Brown v. Wal-Mart Stores, Inc.
Filing
7
Memorandum Opinion and Order giving Plaintiff fourteen days from the entry of this Order to file an affidavit with this Court limiting her recovery in this action to $75,000.00, exclusive of interest and costs. The Court will grant the Motion t o Remand 3 if the Plaintiff files such an affidavit. Wal-Mart may serve its proposed Requests for Admissions [6-1] if the Plaintiff fails to file the aforementioned affidavit within the specified time period. Wal-Mart shall file Plaintiff's r esponses with the Court within seven days of its receipt of the responses. Additionally, the disposition of the Motion to Remand is stayed pending the parties' submission of the above mentioned documents. Signed by District Judge Keith Starrett on September 12, 2012 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
CARLA BROWN
PLAINTIFF
VERSUS
CIVIL ACTION NO. 2:12cv125-KS-MTP
WAL-MART STORE, INC.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Plaintiff Carla Brown’s Motion to Remand
[3]. Having considered the submissions of the parties, the record and the applicable
law, the Court finds that the Motion will be granted if the Plaintiff files an affidavit within
fourteen (14) days of the entry of this Order, establishing that she is not seeking more
than $75,000, exclusive of interest and costs, in this lawsuit. If Plaintiff fails to file such
an affidavit, the Defendant will be allowed to serve the requests for admission attached
to its Response [6] to the Motion to Remand regarding the jurisdictional amount.
I. FACTUAL AND PROCEDURAL HISTORY
On June 27, 2012, Carla Brown filed suit in the Circuit Court of Marion County,
Mississippi, alleging injury as a result of tripping over a rug at the front door of the WalMart store located in Columbia, Mississippi. (See Complaint [1-2] at ¶ 5.) On July 20,
2012, Wal-Mart Stores East, L.P. (“Wal-Mart”), incorrectly named in the Complaint as
Wal-Mart Store, Inc.,1 timely filed its Notice of Removal [1] in this Court. Wal-Mart
asserts that diversity jurisdiction exists “over this matter pursuant to the provisions of 28
1
Plaintiff’s Motion to Remand [3] acknowledges that the Defendant was incorrectly
identified in the Complaint and that Wal-Mart Stores East, L.P. owns and operates the
store where the Plaintiff allegedly sustained injury.
U.S.C. § 1332 since the parties are diverse and the amount in controversy exceeds
$75,000.00 exclusive of interest and costs.” (Notice of Removal [1] at ¶ 4.) Wal-Mart
contends that the amount in controversy requirement is met because the Complaint
seeks actual “damages not to exceed $74,999.99, as well as punitive damages . . . .”
(Notice of Removal [1] at ¶ 6.)
On July 24, 2012, Plaintiff filed her Motion to Remand [3]. Plaintiff does not
contest that the parties are of diverse citizenship. (See Motion to Remand [3] at ¶ 3.)
Plaintiff argues that § 1332(a)’s amount in controversy requirement is not met. “Plaintiff
is alleging less than $75,000.00, in TOTAL DAMAGES. The amount in controversy is
less tha[n] $75,000.00 . . . .” (Motion to Remand [3] at ¶ 5.)
On August 10, 2012, Wal-Mart filed its Response [6] to the Motion to Remand.
Wal-Mart concedes that the above-quoted statements in the Motion to Remand make it
appear that remand is appropriate. However, “out of an abundance of caution,” WalMart requests that the Plaintiff be ordered to file “a written stipulation that she does not
now seek, will not in the future seek, will never ask for, and/or will never accept more
than $74,999.99 in total damages (compensatory and punitive combined).” (Wal-Mart’s
Response [6] at ¶ 4.) In the alternative, Wal-Mart asks that the stay of discovery be
lifted so that it may serve requests for admission to the Plaintiff concerning the amount
in controversy. (Wal-Mart’s Response [6] at ¶ 5.)
II. DISCUSSION
A.
Standard of Review
“In general, defendants may remove a civil action if a federal court would have
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had original jurisdiction.” De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995)
(citing 28 U.S.C. § 1441(a)). “The removing party bears the burden of establishing that
federal jurisdiction exists.” Id. (citing Gaitor v. Peninsular Occidental S.S. Co., 287 F.2d
252, 253-54 (5th Cir. 1961)). Since federal courts are of limited jurisdiction and removal
raises significant federalism concerns, the “removal statutes are to be construed strictly
against removal and for remand.” Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100,
106 (5th Cir. 1996) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09,
61 S. Ct. 868, 872, 85 L. Ed. 1214 (1941)). Courts are to consider “jurisdictional facts
as they existed at the time of removal” in ruling on a motion to remand. Cavallini v.
