Boyd v. Dolgencorp, Inc.

Filing 10

ORDER re 5 Amended MOTION to Remand to State Court filed by Denise Boyd. Signed by Honorable David C. Bramlette, III on 8/31/2012 (PL)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
DENISE BOYD
V.

PLAINTIFF
CIVIL ACTION NO.: 5:12-CV-48-DCB-JMR

DOLGENCORP, INC.

DEFENDANT
OPINION AND ORDER

This cause is before the Court on Plaintiff’s Amended Motion
to Remand [docket entry no. 5]. Having carefully considered the
Motion, Defendant’s opposition thereto, applicable statutory and
case law, and being otherwise fully advised in the premises, the
Court finds and orders as follows:
I. Facts and Procedural History
Plaintiff Denise Boyd filed a complaint [docket entry no. 1]
against Dollar General Corporation in the Circuit Court of Yazoo
County, Mississippi, alleging that she was injured when she slipped
and fell while shopping at one of its stores.1 The ad damnum clause
in the complaint stated damages in the amount of $74,000. Dollar
General, concerned that the facts pled in the complaint could
support a greater damages claim, served on Boyd its First Set of
Requests for Admission, wherein it set forth the following four
requests:

1

Before the instant cause was removed, the Parties entered an
agreed order substituting Defendant Dolgencorp Inc. for Dollar
General Corporation. The Court will refer to the Defendant as
Dollar General in the interest of simplicity. See Agreed Order,
docket entry 1-1 at 25-26.

Request No. 1: Admit that the amount in controversy in
this proceeding does not exceed $75,000.
Request No. 2: Admit that the amount in controversy in
this proceeding does exceed $75,000.
Request No. 3: Admit that the Plaintiff will never
attempt to assert any claim in this proceeding that
exceeds $75,000.
Request No. 4: Admit that the Plaintiff will attempt to
assert a claim in this proceeding that exceeds $75,000.
Def.’s First Set of Reqs. for Admis. to Pl., docket entry no. 1-1
at 55-56. These requests were ignored.
Defense counsel, recognizing that the requests were deemed
admitted by virtue of Boyd’s failure to respond, see Miss. R. Civ.
Pro. 36(a), wrote plaintiff’s counsel to inform him that the case
would be removed to federal court if no response was provided. Mar.
9, 2012 Letter, docket entry no. 1-1 at 57-59. This letter also
went unheeded, and on April 9, 2012, Dollar General filed its
Notice of Removal, claiming that this Court has subject matter
jurisdiction over the cause of action. Not long thereafter, Boyd
filed the present Motion to Remand. In an effort to secure remand,
Boyd’s attorney attached an affidavit to the Motion averring that
he will not seek damages in excess of $75,000 on behalf of his
client.
II. Standard of Review
A federal court has subject matter jurisdiction when the
amount in controversy exceeds $75,000 and is between citizens of
different states. 28 U.S.C. § 1332(a). A defendant may remove an
2

action filed in state court to the appropriate federal court within
thirty days

of

ascertaining

that

the action

meets

these

two

requirements. 28 U.S.C. § 1446.2 When a plaintiff moves for remand
based on lack of jurisdiction, a defendant bears the initial burden
of demonstrating by a preponderance of the evidence that the amount
in controversy exceeded the jurisdictional minimum at the time of
removal. Gebbia v. Wal-mart Stores, Inc., 233 F.3d 880, 883 (5th
Cir. 2000). If the defendant carries this burden, the plaintiff
must

respond

recovery

by

sought

demonstrating
“will

not

with

exceed

legal
the

certainty

amount

that

stated

in

the
the

complaint.” De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir.
1995).
III. Analysis
The fact that the amount in controversy is clearly stated as
$74,00 on the face of the complaint is the starting point for the
Court. It is well-settled that a plaintiff may avoid federal
jurisdiction by pleading an amount less than $75,000, as long as
the amount is pled in good faith. E.g., Allen v. R & H Oil & Gas
Co., 63 F.3d 1326, 1335 (5th Cir. 1995). The burden is on Dollar

