Oatis v. Wal-Mart Stores, Inc.

Filing 17

ORDER denying Plaintiff's 5 Motion to Remand to State Court. Signed by District Judge Keith Starrett on October 29, 2013 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
FLORA OATIS

PLAINTIFF

V.

CIVIL ACTION NO. 2:13-CV-162-KS-MTP

WAL-MART STORES, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
For all of the reasons stated below, the Court denies Plaintiff’s Motion to
Remand [5].
Plaintiff provided three arguments in favor of remand. Two concern this Court’s
subject matter jurisdiction, and the third relates to the procedural sufficiency of
Defendant’s removal. This Court has removal jurisdiction of all cases in which it has
original jurisdiction, 28 U.S.C. § 1441(a), and it has “original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs, and is between . . . citizens of different states.” 28 U.S.C. §
1332(a). Defendant – as the removing party – has the burden of “showing that federal
jurisdiction exists and that removal was proper.” Barker v. Hercules Offshore, 706 F.3d
680, 684-85 (5th Cir. 2013). Because 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).

A.

Complete Diversity
Plaintiff initially argued that Defendant’s Notice of Removal [1] is deficient

because it does not contain sufficient information about the citizenship of various WalMart entities related to Defendant, Wal-Mart Stores East, L.P.1 Defendant has since
filed an Amended Notice of Removal [16], which provides sufficient information to
determine whether the Court has diversity jurisdiction.
The citizenship of a limited liability company, limited partnership, or other
unincorporated association “is determined by the citizenship of all of its members.”
Arena v. Graybar Elec. Co., 669 F.3d 214, 224 (5th Cir. 2012). For diversity jurisdiction,
the parties must be completely diverse. Harvey v. Grey Wolf Drilling Co., 542 F.3d
1077, 1079 (5th Cir. 2008). “Complete diversity requires that all persons on one side
of the controversy be citizens of different states than all persons on the other side.” Id.
When determining whether the parties are completely diverse, the Court looks at their
citizenship at the time the Complaint was filed. Grupo Dataflux v. Atlas Global Group,
L.P., 541 U.S. 567, 571, 124 S. Ct. 1920, 158 L. Ed. 2d 866 (2004).2

1

According to the docket and the heading on each pleading in this case, WalMart Stores, Inc. is the Defendant. The parties agree, though, that Wal-Mart Stores
East, L.P. should have been named as the Defendant, and they have briefed the
present motion as if it were the Defendant. The Court will address the current
motion as if Wal-Mart Stores East, L.P. were the named Defendant, but the parties
should seek leave to substitute the proper party.
2

Plaintiff also argued that Defendant’s Notice of Removal [1] was deficient
because Defendant failed to allege its citizenship at both the time the Complaint
was filed and the time of removal. Defendant corrected this purported deficiency in
its Amended Notice of Removal [16].
2

Defendant, Wal-Mart Stores East, L.P., is a limited partnership. Its sole limited
partner is WSE Investment, LLC, and its sole general partner is WSE Management,
LLC. Both limited liability companies have a single member: Wal-Mart Stores East,
LLC. Wal-Mart Stores East has a single member: Wal-Mart Stores, Inc., which was
organized under Delaware law and maintains its principal place of business in
Bentonville, Arkansas.
Therefore, Defendant, Wal-Mart Stores East, L.P., is a citizen of Delaware and
Arkansas. Plaintiff is a citizen of Mississippi. The parties are completely diverse.
B.

Amount in Controversy
Next, Plaintiff argues that the amount in controversy does not exceed $75,000,

exclusive of interest and costs. See 28 U.S.C. § 1332(a). Where the plaintiff does not
allege a specific amount of damages, as is the case here, “[t]he removing defendant
must prove by a preponderance of the evidence that the amount in controversy equals
or exceeds the jurisdictional amount.” De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.
1993). There are two ways a defendant can meet this burden: “(1) by demonstrating
that it is facially apparent that the claims are likely above $75,000, or (2) by setting
forth facts in controversy . . . that support a finding of the requisite amount.” Simon
v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999) (punctuation omitted).
“[O]nce a defendant is able to show that the amount in controversy exceeds the
jurisdictional amount, removal is proper, provided plaintiff has not shown that it is
legally certain that his recovery will not exceed the amount stated.” White v. FCI USA,
Inc., 319 F.3d 672, 676 (5th Cir. 2003).
3

