Johnson v. Big Lots Stores, Inc.

Filing 10

MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION TO REMAND [DOC. 4]. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CAROLANNE JOHNSON,
Plaintiff,
vs.

Case No. 17-13202

BIG LOTS STORES, INC.,

HON. AVERN COHN

Defendant.
___________________________/
MEMORANDUM AND ORDER
DENYING PLAINTIFF’S MOTION TO REMAND (Doc. 4)1
I. Introduction
This is a tort case. Plaintiff Carolanne Johnson is suing defendant Big Lots
Stores, Inc. (Big Lots) claiming that Big Lots was negligent when an employee struck
Johnson with a cart, injuring her ankle while she was shopping at a Big Lots store.
Before the Court is Johnson’s motion to remand on the grounds that the motion
is untimely and Big Lots waived the right to remove. For the reasons that follow, the
motion is DENIED.
II. Background
On October 27, 2016, Johnson filed a complaint in Wayne County Circuit Court.
Johnson sought damages for “permanent injuries, which injuries have caused her pain,
suffering, disability and mental anguish and will in the future cause to suffer from the

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Although the Court originally scheduled this matter for hearing, upon review of the
parties’ papers, the Court deems these matters appropriate for decision without oral
argument. See Fed. R. Civ. P. 78(b); E.D. Mich. LR 7.1(f)(2).