2

Section 1446 was amended in December 2011. With respect to
motions to remand, the amendments apply to any action or
prosecution commenced in state court after early January 2012.
Federal Courts and Venue Clarification Act of 2011, Pub. L. No. 91190, § 105 (Dec. 7, 2011). The complaint was filed in state court
on July 29, 2011, and therefore the 2011 amendments do not apply
here. Regardless, the Court does not see any significant difference
between the standard articulated herein and the procedure outlined
in the statute.
3

General, as the removing party, to convince this Court that $74,000
amount has been pled in bad faith. Horton v. Liberty Mut. Ins. Co.,
367 U.S. 348, 353 (1961). Dollar General attempts to meet this
burden (1) by arguing that Boyd’s failure to stipulate that the
amount in controversy does not exceed $75,000 warranted removal and
(2) the facts alleged in the complaint indicate that Boyd’s damages
exceed $75,000. It is upon the first argument that Dollar General’s
opposition to remand primarily rests.
1. The Court’s Preferred Approach
Dollar General cites Easley v. Lowe’s Home Centers, Inc., 2007
WL 2127281 (S.D. Miss. July 23, 2007), for the proposition that
Boyd’s failure to stipulate that the amount in controversy does not
exceed $75,000 warranted removal of the case. Easley falls within
a widely accepted line of cases from this Court which outlines the
so-called “preferred approach” for removing a case when a defendant
suspects that the amount in controversy is greater than $75,000.
McLain v. Am. Int’l Recovery, 1 F. Supp. 2d 628, 631 (S.D. Miss.
1998) (establishing the “preferred approach”); see also, e.g.,
Fields v. Household Bank, 280 F. Supp. 2d 530, 532 (N.D. Miss.
2003); Blount v. Hardcastle, 2006 WL 278567 (N.D. Miss. Jan. 5,
2006); Holmes v. Citifinancial Mortg. Co., 436 F. Supp. 2d 829
(N.D. Miss. 2006). Put simply, under this approach a defendant asks
the plaintiff through state court discovery procedures, e.g.,
interrogatories, requests for admission, depositions, whether he or

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she intends to later seek or accept damages greater than $75,000.
McLain,

1

F.

Supp.

2d

at

632.

If

the

plaintiff

answers

affirmatively, the discovery response constitutes an “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).3
As an initial matter, the Court rejects Dollar General’s
Easley argument for the simple reason that in this case Boyd’s
admissions

only

serve

to

create

additional

ambiguity.

Dollar

General asked Boyd to admit that the amount in controversy was less
than $75,000 and admit that the amount in controversy was greater
than $75,000. If both of these requests are deemed admitted by
virtue of Boyd’s failure to respond, then Boyd’s admissions have
the effect of cancelling each other out, nullifying whatever
conclusions

that

can

be

drawn

therefrom.

Defense

counsel’s

subsequent letter to Boyd’s attorney requesting that Boyd “respond
or else we will remove” is not legally binding because it does not
constitute an “other paper.” McLain, 1 F. Supp. 2d at 630-31
(finding

that

an

attorney’s

failure

to

respond

to

opposing

3

One of the new amendments to the removal statute appears to
codify this view. 28 U.S.C. § 1446(c)(3)(a) provides:
If the case stated by the initial pleading is not
removable solely because the amount in controversy does
not exceed the amount specified in section 1332(a),
information relating to the amount in controversy in the
record of the State proceeding, or in responses to
discovery, shall be treated as an ‘other paper’ under
subsection (b)(3).
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counsel’s refusal to sign a written stipulation did not constitute
an “other paper” under the removal statute). Boyd’s failure to
respond to the Defendant’s Requests for Admission or any later
correspondence between the Parties cannot form the basis for
removal.
Furthermore, while the preferred approach is a helpful tool in
ascertaining whether removal is appropriate, any “admission” made
under the preferred approach is not necessarily dispositive of
whether jurisdiction is proper. See Wilbanks v. North American Coal
Corp., 334 F. Supp. 2d 921, 927 (S.D. Miss. 2004) (explaining that
the preferred approach has been tempered by the Fifth Circuit’s
adoption of an equitable exception to the one-year removal bar when
forum manipulation is present). For instance, even if the Requests
for Admission had been worded in such a way that Boyd admitted that
the amount in controversy exceeded $75,000, the Court would decline
to summarily conclude that the requirements of 28 U.S.C. § 1332(a)
are met without further analysis.4 The Court should at the very
least weigh the admission in light of the other evidence to
determine whether the Parties can meet their respective burdens.
Here, the evidence suggests that Boyd’s attorney was trying to
4

