Callender v. Wal-Mart Louisiana L L C

Filing 13

MEMORANDUM RULING: Before the Court is a 7 Motion to Remand filed by the plaintiff, Jackie Callender in response to a Notice of Removal filed by the defendant, Wal-Mart Stores Inc, Wal-Mart Louisiana L L C. For the reasons stated above, the plaintiffs 7 Motion to Remand is hereby DENIED. Signed by Magistrate Judge Kathleen Kay on 1/15/2015. (crt,Putch, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
JACKIE CALLENDER

:

DOCKET NO. 2:14-cv-02659

VS.

:

JUDGE MINALDI

WAL-MART LOUISIANA LLC

:

MAGISTRATE JUDGE KAY

MEMORANDUM RULING
Before the Court is a motion to remand filed by the plaintiff, Jackie Callender
(hereinafter “plaintiff”) on October 1, 2014, in response to a Notice of Removal filed by the
defendant, Wal-Mart Stores Inc., Wal-Mart Louisiana LLC (hereinafter “defendant”) on
September 5, 2014. For the reasons given below, the plaintiff’s motion is hereby DENIED.
I. FACTS & PROCEDURAL HISTORY
On September 29, 2013, the plaintiff alleges to have slipped and fallen on a liquid
substance in a dressing room while visiting Wal-Mart Louisiana LLC store number 107 in
Oakdale, Louisiana. As a result of her fall, plaintiff claims she suffered injuries to her back,
neck, and shoulders. Thereafter she filed a petition in state court seeking damages for loss of
enjoyment of life, mental anguish, past and future medical expenses, and past and future pain and
suffering. Doc. 7, att. 3 p. 1. The plaintiff’s petition did not provide a specific amount of
damages.
On December 19, 2013, the defendant submitted numerous interrogatories and requests
for admissions to the plaintiff. Among those interrogatories was one asking: “Does the amount
in dispute exceed the sum of $75,000.00?” Doc. 9, att. 2, p. 2; Id., att. 3, p. 1 On April 8, 2014
the plaintiff responded to the query by stating that “[t]he exact value of this claim is unknown as
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treatment continues. However, we do not anticipate the value of this claim exceeding
$75,000.00.” See Id.
Following these discovery responses the record indicates that the plaintiff had an MRI of
the lumbar spine on April 16, 2014. Doc. 9, att. 5, pp. 1-2. In addition, she returned to the
doctor twice, once on May 13 and again on June 12, 2014. During those visits, a second MRI of
the cervical spine was recommended. Whether this second MRI took place is unclear from the
documentation provided but it is evident that the plaintiff was given a referral for physical
therapy and that cervical and lumbar spine injections were also recommended. See Doc. 9, att. 6.
A summary of the plaintiff’s medical expenses indicates that from September 30, 2013, the day
after the alleged injury, to July 29, 2014, the plaintiff incurred $5,365.60 of medical expenses.
Id. at p. 7.
On August 11, 2014, counsel for the plaintiff sent a settlement demand letter to the
defendant indicating that as a result of the injuries alleged in her complaint, the plaintiff was
…required to undergo extensive physical therapy and conservative treatment
for…nine (9) months. Due to the failure of this treatment, [the treating physician]
has recommended cervical and lumbar injections. Ms. Callendar has indicated her
willingness to pursue all treatment options.
Based on the above, I propose we settle Ms. Callendar’s case for $90,000 plus
specials for a total of $95,365.60 and invite your reasonable counter-offer. Below
are several cases supporting this demand.
...
Doc. 9, att. 4, p. 1. The letter then goes on to list no less than three state court cases in
which Louisiana’s First, Third, and Fourth Circuits have all awarded in excess of
$100,000 for spinal injuries very similar to that alleged by the plaintiff where no surgery
was recommended or performed. Id. (citing Fontenot v. Laperouse 774 So.2d 278 (2000);

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Keller v. City of Plaquemine, 700 So.2d 1285 (1997); Courtney v. Williams, 826 So.2d
594 (2002).
On September 5, 2014, after receipt of this settlement offer, the defendant filed its Notice
of Removal in this court. Following removal, on September 10, 2014, the defendant then
submitted a counter-offer to the plaintiff’s earlier settlement demand letter offering $5,000 for
the resolution of the case. Doc. 7, att. 7, p. 1. Upon receipt of the defendant’s post-removal
counter-offer, the plaintiff claims that it then submitted to the defendant yet another offer of
$72,500.00. Doc. 7, p. 2. The plaintiff filed the instant motion to remand on October 1, 2014.
In its Notice of Removal, the defendant argues that the settlement demand it received on
August 11, 2014 was its “first notice that this case was removable to Federal Court” because it
(1) contained a settlement offer far exceeding the jurisdictional requisite amount of $75,000.00,
(2) indicated that plaintiff suffered injuries to her lower back, including multiple disc protrusions
in both her lumbar and cervical spine, (3) showed that treatment had failed and that she was
required to undergo extensive physical therapy, and finally (4) indicated that cervical and lumbar
epidural steroid injections had been recommended and that the plaintiff would be pursuing all
recommendations made. Doc. 1, p. 4. The defendant claims that all of this, taken together with
the fact that the plaintiff is claiming damages for past and future medical expenses as well as for
loss of enjoyment of life, mental anguish, emotional stress, and past and future pain and suffering
indicates that the amount in controversy is clearly met. Id. Additionally, the defendant directs our
attention to a multitude of Louisiana cases and, notably to those cited by the plaintiff in its
settlement offer, supra, which indicate that similar and even lesser injuries than those alleged
(i.e. those in which only one spinal disc had been injured) have routinely resulted in general
damage awards of at least $50,000. The plaintiff herein, says the defendant, has allegedly