State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995).
In this case, removal was based on the Court’s original jurisdiction under 28
U.S.C. § 1332. (See Notice of Removal [1] at ¶ 4.) The two basic requirements of §
1332 applicable to this action are: 1) that the parties be citizens of different states; and
2) that the amount in controversy, exclusive of interest and costs, exceed the sum or
value of $75,000. Only the amount in controversy requirement is at issue since Plaintiff
has conceded that the parties are of diverse citizenship. (See Motion to Remand [3] at
¶ 3.)
It is well settled that a plaintiff “is the master of his complaint.” State Nat’l Ins.
Co. v. Yates, 391 F.3d 577, 581 (5th Cir. 2004) (citing United Capitol Ins. Co. v. Kapiloff,
155 F.3d 488, 493 (4th Cir. 1998)). Thus, “the sum claimed by the plaintiff controls if
the claim is apparently made in good faith.” St. Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 288, 58 S. Ct. 586, 82 L. Ed. 845 (1938) (citations omitted). “It must
appear to a legal certainty that the claim is really for less than the jurisdictional amount
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to justify dismissal.” Id. at 289 (emphasis added). The “legal certainty test” is restricted
“‘in utility to cases in which the plaintiff himself has placed the requisite jurisdictional
amount in controversy by requesting damages in excess of the jurisdictional amount.’”
De Aguilar, 47 F.3d at 1409 (quoting Garza v. Bettcher Indus., Inc., 752 F. Supp. 753,
755 (E.D. Mich. 1990)). Where the plaintiff’s complaint does not allege a specific
damage amount,2 or where the complaint alleges that damages will not exceed the
federal jurisdictional minimum,3 a different test applies. In such instances federal
jurisdiction will ordinarily lie if “the defendant can show by a preponderance of the
evidence that the amount in controversy is greater than the jurisdictional amount.” De
Aguilar, 47 F.3d at 1412. A sufficient showing is made “if (1) it is apparent from the face
of the petition that the claims are likely to exceed $75,000, or, alternatively, (2) the
defendant sets forth ‘summary judgment type evidence’ of facts in controversy that
support a finding of the requisite amount.” Manguno, 276 F.3d at 723 (citations
omitted).
Plaintiff Carla Brown’s Complaint does not allege a specific amount of damages
above $75,000. Therefore, the Court will determine if Wal-Mart has established “by a
preponderance of the evidence that the amount in controversy” supports an exercise of
diversity jurisdiction. Manguno, 276 F.3d at 723.
B.
Analysis
2
See White v. FCI USA, Inc., 319 F.3d 672, 675 (5th Cir. 2003); Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
3
See In re 1994 Exxon Chem. Fire, 558 F.3d 378, 387 (5th Cir. 2009); De Aguilar,
47 F.3d at 1409-10.
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1.
Whether It Is Facially Apparent from the Face of the Complaint
that the Amount in Controversy Exceeds $75,000
The Complaint’s ad damnum clause provides that Plaintiff seeks “actual
damages in a sum not to exceed $74,999.99, to reasonably compensate her for her
damages, punitive damages and legal interest and cost.” (Complaint [1-2] at p. 5). On
one hand, this clause could be interpreted to mean that Plaintiff’s “actual damages” are
limited to $74,999.99, while her claim for punitive damages is additional and could push
the amount in controversy beyond the jurisdictional limit. “[F]ederal courts in Mississippi
have consistently held that a claim for an unspecified amount of punitive damages is
deemed to exceed the federal jurisdictional minimum.” Sun Life Assur. Co. v. Fairley,
485 F. Supp. 2d 731, 735 (S.D. Miss. 2007) (citing Brasell v. Unumprovident Corp.,
2001 WL 1530342, at *2 (N.D. Miss. Oct. 25, 2001) (citing St. Paul Reins. Co. v.
Greenberg, 134 F.3d 1250, 1255 (5th Cir. 1998); Marcel v. Pool Co., 5 F.3d 81, 84-85
(5th Cir. 1993); Allstate Ins. Co. v. Hilbun, 692 F. Supp. 698, 701 (S.D. Miss. 1988)).
