circumstances because the Court had raised questions about the amount in controversy
during a hearing only a month before Dr. Martino’s deposition [DE 31 at ¶¶ 5-6].
Moreover, Simington’s representations in her response to the Court’s order to clarify
diversity are analogous to a demand for damages in a complaint or an early settlement offer. In
those cases, the Seventh Circuit has held that the fact that those numbers precede discovery does
not diminish their “jurisdictional effect.” Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813,
816 (7th Cir. 2006). In those cases, as here, the initial determination of the amount in
controversy controls, and jurisdiction is proper.

SO ORDERED.
ENTERED: March 13, 2012
s/ Philip P. Simon
Philip P. Simon, Judge
United States District Court