same.” Johnson plead in excess of $25,000; the jurisdictional threshold.
On February 14, 2017, Big Lots served its First Set of Interrogatories and
Requests for Production of Documents on Johnson. The discovery requests sought
information related to Johnson’s medical expenses, lost wages, and alleged damages.
In response, Johnson identified medical expenses and lost wages in the amount of
$15,570.72. Further, in response to Interrogatory No. 8, in which Big Lots specifically
requested that Johnson “provide an accounting demonstrating the amount of ... alleged
damages.” Johnson responded that they would be “provided as discovery progresses.”
During Johnson’s deposition, Big Lots asked Johnson if there is “a specific dollar
amount of damages” that she was seeking. Johnson’s counsel interrupted, and said
that they “were not prepared to give that today.”
Big Lots eventually filed a motion to compel. The state court granted the motion
and directed Johnson to provide additional discovery responses. Johnson provided
supplemental responses. Again in response to Interrogatory No. 8 regarding damages,
Johnson stated that an accounting of her alleged damages would be “provided as
discovery progresses.” Discovery closed on September 26, 2017 and no further
response was provided.
The case was eventually submitted to Michigan’s case evaluation process under
M.C.R. 2.403 which provides for mandatory case evaluation in tort cases. See M.C.R.
2.403(A)(2). A case evaluation hearing was scheduled for September 26, 2017. The
parties were directed to submit case evaluation summaries by September 12, 2017. Big
Lots submitted a timely summary. Johnson, however, did not submit her case
evaluation summary until September 25, thirteen days late and the day before the
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scheduled evaluation hearing. In her case evaluation summary, Johnson claimed
damages in the amount of $850,000, and further stated that she would seek $975,000
in damages if Big Lots refused to admit liability.
Big Lots participated in the case evaluation proceedings. The panel valued
Johnson’s claim in the amount of $600,000. Big Lots rejected the evaluation.
Four days after receiving Johnson’s case evaluation summary and three days
after the case evaluation proceedings, on September 29, 2017, Big Lots removed the
case to federal court on the grounds of diversity.
III. Legal Standard
A defendant in a civil action brought in state court may remove the action to
federal court, provided that the federal court has original jurisdiction. 28 U.S.C. §
1441(a). The federal court has original diversity jurisdiction when the matter is between
citizens of different states and the amount in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1).
A case shall be removed within 30 days after the receipt by the defendant of
copy of the initial pleading setting forth the claim for relief upon which the action is
based. 28 U.S.C. § 1446(b)(1). However, when removal is not ascertainable from the
original petition, but in the course of state court litigation it becomes apparent that the
case is removable to federal court, the party may file a "notice of removal within 30 days
after receipt by the defendant, through service or otherwise, of a copy of an amended
pleading, motion, order 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).
A case becomes removable if the plaintiff performs a voluntary act which effects a
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change rendering a case subject to removal by the defendant which had not been
removable before the change. McCraw v. Lyons, 863 F. Supp. 430, 433 n.5 (W.D. Ky.
1994) citing DeBry. et.al., v. Transamerica Corporation, 601 F.2d 480, 486-88 (10th Cir.
1979).
IV. Discussion
A.
As an initial matter, the parties do not dispute that they are diverse citizens. Big
Lots is incorporated and has its principal place of business in Ohio and Johnson is a
citizen of Michigan. The parties also do not dispute that Johnson seeks damages in
excess of $75,000. The question is when Big Lots became aware of Johnson’s claimed
damage amount and whether Big Lots waived its right to remove.
B.
Here, Big Lots says that it was unaware of Johnson’s damage amount until it
received the case evaluation summary. Johnson says that Big Lots should have known
her damages exceeded $75,000 after taking the deposition of Dr. Michael Callan and
when it received Johnson’s medical records.
Big Lots has the better view. Contrary to Johnson’s argument, Dr. Callan’s
deposition did not unambiguously demonstrate that the amount in controversy
exceeded $75,000. Even assuming that deposition testimony or medical records could
be considered “papers” for purposes of removal, Dr. Callan did not provide any
testimony related to the value of Johnson’s injuries. As to Johnson’s medical records, it
was not incumbent upon Big Lots to determine that Johnson suffered an injury in excess
of $75,000 when reviewing the medical records.
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Rather, it is clear that Big Lots did not have specific notice that Johnson was
seeking damages in excess of $75,000 until it received Johnson’s case evaluation
summary. Prior to that time, Johnson had only claimed economic damages of
approximately $15,000 and repeatedly said that additional damage information would be
provided. No additional information was provided. The case evaluation summary was
the first time in the record that Johnson marshaled her evidence of damages and
argued for an amount in excess of $75,000.
As Big Lots points out, courts have noted that a case evaluation summary is a
“paper” on which a defendant can rely to support removal. See Tesser v. Provident Life
& Accident Ins. Co., 2011 U.S. Dist. LEXIS 45797, at *2 (E.D. Mich. 2011) (stating, in
dicta, that the “Plaintiff’s case evaluation summary qualifies” as a “paper from which it
may first be ascertained that the case is one which is or has become removable.”). See
also Santos-Tiller v. Krispy Kreme Doughnut Co., 2016 U.S. Dist. LEXIS 112786 (E.D.
Mich. 2016) (six months after complaint was filed plaintiff emailed defendant a
settlement offer of $117,500; defendant’s removal within 30 days thereafter was timely).
In short, the case evaluation summary which Big Lots received on September 25,
2017, was the first “paper” Big Lots received by which it could determine that the case
was removable. Big Lots submitted its Notice of Removal four days later on September
29, 2017. Therefore, Big Lots’ Notice of Removal was timely.
C.
Johnson also argues that Big Lots waived the right to remove because it
participated in the case evaluation proceedings. A defendant may waive his right to
remove an action to federal court by indicating that he has submitted to the jurisdiction
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of the state court, that waiver must be “clear and unequivocal.” McKinnon v. Doctor's
Assocs., Inc., 769 F. Supp. 216, 217 (E.D. Mich. 1991); Queen v. Dobson Power Line
Const. Co., 414 F. Supp. 2d 676, 678-79 (E.D. Ky. 2006) (a “defendant may waive the
right to remove by taking actions in state court, after it is apparent that the case is
removable, that manifest the defendant's intent to have the cased adjudicated in state
court”).
Here, Big Lots did not take any affirmative steps in state court that would waive
its right to removal by virtue of attending the case evaluation hearing. Cases where
waiver has been found generally involve the submission of some type of dispositive
motion or the filing of a cross claim or permissive counterclaim. See Bolivar Sand v.
Allied Equipt., Inc., 631 F. Supp. 171, 173 (W.D. Tenn. 1986) (defendant waived right to
remove by filing a motion for directed verdict). Big Lots did not file a counterclaim or
cross claim and has not submitted a dispositive motion. Case evaluation hearings are
not dispositive. If a party objects to an evaluation, the case proceeds in the normal
fashion. See M.C.R. 2.403(N)(1). Big Lots’ participation in the case evaluation hearing
was down with the intent to preserve the “status quo” of the case, not to dispose of the
matter. See Whitten v. Michelin Ams. Research & Dev. Corp., 2006 U.S. Dist. LEXIS
37984, at *10-11 (actions taken to preserve the “status quo” are not acts that waive a
defendant’s right to removal). As such, Big Lots did not waive its right to remove the
case.
D.
The Court is constrained to note that Johnson submitted her case evaluation
summary late and on the eve of the case evaluation hearing. As Big Lots explains, had
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Johnson timely submitted her case evaluation summary, Big Lots would have had
ample time to inform the panel, which consisted of two attorneys and a former judge, it
would not be participating in the hearing. Faced with damage information on less than
twenty-four (24) hours’ notice before the case evaluation hearing, Big Lots acted
appropriately in participating.
Although the state court discovery deadline has passed, in light of Johnson’s
belated revelation of damages, Big Lots shall advise the Court within ten (10) days of
this order as to whether it requires additional discovery and, if so, specify the discovery
it requires.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: December 5, 2017
Detroit, Michigan

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