Dudley v. Wal-Mart Stores, Inc.
ORDER granting 6 Motion to Remand to State Court; that case is remanded to Circuit Court of Marshall County, Mississippi. Signed by District Judge Michael P. Mills on 09/19/16. (tab)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:16CV118-M-A
WAL-MART STORES, INC.
MEMORANDUM OPINION AND ORDER
This cause comes before the court on the plaintiff Rita Dudley’s motion to remand this
case to the Circuit Court of Marshall County [Doc. 6]. Defendant, Wal-Mart Stores, Inc. has
responded in opposition to the motion, and the court, having considered the memoranda and
submissions of the parties, along with other pertinent authorities, concludes that the motion is
well taken and should be granted.
On January 29, 2016, Plaintiff filed suit in the Circuit Court of Marshall County, seeking
recovery for injuries resulting from being struck by shopping carts that were being transported by
Defendant’s employee using an electric cart machine. Plaintiff seeks $50,000 in damages for
medical expenses, lost wages, pain and suffering, possible permanent impairment, loss of
enjoyment of life, and “all other damages allowed under the state of Tennessee.”1 On June 20,
2016 Defendant Wal-Mart Stores, Inc. (Wal-Mart), removed the case to this Court, asserting
diversity jurisdiction as the basis for removal. At the time of removal, Plaintiff had not stipulated
or submitted an affidavit capping damages at $75,000. On July 11, 2016, Plaintiff filed a motion
Because the action was filed in Mississippi state courts, the Court is treating the use of Tennessee as a
typographical error and interprets the complaint to apply “all other damages allowed under the state of Mississippi.”
to remand, on the basis of lack of subject matter jurisdiction, and more specifically that the
amount in controversy requirement was not met. Additionally, Plaintiff attached a sworn
affidavit to the motion to remand stating that “[t]he ad damnum clause reflects the amount
sought in recovery and, under no circumstances, will I seek nor accept an amount greater than
“Federal courts are courts of limited jurisdiction.” Walker v. Scales, 2014 WL 670216, at
*2, 2014 U.S. Dist. LEXIS 21143, at *4 (N.D. Miss. Feb. 20, 2014)(citing Epps v. BexarMedina-Atascosa Cntys. Water Improvement Dist. No. 1, 665 F. 2d 594, 595 (5th Cir. 1982).
“[D]istrict Courts have original civil jurisdiction of all civil actions where the matter in
controversy exceeds ... $75,000, exclusive of interest and costs, and is between ... citizens of
different States.” 28 U.S.C. § 1332(a)(1). “[A]ny civil action brought in a State court of which
the district courts of the United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.” 28 U.S.C. § 1441(a).
This Court, in Daniels v. CVS Pharmacy Inc., held that “[i]f the amount in controversy is
ambiguous at the time of removal, ‘post-removal affidavits may be considered in determining the
amount in controversy. . .’” Daniels v. CVS Pharmacy Inc., 2015 WL 4774246, at *1 (N.D. Miss.
Aug. 13, 2015)(citing Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.2000))
Further, the Court goes on to emphasize that “the case shall be remanded ‘if at any time before
final judgment it appears that the district court lacks subject matter jurisdiction.’” Daniels v. CVS
Pharmacy Inc., 2015 WL 4774246, at *1 (N.D. Miss. Aug. 13, 2015); citing 28 U.S.C. §
1447(c). Plainly stated, if the Court finds that the post-removal affidavit establishes the amount
in controversy as less than the jurisdictional minimum of $75,000, the court may remand the case
back to state court. “The Fifth Circuit has held that the removal statutes are to be construed
‘strictly against removal and for remand.” Givens v. Food Giant Supermarkets, Inc., 2011 WL
4916385, 2011 U.S. Dist. Lexis 120201, at *3 (N.D.Miss. Oct.17, 2011) (quoting Eastus v. Blue
Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir.1996); Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100, 108–109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)).
Here, the request for damages contained within the complaint is $50,000. However, as
Defendant points out, Plaintiff answered the Request for Admissions prior to removal to indicate
that she would be willing to accept more than $75,000 in damages in the case. This discrepancy
sets up an ambiguous amount in controversy at the time of removal, which would allow the
Court to consider any post-removal affidavits submitted by Plaintiff. After Defendant removed
the case, Plaintiff stipulated in a post-removal affidavit that the damages did not exceed $50,000,
exclusive of interests and cost. Relying on the rule regarding post-removal affidavits in Daniels
and Gebbia, the Court finds that Plaintiff has sufficiently stipulated a recovery cap that is below
the jurisdictional minimum set forth in 28 U.S.C. §1332(a). Therefore, the Court finds that
federal subject matter jurisdiction is lacking. Daniels v. CVS Pharmacy Inc., 2015 WL 4774246,
at *2 (N.D. Miss. Aug. 13, 2015); see also Givens v. Food Giant Supermarkets, Inc., 2011 WL
4916385, 2011 U.S. Dist. Lexis 120201, at *3 (N.D.Miss. Oct.17, 2011)(holding federal
jurisdiction was not present in light of plaintiff’s stipulation of the amount in controversy being
less than $75,000).
Because the amount in controversy is not met for the statutory jurisdictional minimum of
this court, this court lacks the proper jurisdiction to hear this case.
Therefore, Plaintiff’s motion to remand [Doc. 6] is hereby granted and the case is
remanded to the Circuit Court of Marshall County, Mississippi.
IT IS SO ORDERED, this 19th day of September, 2016.
/s/ MICHAEL P. MILLS
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF MISSISSIPPI
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