On the other hand, the ad damnum clause could be interpreted to mean that
Plaintiff’s entire damage claim (including actual and punitive damages) is limited to
$74,999.99. First, it cannot be considered a coincidence that diversity jurisdiction exists
“where the matter in controversy exceeds the sum or value of $75,000,”4 and the
Complaint lists “a sum not to exceed $74,999.99 . . . .” (Complaint [1-2] at p. 5.) Logic
dictates that the Plaintiff was attempting to avoid removal to federal court by the
inclusion of this language in the Complaint. Second, notwithstanding Plaintiff’s
conclusory allegations of “reckless disregard” and “gross negligence”, the fact allegation
4
28 U.S.C. § 1332(a).
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at the center of the Complaint–that Plaintiff tripped over a rug at a Wal-Mart store–does
not appear to support an award of punitive damages under Mississippi law. Punitive
damages are only appropriate where the plaintiff proves “by clear and convincing
evidence that the defendant against whom punitive damages are sought acted with
actual malice, gross negligence which evidences a willful, wanton or reckless disregard
for the safety of others, or committed actual fraud.” Miss. Code Ann. § 11-1-65(1)(a).
“Any ambiguities are construed against removal because the removal statute
should be strictly construed in favor of remand.” Manguno, 276 F.3d at 723 (citing
Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)). The ambiguous
nature of the ad damnum clause precludes the Court from holding that it is facially
apparent from the Complaint that the Plaintiff’s claims are likely to exceed $75,000.
2.
Whether Wal-Mart Has Presented Any Summary Judgment
Type Evidence of Facts in Controversy that Support a Finding
of the Requisite Amount
Wal-Mart has not presented any summary judgment type evidence in support of
the Court’s exercise of federal diversity jurisdiction. Instead, Wal-Mart requests “out of
an abundance of caution” that the Plaintiff be ordered to file a written stipulation
establishing that the amount in controversy is less than $75,000. (See Wal-Mart’s
Response [6] at ¶ 4.) Wal-Mart alternatively asks for the stay of discovery to be lifted so
that it may serve requests for admission regarding the amount in controversy. (See
Wal-Mart’s Response [6] at ¶ 5.)
The Court finds that Wal-Mart’s position has merit. The United States Court of
Appeals for the Fifth Circuit has held that if “the facially apparent test is not met, the
district court can then require parties to submit summary-judgment-type evidence,
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relevant to the amount in controversy at the time of removal.” Allen v. R & H Oil & Gas
Co., 63 F.3d 1326, 1336 (5th Cir. 1995). Further, the Western Division of this Court has
allowed plaintiffs to submit affidavits establishing that the amount in controversy did not
exceed $75,000 where the facially apparent test was not met. See Boyd v. Dolgencorp,
Inc., No. 5:12cv48, 2012 WL 3779952, at *3-4 (S.D. Miss. Aug. 31, 2012); Davis v.
Office Max, No. 5:11cv111, 2011 WL 5983396, at *3, 5 (S.D. Miss. Nov. 29, 2011);
Haley v. Ford Motor Co., 398 F. Supp. 2d 522, 526, 528 (S.D. Miss. 2005).5 As Judge
Bramlette explained in Davis:
Even though Office Max has failed to meet its burden, that failure is
mostly a consequence of the unavailability of necessary evidence, such as
the amount of Davis’s medical bills and lost wages. The Court finds that it
would be premature to remand the case based on the insufficiency of this
evidence because should it later come to light that Davis’s damages do
exceed this Court’s jurisdictional minimum then the parties will be right back
w[h]ere they started.
2011 WL 598396, at *4.
In this case, Wal-Mart’s inability to show that the amount in controversy exceeds
$75,000 is due to the Complaint’s ambiguous ad damnum clause and the stay of
discovery entered as a result of Plaintiff’s Motion to Remand [3]. (See Order [5]). An
affidavit from the Plaintiff establishing that she does not seek more than $75,000 would
preclude the necessity of any jurisdictional discovery and clarify Plaintiff’s ambiguous
damage request. Although a post-removal affidavit cannot be used to change a
plaintiff’s original damage claim (since jurisdictional facts must be weighed at the time of
5
See also 14AA Charles Alan Wright et al., Federal Practice and Procedure §
3702.1 (4th ed.) (“The federal court . . . can insist on a binding affidavit or stipulation
that the plaintiff will continue to claim less than the jurisdictional amount as a precondition for remanding the case to state court.”).
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removal), such an affidavit can “clarify a petition that previously left the jurisdictional
question ambiguous.” Asociacion Nacional de Pescadores a Pequena Escala O
Artesanales de Colombia (ANPAC) v. Dow Quimica de Colombia S.A., 988 F.2d 559,
565 (5th Cir. 1993), abrogated on other grounds, Marathon Oil Co. v. A.G. Ruhrgas, 145
F.3d 211 (5th Cir. 1998).6
The Court takes note that the Motion to Remand states the Plaintiff is seeking
“less than $75,000.00, in TOTAL DAMAGES.” (Motion to Remand [3] at ¶ 5.) However,
statements of counsel do not constitute competent summary evidence. See Roberts v.