An admission made via the preferred approach is no more
dispositive of the amount-in-controversy dispute than the amount
stated on the complaint itself, since both are subject to change.
Compare Miss R. Civ. P. 15(a) (“[L]eave to amend shall be granted
when justice so requires . . . .”), with Miss. R. Civ. P. 36(b)
(“[T]he court may permit withdrawal or amendment [of an admission]
when the presentation of the merits of the action will be subserved
thereby . . . .”).
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contact his client in order to respond to the discovery request,
and upon removal, sought to bolster his argument that the $74,000
amount had been pled in good faith by filing his affidavit when he
could not reach his client. See Feb. 1, 2012, Letter, docket entry
no. 4-1 (stating that Boyd’s attorney was attempting to comply with
the discovery request and asking for additional time to respond).
It

does

not

appear

that

Boyd

is

intentionally

playing

a

jurisdictional game with the Court. Cf. Draper v. U.S. Fidelity &
Guaranty Co., 2000 WL 268565, at *4 (S.D. Miss. 2000) (finding, in
a comparable, but distinguishable factual situation, that the
plaintiff’s response to a discovery request was intentionally
evasive).
2. The Face of the Complaint
At this point, the Court can only look to the face of the
complaint and the other sparse evidence before it to determine
whether it can exercise jurisdiction over the cause. The facts
cited in the complaint could perhaps support a claim for damages
greater than $74,000, but the facts alone do not indicate that
$74,000 is unreasonable amount to compensate Boyd for her alleged
injuries.

Dollar

General

highlights

the

facts

that

Boyd

characterizes her pain as “severe” and describes her treatment as
ongoing.

But

Boyd,

as

the

master

of

the

complaint,

gets

to

establish the value of her pain and suffering, and it would be
speculative to conclude without further evidence that an ambulance

7

ride, a few doctors visits, some medication, and physical therapy
cost her more than the amount she seeks. It is possible that Dollar
General could meet its burden if it had access to Boyd’s medical
bills and other relevant summary-judgement-type evidence, but there
is no indication that Dollar General has been presented with this
evidence.
Faced with similar situations in the past, the Court has
allowed a plaintiff to file an affidavit establishing with legal
certainty that the amount in controversy is no greater than $75,000
before making a determination as to whether remand is proper. Davis
v. Office Max, 2011 WL 5983396, at *5-*6 (S.D. Miss. Nov. 29, 2011)
(citations omitted); Haley v. Ford Motor Co., 398 F. Supp. 2d 522,
525 (S.D. Miss. 2005) (citations omitted). Boyd attorney’s was
presumably

attempting

to

comply

with

this

commonly

accepted

practice by attaching his affidavit to the present Motion to
Remand. That affidavit, however, does not and could not bind Boyd,
who can circumvent the affidavit’s intended effect by finding
another attorney to amend the complaint. But it does indicate to
this Court that Boyd is amenable to filing such an affidavit if
given the opportunity.
Therefore, without making a determination as to whether remand
is proper, the Court will allow Boyd ten (10) days to file an
affidavit with this Court stating that she will not seek or accept
an amount greater than $75,000, exclusive of interest and costs, in

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connection with the present cause of action against Dollar General.
Filing such an affidavit would expedite the Court’s decision since
it

would

establish

with

legal

certainty

that

the

amount

in

controversy is less than $75,000 and would additionally serve as a
sufficient response to Dollar General’s yet-to-be-answered Requests
for Admissions. If Boyd chooses not to file an affidavit, the Court
will consider whether it will remand the case without the affidavit
or whether it will require the Parties to produce all evidence
demonstrating Boyd’s known and ascertainable damages. See Davis,
2011 WL 5983396, at *6; Haley, 398 F. Supp. 2d at 529.
III. Conclusion
Accordingly, IT IS HEREBY ORDERED that the Plaintiff has ten
(10) days from entry of this Order to file a binding affidavit
limiting her recovery from the Defendant to $75,000.00, exclusive
of interest and costs. If the Plaintiff chooses not to do so, upon
the expiration of the ten (10) days another order shall issue
either resolving the matter or further instructing the Parties.
So ORDERED, this the 31st day of August, 2012.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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