Whitehead v. Dollar Tree Stores, Inc. et al
Filing
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MEMORANDUM OPINION AND ORDER: It is ordered that Pla's 6 Motion to Remand is DENIED. Signed by Judge Joseph M. Hood on 8/8/2016. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
BETTY WHITEHEAD,
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Plaintiff,
v.
DOLLAR TREE STORES, INC.,
et al.
Defendants.
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Action No. 5:16-CV-158-JMH
MEMORANDUM OPINION
AND ORDER
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This matter is before the Court on the motion of Plaintiff,
Betty Whitehead, to remand this matter to the Boyle Circuit Court.
[DE 6].
Defendant has responded to Plaintiff’s motion [DE 7], and
Plaintiff has replied in further support of her motion [DE 8],
thus, Plaintiff’s motion is ripe for review.
motion,
response,
and
reply,
and
being
Having reviewed the
otherwise
adequately
advised, the Court will deny Plaintiff’s motion to remand for the
reasons set forth below.
I.
Background
This case arises from an incident that occurred at a Dollar
Tree Store in Danville, Kentucky on or about May 24, 2015.
1].
[DE 1-
Plaintiff, Betty Whitehead, alleges that, on or about that
day, when she was shopping at the Dollar Tree in Danville, an
employee of the store ran over her left foot with a cart full of
merchandise causing injuries to her left foot, ankle, and toe.
Id.
As a result of her alleged injuries, Plaintiff brought suit
against Defendant Dollar Tree Stores, Inc. as well as John Doe,
“Unknown
Employee
of
Dollar
Tree,”
asserting
claims
for
negligence, negligent hiring and/or supervision, and respondeat
superior and seeking damages for “medical expenses, both past and
future, lost wages, both past and future, permanent impairment of
power to earn money, past and future physical pain, suffering and
mental anguish” and costs, attorney’s fees, and pre-judgment and
post-judgment interest.
Id.
Following Kentucky Rule of Civil
Procedure 8.01(2), Plaintiff did not specify the amount of damages
in her Complaint, but rather averred that the amount in controversy
exceeded the minimum jurisdictional limit of the Boyle Circuit
Court.
Id.
After filing its Answer in Boyle Circuit Court [DE 1-7], on
May 24, 2016, Defendant Dollar Tree filed a Notice of Removal to
this Court, alleging federal jurisdiction under 28 U.S.C. § 1332
(diversity of citizenship) “in that there is complete diversity of
citizenship between Plaintiff and Dollar Tree and the amount in
controversy exceeds the sum of $75,000.00, exclusive of interest
and costs.”
[DE 1 at ¶4].
Following Dollar Tree’s removal, on
June 22, 2016, the Court ordered Dollar Tree to show cause why
this matter should not be remanded to Boyle Circuit Court for
failing to make evident that the amount in controversy in this
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action exceeds $75,000. [DE 4]. On June 23, 2016, Plaintiff filed
the instant motion to remand, arguing that Dollar Tree has failed
to establish the amount in controversy and that there is likely a
non-diverse party responsible for Plaintiff’s injuries.
II.
[DE 6].
Standard
The statute authorizing removal, 28 U.S.C. § 1441, provides
that an action is removable only if it initially could have been
brought in federal court. A federal court has original “diversity”
jurisdiction where the suit is between citizens of different states
and the amount in controversy exceeds $75,000, exclusive of costs
and interest.
28 U.S.C. § 1332(a).
Therefore, a defendant
desiring to remove a case from state to federal court has the
burden of establishing the diversity jurisdiction requirements of
an
original
federal
court
controversy requirement.
action,
including
the
amount
in
Chapman v. Houston Welfare Rights Org.,
441 U.S. 600, 612 n. 28 (1979). That burden is not an insubstantial
one.
McKinney v. ICG, LLC, No. 13-cv-12, 2013 WL 1898632, at *1
(E.D. Ky. May 7, 2013).
Where, as here, the complaint seeks an unspecified amount of
damages “that is not self-evidently greater or less than the
federal amount-in-controversy requirement,” the removing defendant
must carry its burden by a preponderance of the evidence.
Gafford
v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir. 1993), abrogated on
other grounds by Hertz Corp v. Friend, 530 U.S. 77 (2010).
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The
preponderance of the evidence test requires defendants to support
their claims of jurisdiction by producing “competent proof” of the
necessary
“jurisdictional
facts.”
160)(internal citations omitted).
Gafford,
997
F.2d
at
“Competent proof” can include
affidavits, documents, or interrogatories.
Ramsey v. Kearns, No.
12-cv-06, 2012 WL 602812, at *1 (E.D. Ky. Feb. 23, 2012)(citing
Gentek Bldg. Prods., Inc. v. Sherwin–Williams Co., 491 F.3d 320,
330 (6th Cir. 2007)(internal citation omitted)).
If the defendant does not produce evidence showing it is more
likely than not that the plaintiffs' claims exceed $75,000, the
case must be remanded to state court.
28 U.S.C. § 1447.
Federal
courts are courts of limited jurisdiction, therefore, any doubts
regarding federal jurisdiction should be construed in favor of
remanding the case to state court.
Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 109 (1941); Walsh v. American Airlines, Inc.,
264 F. Supp. 514, 515 (E.D. Ky. 1967).
III. Discussion
Defendant Dollar Tree removed this case from state court,
therefore, it has the burden of proving that the requirements of
diversity jurisdiction, including the amount in controversy, are
satisfied by a preponderance of the evidence.
McKinney v. ICG,
LLC, 2013 WL 1898632, at *2 (E.D. Ky. May 7, 2013).
In its Motion to Remand, Plaintiff argues that there is likely
a non-diverse defendant, i.e., the Dollar Tree employee who was
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pushing the shopping cart and allegedly responsible, in part, for
her injuries.