Walthall County General Hosp., 96 F. Supp. 2d 559, 561 (S.D. Miss. 2000) (“To defend
against a proper summary judgment motion, one may not rely on mere denial of
material facts nor on unsworn allegations in the pleadings or arguments and assertions
in briefs or legal memoranda.”), aff’d, 240 F.3d 1075 (5th Cir. 2000). A stipulation
signed by the Plaintiff, and not her counsel, regarding the amount in controversy would
constitute competent evidence and should resolve any question that might arise as to
the binding effect of the stipulation in subsequent proceedings. Cf. Boyd, 2012 WL
3779952, at *3 (finding that an affidavit executed by the plaintiff’s counsel could not bind
the plaintiff, “who can circumvent the affidavit’s intended effect by finding another
attorney to amend the complaint”).
In light of the premises set forth above, the Court finds that it will grant the Motion
6
Accord Hughes v. Safeco Ins. Co. of Ill., No. 3:11cv200, 2011 WL 8198662, at *1
(S.D. Miss. June 14, 2011) (considering a post-removal affidavit in determining the
amount in controversy under § 1332(a)); Adams v. Williams, No. 2:09cv52, 2009 WL
1585972, at *3 (S.D. Miss. June 4, 2009) (same); Blaylock v. Mutual of N.Y. Life Ins.
Co., 228 F. Supp. 2d 778, 785-86 (S.D. Miss. 2002) (same).
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to Remand [3] if the Plaintiff files an affidavit with this Court within fourteen (14) days of
the entry of this Order establishing that the amount in controversy does not exceed
$75,000. Plaintiff’s affidavit, to be effective, must state without qualifiers or equivocation
that she is not seeking an amount greater than $75,000, exclusive of interest and costs;
that she will not amend her complaint to seek damages in excess of $75,000, exclusive
of interest and costs;7 and, that under no circumstances will she accept an amount
greater than $75,000, exclusive of interest and costs, for damages of any kind as a
result of the circumstances alleged in the Complaint [1-2]. Wal-Mart may serve its
proposed Requests for Admission [6-1] to the Plaintiff if she fails to file such an affidavit
within the aforementioned time frame. Within seven (7) days of Wal-Mart’s receipt of
Plaintiff’s responses to the admission requests, Wal-Mart shall file Plaintiff’s responses
with the Court. The Court will then consider whether or not it requires any additional
evidence from the parties to determine if § 1332(a)’s amount in controversy requirement
is met.
III. CONCLUSION
It is not facially apparent from Plaintiff’s Complaint that the amount in controversy
exceeds $75,000, exclusive of interest of costs. Further, the Court has not been
presented with any summary judgment type evidence regarding whether the value of
Plaintiff’s claims supports an exercise of diversity jurisdiction under 28 U.S.C. § 1332.
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“The Court presumes that the state trial judge would prohibit such an amendment
as it would be allowing the Plaintiff to perpetrate a fraud on this Court.” Lee v. State
Farm Mut. Auto. Ins. Co., 360 F. Supp. 2d 825, 833 (S.D. Miss. 2005). Nonetheless,
Wal-Mart may again seek removal from state court if the Plaintiff later amends her
Complaint to seek more than $75,000. See Tedford v. Warner-Lambert Co., 327 F.3d
423, 428-29 (5th Cir. 2003).
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Accordingly,
IT IS ORDERED AND ADJUDGED that the Plaintiff has fourteen (14) days from
the entry of this Order to file an affidavit with this Court limiting her recovery in this
action to $75,000, exclusive of interest and costs. The Court will grant the Motion to
Remand [3] if the Plaintiff files such an affidavit.
IT IS FURTHER ORDERED AND ADJUDGED that Wal-Mart may serve its
proposed Requests for Admissions [6-1] if the Plaintiff fails to file the aforementioned
affidavit within the specified time period. Wal-Mart shall file Plaintiff’s responses with
the Court within seven (7) days of its receipt of the responses.
IT IS FURTHER ORDERED AND ADJUDGED that the disposition of the Motion
to Remand [3] is stayed pending the parties’ submission of the aforementioned
documents.
SO ORDERED AND ADJUDGED this the 12th day of September, 2012.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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