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injured numerous discs in both her cervical and lumbar spine and thus her general damages will
easily meet the jurisdictional requisite of $75,000 and, in fact, will likely exceed it. Doc. 9, pp.
11-12.
In support of remand the plaintiff argues that the statements she provided in her discovery
responses, namely that “the exact value of this claim is unknown” and that “we do not anticipate
the value of this claim to exceed $75,000” are sufficient to show us to a legal certainty that her
claims do not meet the amount required for federal jurisdiction.

Doc. 7, att. 1, pp. 3-4.

Moreover, says the plaintiff, the “other paper” relied on by the defendant (the settlement demand
letter) does not indicate with sufficient certainty that the amount in controversy is met. Indeed,
as a general matter, claims plaintiff, “[i]t is common practice for plaintiffs’ initial offer of
settlement to be higher than the value of the claim, due to the fact that plaintiffs most often
reduce their settlement offers during the negotiation process.” The plaintiff then refers us to two
post-removal settlement offers in which she sought amounts well below the jurisdictional
amount. Id. at p. 5.
Neither party disputes diversity, thus in this case, we are primarily concerned with the
issue whether the amount in controversy provision of 28 USC § 1332 is met. Specifically, and as
an initial matter, however, we must assess whether removal was proper under 28 USC § 1446(b).
II. LAW & 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) (2013). 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) (2013). The diversity provisions of 28 U.S.C. § 1332(a)(1) require complete diversity

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among the parties. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). The removing party bears
the burden of showing that removal was procedurally proper and that federal jurisdiction exists.
See De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).
Generally, a defendant must file a notice of removal within 30 days from the time the
defendant receives an “initial pleading setting forth the claim for relief . . . .” 28 U.S.C.
§ 1446(b)(1). This 30-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). However, when the initial pleadings do not provide
grounds for removal, defendants may remove the action “within 30 days after receipt . . . of an
amended pleading, motion, 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) (2013).
Louisiana law forbids plaintiffs in state courts from pleading a specific numerical value
of damages. Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir.2000) (citing La. Code
Civ. Proc. Art. 893). Therefore, when a case originally filed in a Louisiana state court is removed
to federal court on the basis of diversity, the removing defendant must prove by a preponderance
of the evidence that the amount in controversy exceeds $75,000.00. Id. (citing Lucket v. Delta
Airlines, Inc., 171 F.3d 295, 298 (5th Cir.1999)). A defendant may meet this burden by either:
(1) showing that it is facially apparent that the amount in controversy exceeds $75,000.00, or (2)
setting forth facts in its removal petition that support a finding of the requisite amount in
controversy. Lucket, 171 F.3d at 298.
Even if a defendant meets this burden, remand is still proper if the plaintiff then
demonstrates that it is legally certain that its recovery will not exceed the jurisdictional amount.

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De Aguilar v. Boeing Co., 47 F.3d 1404, 1409 (5th Cir. 1995). Plaintiffs can meet this burden by
filing a pre-removal binding stipulation or affidavit affirmatively renouncing their right to accept
a judgment in excess of $75,000.00. Id. at 1412 (citing In re Shell Oil Co., 970 F.2d 355, 356
(7th Cir.1992) (per curiam).
The amount in controversy is determined on the basis of the record as it exists at the time
of removal. Associacion Nacional de Pescadores v. Dow Quimica de Colombia S.A., 988 F.2d
559, 565 (5th Cir.1993). Consequently, post-removal affidavits or stipulations do not deprive the
district court of jurisdiction and they are not to be considered in support of remand unless, at the
time of removal, the amount in controversy is ambiguous. Gebbia, 233 F.3d at 883.
In considering Louisiana’s rule on pleading the amount of damages, courts have
recognized “the potential for abusive manipulation by plaintiffs, who may plead for damages
below the jurisdictional amount in state court with the knowledge that the claim is actually worth
more, but also with the knowledge that they may be able to evade federal jurisdiction by virtue of
the pleading.” De Aguilar, 47 F.3d at 1410. Thus, a plaintiff’s stipulation that the damages
sought are less than $75,000 does not end the inquiry. Hampton v. Smart Prof’l Photocopy
Corp., 2003 WL 13323 at *2 (E.D. La. 2003).
Taking this precedent into consideration, we must first determine whether the plaintiff’s
settlement demand letter was indeed an “other paper” sufficient to trigger removal of this case,
and if so, whether the defendant has established by a preponderance of the evidence that the
plaintiff’s claim exceeds $75,000. This second inquiry will require us to closely examine the
contents of the letter in question.
In making our determination we find pertinent guidance in the defendant’s reference to
Addo v. Globe Life & Accident Ins. Co., 230 F.3d 759 (5th Cir. 2000) in which the Fifth Circuit

