Kingham v. Target Corp of Minnesota

Filing 10

MEMORANDUM RULING denying 5 Motion to Remand. Signed by Magistrate Judge Kathleen Kay on 1/11/2013. (crt,FinnSld, P)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
JADE KINGHAM AND DEREK
KINGHAM, HUSBAND AND WIFE
VERSUS
TARGET CORP. OF MINNESOTA

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CIVIL ACTION NO. 2:12-CV-685
JUDGE MINALDI
MAGISTRATE JUDGE KAY

MEMORANDUM RULING
Before the court is plaintiffs’ Motion to Remand. Doc. 5. For the reasons that follow,
the motion is DENIED.
Background
Jade Kingham and her husband, Derek Kingham, (“plaintiffs”) filed the instant action in
the Fourteenth Judicial District Court, Calcasieu Parish, Louisiana on February 24, 2011. Target
Corporation of Minnesota (“Target”) is the only named defendant. The petition seeks recovery
on behalf of the couple for damages allegedly sustained when Jade Kingham slipped and fell in a
Target store on March 16, 2010. Doc. 1, Att. 2.
Target removed the suit to this court on March 16, 2012. Doc. 1. The Notice of Removal
asserts that this court has subject matter jurisdiction on the basis of diversity. Doc. 1, p. 6.
Target submits that the requirements of diversity jurisdiction are satisfied because the judicial
amount in controversy exceeds $75,000 and there exists complete diversity of citizenship
between the parties. Doc. 1, pp. 2-6.

Plaintiffs have not disputed that the judicial amount in

controversy exceeds $75,000 nor have they disputed that complete diversity exists.
Plaintiffs ask the court to remand the action pursuant to 28 U.S.C. § 1446(b) on the
grounds that Target failed to timely file its Notice of Removal with this court. Doc. 6, p. 2.
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They argue that Target had only thirty days from receipt of the initial petition to remove the case
to federal court because it was “facially apparent” from the state court petition that the claim for
damages exceeded $75,000. Doc. 6, pp. 2-3. In the alternative, plaintiffs argue that Target was
required to remove within thirty days after plaintiffs responded to Target’s interrogatories on
June 15, 2011. Doc. 6, p. 3.
Target responds that the case was not removable at the time suit was filed because there
was no indication that the $75,000 judicial amount in controversy was satisfied from the face of
the petition. Doc. 8, pp. 8-10. They submit that the judicial amount in controversy was
ambiguous because plaintiffs’ state court petition stipulated that damages were less than $75,000.
Doc. 8, pp. 6-8. Moreover, Target argues that plaintiffs’ interrogatory answers were incomplete
and ambiguous as to the nature and duration of Mrs. Kingham’s alleged injuries. Doc. 8, pp. 1011. Target alleges that they could not ascertain that the plaintiffs were seeking in excess of the
jurisdictional amount until the deposition of plaintiff Jade Kingham was taken on March 9, 2012.
Doc. 8, pp. 11-16.
Law and Analysis
Any civil action brought in a State court of which the district courts have original
jurisdiction may be removed to the proper district court. 28 U.S.C. § 1441(a). District courts
have original jurisdiction over all civil actions where the amount in controversy exceeds
$75,000, exclusive of interest and costs, and is between citizens of different states. 28 U.S.C. §
1332(a)(1).

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The parties do not dispute that the amount in controversy and diversity of citizenship
requirements are met.1 Rather, they disagree as to whether Target failed to timely remove the
action in accordance with the requirements of 28 U.S.C. § 1446(b). Doc. 6.
A. Initial Pleading
Generally, a defendant must file a notice of removal must be filed within thirty days from
the time the defendant receives an “initial pleading setting forth the claim for relief . . . .” 28
U.S.C. § 1446(b)(1). This thirty day period, however, “starts to run from defendant’s receipt of
the initial pleading only when that pleading affirmatively reveals on its face that the pleading is
seeking damages in excess of the jurisdictional amount of the federal court.” Chapman v.
Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992) (emphasis added).
Plaintiffs argue that Target failed to timely remove the case from state court to federal
court within thirty days from service of the petition. They contend that it is “facially apparent”
from the face of the state court petition that the amount in controversy requirement was satisfied.
Doc. 6, pp. 2-3. Plaintiffs point to the nine categories of damages for which they seek recovery
in their state court petition. Moreover, they point to the holding and analysis of Lucket v. Delta
Airlines, 171 F.3d 295 (5th Cir. 1999), in support of their assertion that it is relatively easy for a
petition to satisfy the “facially apparent” standard. Doc. 6, pp. 2-3.
Plaintiffs apply the wrong standard. The “facially apparent” standard applies to the
burden of proof required of a defendant in order to remove a case to federal court. Gebbia v.