Plaintiff alleged that she suffered “severe permanent disabling injuries, both
physical and mental,” and that she incurred “reasonable and necessary medical bills.”
She also alleged that she suffered and will continue to suffer “severe physical and
emotional pain,” “loss of enjoyment of life, and mental anguish . . . .” Finally, she
requested an unspecified amount of punitive damages and attorney’s fees. Based on
Plaintiff’s allegations of permanently disabling injuries and severe past and future
pain, and her demands for unspecified amounts of emotional damages, punitive
damages, and attorney’s fees, the Court finds that it is facially apparent that the
amount in controversy exceeds $75,000.00.3
To rebut Defendant’s showing, Plaintiff must demonstrate that it is “legally
certain” she will not recover more than the jurisdictional minimum. White, 319 F.3d
at 676. She presented a letter [6-1] from her attorney to Defendant’s counsel, dated
December 17, 2010. Therein, counsel claimed that Plaintiff had incurred $3,509.00 in
medical expenses, and he demanded $18,509.00 to settle Plaintiff’s claims. While this
may demonstrate that it is likely Plaintiff will recover less than $75,000, it does not
demonstrate that it is “legally certain” she will do so. If Plaintiff is able to prove what

3

See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000); Sun
Life Assur. Co. v. Fairley, 485 F. Supp. 2d 731, 735 (S.D. Miss. 2007); Allstate Ins.
Co. v. Hilbun, 692 F. Supp. 698, 701 (S.D. Miss. 1988); Baglan v. Kemper Ins. Co.,
No. 2:12-CV-53-GHD-SAA, 2012 U.S. Dist. LEXIS 154790, at *6-*7 (N.D. Miss. Oct.
29, 2012); Credit Acceptance Corp. v. Fortenberry, No. 2:10-CV-251-KS-MTP, 2012
U.S. Dist. LEXIS 105574, at *6 (S.D. Miss. July 30, 2012); Williams v. Ford Motor
Co., No. 3:11-CV-110-NBB-SAA, 2012 U.S. Dist. LEXIS 100986, at *10 (N.D. Miss.
July 20, 2012); Archie v. John St. John & Schneider Nat’l Bulk Carriers, Inc., No.
1:12-CV-141-LG-JMR, 2012 U.S. Dist. LEXIS 99478, at *5 (S.D. Miss. July 18,
2012).
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she alleged in the Complaint – permanently disabling injuries, severe past and future
pain, substantial past and future loss of enjoyment of life, past and future medical
expenses, gross negligence, and reckless disregard for customer safety – she could
recover more than the jurisdictional minimum.
C.

Notice
Finally, Plaintiff argues that Defendant did not provide her with notice of

removal as required by 28 U.S.C. § 1446(d). Defendant mailed a copy of the notice of
removal to Plaintiff’s counsel, but not to Plaintiff. Section 1446 provides: “Promptly
after the filing of such notice of removal of a civil action the defendant . . . shall give
written notice thereof to all adverse parties . . . .” 28 U.S.C. § 1446(d). Plaintiff argues
that Section 1446(d) requires service on an adverse party herself, rather than her
counsel.
Federal courts have held that providing notice of removal to a party’s attorney
is sufficient to satisfy 28 U.S.C. § 1446(d).4 Furthermore, Rule 5 provides: “If a party
is represented by an attorney, service under this rule must be made on the attorney
unless the court orders service on the party.” FED. R. CIV. P. 5(b)(1). This Court
previously applied Rule 5 when determining whether a party complied with Section

4

See Kelley’s Adm’r v. Abram, 20 F. Supp. 229, 230 (E.D. Ky. 1937); Lonberger
v. Omni Indem. Co., No. 1:13-CV-243-LG-JMR, 2013 U.S. Dist. LEXIS 109703, at
*11 (S.D. Miss. Aug. 2, 2013); Pittman v. Monumental Life Ins. Co., No. 2:97-CV250-B-B, 1998 U.S. Dist. LEXIS 10795, at *4-*5 (N.D. Miss. May 5, 1998); Ynoa v.
Kutner, 2011 U.S. Dist. LEXIS 49514, at *7-*9 (S.D.N.Y. May 5, 2011); Hill
Dermaceuticals, Inc. v. Rx Solutions, 2008 U.S. Dist. LEXIS 31092, at *6 (M.D. Fla.
Apr. 11, 2008).
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1446(d). Washington v. DerKnoCo Auto Sales, No. 3:06-CV-293-L-R, 2006 U.S. Dist.
LEXIS 47090, at *9 (S.D. Miss. July 10, 2006). Plaintiff admits that Defendant
provided written notice to her attorney. That satisfies Section 1446(d).
For all of the reasons stated above, the Court denies Plaintiff’s Motion to
Remand [5].
SO ORDERED AND ADJUDGED this 29th day of October, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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