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considered whether a settlement demand letter was an “other paper” under the provision of 28
USC §1446(b). In that case, as in this one, the alleged “other paper” was a letter detailing the
plaintiff’s settlement offer which read in its entirety: “In our telephone conversation of August
21, 1997, it is my understanding that you offered $5,000 to settle the above referenced case. We
counter offer with $250,000. This offer will stand until Friday, September 5, 1997.” Id. at 760 n.
1. Finding that the letter was an “other paper” sufficient to trigger removal, the court stated that
the letter in this case complies with our rule that “other paper” must result from
the voluntary act of a plaintiff which gives the defendant notice of the changed
circumstances which now support federal jurisdiction. Holding that a postcomplaint letter, which is not plainly a sham, may be “other paper” under §
1446(b) is consistent with the purpose of the removal statute to encourage prompt
resort to federal court when a defendant first learns that the plaintiff's demand
exceeds the federal jurisdictional limit.
Addo v. Globe Life & Acc. Ins. Co., 230 F.3d 759, 762 (5th Cir. 2000) (citing S.W.S. Erectors,
Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996)).
Accordingly, at the very least, for a settlement demand letter to constitute “other paper,”
it must first result from a voluntary act of the plaintiff that provides notice to the defendant that
federal jurisdiction now exists where it had not before. Also the demand must not be “a sham”
or indicate “mere posturing” by the plaintiff but must instead be a reasonable and serious offer
that relays an accurate reflection of what he believes the case to be worth. See Russell v. Home
State Cnty. Mut. Ins. Co., 2003 WL 22697179 (E.D. La. 2003); Lee v. Advanced Fresh Concepts
Corp., 76 F. App'x 523 (5th Cir. 2003).
Applying this test to the facts of this case, we find that the settlement demand letter
submitted by the plaintiff was an “other paper” for the purposes of removal under §1446(b).
First, the letter by its very nature as a settlement offer reflects a voluntary act on the plaintiff’s
part to pursue resolution of the case. Second, it is clearly not a “sham.” The letter details the
plaintiffs’ multiple injuries including several disc protrusions in both the lumbar and cervical
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spine. It describes the plaintiff’s failed treatment (“extensive physical therapy” for nine months)
as well as her recommended future treatment (spinal injections) and her “willingness to pursue
all treatment options.” It proposes a settlement offer of $95,365.60, and perhaps most important,
it supports that offer by citing three Louisiana appellate court cases that have approved general
damage awards well in excess of $100,000 for similar spinal injuries. Doc. 9, att. 4, p. 1. In fact,
in one of the cases the plaintiff chose to cite in support of her offer, Fontenot v. Laperouse 774
So.2d 278 (2000), the Louisiana Third Circuit specifically stated that “[f]or similar back injuries
that have not been subject to an operation, we have required an award of at least $100,000.00.”
Id. (citing Fontenot, 774 So. 2d at 285 (citing Thompson v. Stalnaker's Restaurant, Inc., 640
So.2d 733 (1994); Mouton v. Bonnett, 520 So.2d 1145 (1987)) (emphasis added).

Lastly,

enclosed with the letter were medical records evidencing two doctor’s visits, an MRI, and
treatment recommendations all arising after the plaintiff’s initial discovery responses in which
she maintained that the value of her claim was still “unknown.”
We find that the aforementioned circumstances, taken together, accurately reflect the
plaintiff’s belief regarding the true value of her claim and that they were more than sufficient to
notify the defendant of a change in circumstances warranting federal jurisdiction. Moreover, we
find that these circumstances also clearly establish by a preponderance of the evidence that the
plaintiff’s damages will meet the jurisdictional amount required for us to exercise jurisdiction.
Consequently, we conclude that the defendant has met its burden.
It now remains for the plaintiff to show us to a legal certainty that her recovery will not
meet the requisite amount. As noted above, she asserts that her statements in discovery (i.e that
the value of the case is “unknown” due to continuing treatment but that she does not “anticipate”
its value will exceed $75,000.00) are enough to show that her claim will not exceed $75,000.

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We disagree. Regardless of what plaintiff might “anticipate” she has affirmatively represented in
her first settlement offer that the value of her claim exceeds the jurisdictional amount, providing
her previously undisclosed analysis of its value with jurisprudence and documentation delivered
for support. There is no evidence of a pre-removal agreement or stipulation that she would not
accept more than $75,000 and a mere anticipation on her part (stated after removal) does not
satisfy us to a “legal certainty” that the amount in controversy will not be met here.
III. CONCLUSION
For the reasons stated above, the plaintiffs’ motion to remand is hereby DENIED.
THUS DONE AND SIGNED in Chambers this 15th day of January, 2015.

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