1

Despite the concurrence of the parties that the requirements of diversity jurisdiction are satisfied, this court is
tasked with conducting its own review sua sponte. See e.g. Chaisson v. Karl Storz Endoscopy-America, Inc., 68
F.3d 472 (5th Cir. 1995). The court finds, however, that Target’s Notice of Removal demonstrates by a
preponderance of the evidence that the judicial amount in controversy exceeds $75,000. See Lucket v. Delta
Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). Moreover, the court agrees with the parties that the parties are
complete diverse in citizenship. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). Plaintiffs are domiciled in
Louisiana. Doc. 1, Att. 2, p. 4. Target is incorporated in the State of Minnesota and maintains its principal place of
business in Minnesota as well. Doc. 1, p. 2.

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Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000); Lucket v. Delta Airlines, Inc., 171 F.3d
295, 298 (5th Cir. 1999). As in this case, when the question is one of timeliness, the appropriate
standard is whether the pleading “affirmatively reveals on its face” that the amount in
controversy is in excess of the jurisdictional amount. Chapman, 969 F.2d at 163; Bosky v.
Kroger Texas, LP, 288 F.3d 208, 210 (5th Cir. 2002).
The Fifth Circuit has adopted a “bright line rule” such that if a plaintiff “wishes the
thirty-day time period to run from the defendant’s receipt of the initial pleading,” then the
plaintiff must include “in the initial pleading a specific allegation that damages are in excess of
the jurisdictional amount.” Chapman, 969 F.2d at 163. The thirty day period does not begin to
run because a defendant has subjective knowledge that he may be able to meet the requisite
burden of proof to invoke the removal jurisdiction of a federal court and a defendant is not
obligated to exercise due diligence to ascertain the judicial amount in controversy. Id.
Under the appropriate standard plaintiffs’ state court petition fails to affirmatively reveal
on its face that the jurisdictional amount was satisfied. Plaintiffs ignore paragraph 10 of their
petition which states “Plaintiffs assert that given the extent and degree of injuries to JADE
KINGHAM, their damages do not exceed Seventy Five Thousand and No/100 ($75,000.00)
Dollars.” Doc. 1, Att. 2, p. 6. Comments by counsel in the deposition of Mrs. Kingham indicate
that these stipulations were intended to be taken at face value. See Doc. 1, Att. 4, p. 10, lines 2325. Plaintiffs ask Target to ignore the plain language of paragraph 10 and nevertheless remove
the case on the basis that the petition alleges nine categories of damages in unspecified amounts.
Plaintiffs cannot benefit from tugging Target in opposite directions. See Doc. 1, Att. 4, p.
10, lines 12-14, 23-25. Removal is not a guessing game. Target is entitled to a reasonable
degree of certainty with respect to the judicial amount in controversy before removing the case to

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this court. Plaintiffs’ standard encourages defendants to prematurely remove cases from state
court even when they are unsure whether they could meet their burden of proof to invoke federal
jurisdiction just to be certain they are not deprived of a federal forum. The Fifth Circuit has
expressly rejected plaintiffs’ approach. Chapman, 969 F.2d at 163.
B. Other Paper
When the initial pleadings do not provide grounds for removal, defendants may remove
the action “within 30 days after receipt” of any “other paper from which it may first ascertained
that the case is . . . removable.” 28 U.S.C. § 1446(b)(3). The parties disagree as to which “other
paper” triggered the thirty day removal period in this case.
Target contends that it could not ascertain that the case was removable until the
deposition of plaintiff Jade Kingham was taken on March 9, 2012. It submits that removal was
timely because the case was removed to this court on March 16, 2012, which was within the
thirty day time limit.
The Fifth Circuit has held that “a transcript of [a defendant’s] deposition testimony is
‘other paper.’” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996). The receipt
of the written transcript triggers the running of section 1446(b)’s thirty day removal period. Id.
Target’s receipt of a transcript of Jade Kingham’s deposition testimony presumptively
triggered a thirty day time period in which Target could remove the case to federal court. Target
submits that the deposition testimony was critical in helping it ascertain that the case was
removable because it shed light on the judicial amount in controversy in several respects. First,
the testimony provided “clarification regarding the conflicting petition allegations” previously
discussed. Doc. 8, p. 16. Second, it elicited “further answers relating to plaintiffs’ incomplete
interrogatory responses” regarding the scope of her damages. Doc. 8, p. 16. Third, and perhaps