However, at this time, according to Plaintiff, she
is unable to ascertain the identity of that individual other than
a potential name of “Etty,” thus, the employee is named as “Unknown
Employee of Dollar Tree.”
[DE 1-1].
Because the citizenship of
defendants sued under fictitious names shall be disregarded in
determining whether an action is removable pursuant to 28 U.S.C.
§ 1441(b), Defendant, “Unknown Employee of Dollar Tree,” must be
disregarded
citizenship.
for
the
purposes
of
determining
diversity
of
For this reason, the Court finds that there is
complete diversity of citizenship here as Plaintiff is a resident
of Danville, Boyle County, Kentucky, and Defendant Dollar Tree has
a principal place of business in Virginia.
Regarding the amount in controversy, Dollar Tree states as
follows in its Notice of Removal, filed on May 24, 2016:
Prior to the filing of her Complaint, Plaintiff’s
counsel conveyed to Dollar Tree’s third party
administrator a settlement demand for $250,000.00. As
a result of the alleged incident, Plaintiff claims
injuries to her left lower extremity and alleges that
she has developed complex regional pain syndrome and
expects to undergo prolonged future medical treatment
with specialists and therapists. Such treatment is
reasonably anticipated to include surgery for partial
amputation of her left lower extremity, pain
management, and rehabilitation. The nature and extent
of such treatment for the alleged condition is
supported by the opinions and findings of Plaintiff’s
physicians as set forth in medical records provided to
Dollar Tree. In support of her settlement demand,
Plaintiff has also asserted that she has suffered
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occupational
injuries.
disability
by
virtue
of
the
alleged
Based upon the foregoing, Dollar Tree has reason to
believe that the amount in controversy exceeds the sum
of $75,000.00, exclusive of interest and costs. (See
Affidavit of Counsel for Dollar Tree, attached as
Exhibit 10).
[DE 1, Notice of Removal, at ¶10].
Plaintiff argues that the amount in controversy has not been
met because, at the time of removal, Dollar Tree understood
Plaintiff’s medical expenses to be $10,200 and that when alleged
injuries are not obviously grievous, a defendant should engage in
discovery on the amount of discovery before removing the case.
[DE 6].
Plaintiff further argues that her settlement demand
letter, offering to settle the matter for $250,000, does not prove
by a preponderance of the evidence that the amount in controversy
requirement has been met.
Id.
While it is true that Plaintiff’s demand letter, alone, does
not prove by a preponderance of the evidence that the amount in
controversy
exceeds
$75,000,
a
settlement
letter
is
relevant
evidence of the amount in controversy if it seems to reflect a
reasonable
estimate
Pinsonneault,
2007
of
WL
the
710131
Plaintiff’s
at
*2
(W.D.
claim.
Ky.
Osborne
v.
2007)(internal
citations omitted); May v. Wal-Mart Stores Inc., 751 F. Supp. 2d
946, 949 (E.D. Ky. 2010).
Here, Plaintiff sent Dollar Tree a settlement letter for
$250,000 [DE 1-10], which appears to the Court to reflect a
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reasonable estimate of Plaintiff’s claim as a result of her injury
at the Dollar Tree, which includes damages for past medical bills
in addition to damages for future medical expenses, lost wages,
impairment of the ability to earn an income, pain, suffering, and
emotional anguish. [DE 1-1 at ¶14]. Most importantly, in addition
to the evidence of the settlement offer, Defendant offers the
Supplemental
Affidavit
of
its
counsel,
which
explains
that
Plaintiff has had her lower leg amputated as a result of her
injuries from the shopping cart as follows:
The medical records confirm that Plaintiff’s injuries
to her left foot resulted in unrelenting and
persistent pain due to the effects of chronic regional
pain syndrome to the extent that Plaintiff chose the
drastic treatment of amputation of her lower limb.
The amputation occurred on May 20, 2016, prior to the
removal of this action from State Court.
[DE 7-1].
While
the
Court
must
consider
whether
the
amount
in
controversy was met at the time of removal, it is permissible
nonetheless for the Court to consider information that may not
have been available to Defendant at the time of removal, including
the information regarding Plaintiff’s limb amputation provided in
the Supplemental Affidavit of Defendant’s counsel [DE 7-1].
See
Holiday Drive-In, LLC v. Liberty Mutual Ins. Co., 2016 WL 868837
at *4 (W.D. Ky. 2016); Puri v. Baugh, 2015 WL 3796346 at *3 (W.D.
Ky. 2015)(citing Holland v. Lowe’s Home Centers, Inc., WL 993959
at *2 (6th Cir. 1999)(“[t]his Court may consider evidence of the
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amount in controversy at the time of removal regardless of whether
that
evidence
was
produced
(or
available)
at
the
time
of
removal.”). Plaintiff’s amputation occurred on May 20, 2016, which
was prior to the removal of this action on May 24, 2016, therefore,
the Court may consider evidence of the amputation submitted through
the Supplemental Affidavit of Defendant’s counsel in determining
the amount in controversy.
In amputation cases where a limb is
lost, as here, there are compelling reasons to believe that the
damages exceed $75,000.
See Burgett v. Troy-Bilt LLC, 2011 WL
4715176 at *4 (E.D. Ky. Oct. 5, 2011).
In sum, the Court finds that Dollar Tree has met its burden
of establishing diversity of citizenship and that Plaintiff’s
claim exceeds the amount in controversy requirement of 28 U.S.C.
§ 1332(a) by a preponderance of evidence, therefore, the Court
must deny Plaintiff’s motion to remand.
IV.
Conclusion
Accordingly, for the reasons set forth above, IT IS HEREBY
ORDERED that Plaintiff’s Motion to Remand [DE 6] is DENIED.
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