Nelson v. Wal-Mart Louisiana L L C et al

Filing 21

ORDER denying 18 Appeal of Magistrate Judge Decision; affirming Magistrate Judge's 16 Memorandum Ruling. Signed by Judge S Maurice Hicks on 11/9/09. (crt,McDonnell, D)

U N IT E D STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF LOUISIANA M O N R O E DIVISION S H A N N O N NELSON VERSUS W A L -M A R T LOUISIANA LLC E T AL. C IV I L ACTION NO. 09-302 J U D G E HICKS M A G IS T R A T E JUDGE HAYES

M E M O R AN D U M ORDER B e fo re the Court is plaintiff Shannon Nelson's ("Plaintiff") appeal of Magistrate J u d g e Hayes' Memorandum Ruling of April 22, 2009 (Doc. #18) In that ruling, M a g is tra te Judge Hayes denied Plaintiff's Motion to Remand finding that D e fe n d a n ts ' removal was timely. (Doc. #16) The Magistrate Judge found that it was n o t facially apparent from Plaintiff's state court petition that the amount in c o n tro ve rs y was met therefore the 30 day time period for removal was not triggered a t the time the state court petition was filed. The Magistrate Judge also found that it was not clear that this case was removable until the Plaintiff testified at her d e p o s itio n . The Magistrate Judge further found that Defendants' receipt of the w ritte n transcript of the deposition testimony - not the actual live deposition testimony - triggered the thirty day removal period to run and that Defendants' removed the c a s e timely. Plaintiff now appeals this ruling. The Magistrate Judge's ruling is not a recommendation to the district court; ra t h e r , it is an order from the magistrate judge on a non-dispositive matter that re q u ire s the district court to uphold the ruling unless it is clearly erroneous or c o n tra ry to law. See 28 U.S.C. § 636(b)(1)(A); see also Castillo v. Frank, 70 F.3d Page 1 of 4

3 8 2 , 385 (5 th Cir. 1995) and Perales v. Casillas, 950 F.2d 1066, 1070 (5 th Cir. 1992). T h is Court will review the Magistrate Judge's legal conclusions de novo, and will re vie w his factual findings for clear error. See Choate v. State Farm Lloyds, No. 03C V -2 1 1 1 , 2005 W L 1109432, *1 (N.D. Tex. May 5, 2005). Plaintiff files this appeal of the Magistrate Judge's Ruling denying the Motion to Remand. Plaintiff contends that Defendant's removal was not filed timely. Plaintiff first argues that the facts in the original petition in which she alleged "serious injury to her left shoulder" requiring "extensive medical treatment," coupled with her a lle g a tio n that her claims exceeded $50,000 for a jury trial, should have put d e fe n d a n ts on notice that the amount in controversy exceeded $75,000 and that re m o va l was proper at that time. Plaintiff further argues that even if the Court finds th a t it was not apparent that the amount in controversy was met in the original p e titio n , subsequent discovery responses and medical reports should have put D e fe n d a n ts on notice that the case was removable much earlier than when D e fe n d a n ts actually removed the case. T h e Magistrate Judge looked to the removal statute at 28 U.S.C.§1446(b) as a starting point which states as follows: T h e notice of removal of a civil action or proceeding shall be filed within thirty d a ys after the receipt by the defendant, through service or otherwise, of a c o p y of the initial pleading setting forth the claim for relief upon which such a c tio n or proceeding is based ... If the case stated by the initial pleading is not re m o va b le , a notice of removal may be filed within thirty days after receipt by th e defendant, through service or otherwise, of a copy of an amended p le a d in g , motion, order or other paper from which it may first be ascertained th a t the case is one which is or has become removable, except that a case m a y not be removable on the basis of jurisdiction conferred by section 1332 o f this title more than 1 year after commencement of the action. Page 2 of 4

2 8 U.S.C.§1446(b). C o n s id e rin g the removal statute and the facts of this case, this Court finds that the decision of Magistrate Judge Hayes was neither clearly erroneous nor contrary to law. First, the Court agrees with the Magistrate Judge that Plaintiff's generic facts c o n c e rn in g her injury in the original petition did not "affirmatively reveal" that the m a tte r exceeded $75,000. See Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5 th C ir. 1992), and Fontenot v. Granite State Ins. Co., 2008 US Dist. LEXIS 91613 (W .D . L a . Nov.3, 2008). Further, this Court concludes, as did the Magistrate Judge, that

th e discovery and medical documentation provided by Plaintiff to Defendants after th e original petition was filed did not "clearly and unequivocally" indicate that P la in tiff's claims exceeded the amount in controversy. Such discovery and medical d o c u m e n ta tio n did not offer much more information than the original petition. See C h a p m a n , 969 F.2d at 211; Bosky v. Kroger Texas LP, 288 F.3d 208 (5 th Cir. 2002). This Court further agrees with the Magistrate Judge that the thirty day re m o va l period was triggered by the taking of the Plaintiff's deposition in which she re ve a le d she had undergone two surgeries on her shoulder and was continuing to re c e ive medical treatment. Plaintiff argues that the taking of the deposition itself - not th e deposition transcript - triggered the removal time which would make Defendants' re m o va l untimely. This Court, however, agrees with the Magistrate Judge that it was n o t the deposition testimony itself that triggered the removal time to run but the d e p o s itio n transcript which can be considered "other paper" for the purposes of S e c tio n 1446(b). See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5 th Cir. Page 3 of 4

1 9 9 6 ) (finding that the transcript of deposition testimony is "other paper" sufficient to trigger the thirty day removal clock.) The facts show that Plaintiff's deposition was re c e ive d by Defendants on February 19, 2009. The notice of removal was then filed b y Defendants on February 24, 2009, making the removal timely filed. Accordingly, IT IS ORDERED that Plaintiff Shannon Nelson's appeal (Doc. #18) from the M a g is tra te Judge's Memorandum Ruling (Doc. #16) be and is hereby DENIED. IT IS FURTHER ORDERED that the Magistrate Judge's Memorandum Ruling (D o c . #16) be and is hereby AFFIRMED. T H U S DONE AND SIGNED, in Shreveport, Louisiana, on this 9th day of N o ve m b e r, 2009.

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