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most importantly, counsel for the plaintiffs refused to allow her client to answer questions
regarding the amount in controversy. Doc. 8, p. 16. Unless plaintiffs can demonstrate that
Target previously came into possession some other “other paper” from which it could have
ascertained the case was removable, then Target timely removed the case to this court.
Plaintiffs argue that their answers to interrogatories on June 15, 2011, triggered a thirty
day period wherein Target was required to remove the case. Doc. 6, p. 3. They contend that
their answers to interrogatories number 17 and 18 propounded by Target should have put Target
on notice that the damages were in excess of the $75,000 jurisdictional amount.2 Doc. 6, p. 3.
This argument is unpersuasive as the information contained in plaintiffs’ answers to the Targets
interrogatories does not indicate in an “unequivocally clear and certain” manner that the case is
removable.
Answers to interrogatories may satisfy the “other paper” requirement. Chapman, 969
F.2d at 164. This thirty day time period begins to run only if the information contained within
the interrogatory answers allegedly supporting removal is “unequivocally clear and certain.”
Bosky, 288 F.3d at 211.
Target’s Interrogatory No. 17 requested plaintiffs to list any amounts being claimed for
lost past and future earnings and earning capacity. Doc. 1, Att. 3, p. 2. Plaintiff responded,
“$2,000 to $3,000 per month.” Doc. 1, Att. 3, p. 7. Target’s Interrogatory No. 18 also requested
that plaintiffs specify the amount of damages being sought for each item or category of damages.
Doc. 1, Att. 3, p. 2. Plaintiffs responded, “Petitioner has not completed treatment and/or had a
definitive diagnosis in order to accurately respond.” Doc. 1, Att. 3, p. 7.

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 Plaintiff identifies the interrogatory as No. 8 rather than No. 18. However, this appears to be a typographical error.    

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Plaintiffs’ state court petition alleged that Mrs. Kingham’s alleged accident occurred on
March 16, 2010. Doc. 1, Att. 2, p. 5. When plaintiffs answered Target’s interrogatories on June
15, 2011, Mrs. Kingham suffered from her alleged injuries for over fifteen months.

By

plaintiffs’ own figures, Target was only on notice that the plaintiff was seeking between $30,000
and $45,000, plus some unknown additional amounts.3 The interrogatory answers failed to
indicate that these additional amounts would exceed, at minimum, $30,000.
The undersigned finds that the interrogatory answers supplied by plaintiffs did not trigger
a thirty day period within which Target was given to timely remove the case. See Muse v.
Lowe's Home Centers, Inc., 2:11-CV-01481, 2011 WL 5025326, *3 (E.D. La. Oct. 21, 2011); see
also Ford v. Shoney's Restaurants, Inc., 900 F.Supp. 57, 59 (E.D. Tex. 1995). Rather the thirty
day time period was not triggered until received the transcript of Jade Kingham’s deposition
testimony—the first “other paper” from which Target could ascertain that the case was
removable.
Conclusion
This court has jurisdiction over the case in accordance with 28 U.S.C. § 1332(a), and the
Notice of Removal was not untimely pursuant to 28 U.S.C. § 1446(b). The initial petition failed
to affirmatively reveal on its face that the amount in controversy exceeded the jurisdictional
requirement, nor was it unequivocally clear and certain from plaintiffs’ interrogatory answers
failed that the jurisdictional requirement was satisfied. Plaintiffs’ timely removed the case when
they acted within thirty days from the receipt of Jade Kingham’s deposition transcript. Thus,
plaintiffs’ Motion to Remand is DENIED.

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This range is plaintiffs’ $2,000 to $3,000 range multiplied by fifteen (15) months.

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THUS DONE this 11th day of January, 2013.

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