Johanneck v. Target Corporation

Filing 20

ORDER Granting 9 Motion to Remand to State Court. Denying request that the court issue an order precluding plaintiff from seeking damages in excess of $75,000. Signed by Judge James C. Mahan on 12/9/2014. (Copies have been distributed pursuant to the NEF; Certified Copy of Docket Sheet and Order Mailed to State Court - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEPHANIE JOHANNECK,

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Plaintiff(s),

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Case No. 2:14-CV-1607 JCM (CWH)
ORDER

v.
TARGET STORES, INC.,

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Defendant(s).

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Presently before the court is plaintiff Shannon Johanneck’s (hereinafter “plaintiff”)

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motion for remand. (Doc. # 9). Target Corporation (hereinafter “defendant” / “Target”) filed a

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response. (Doc. # 13). To date, plaintiff has not filed a reply and the deadline to reply has

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passed.

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I.

Background

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This is a slip and fall case. Plaintiff was injured in a Target store when she slipped on an

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unknown slippery substance and fell. Plaintiff then brought the instant action alleging that

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Target was negligent. Plaintiff argues that Target had notice that the substance was on the floor

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and left it unattended or failed to notice plaintiff, causing her to fall.

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Plaintiff filed her complaint in the Eighth Judicial District Court in Clark County,

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Nevada. Based on the injuries plaintiff claimed, defendant timely removed the case to this court.

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Defendant removed the case asserting that diversity of citizenship exists and the amount in

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controversy exceeds $75,000. However, plaintiff argues that the amount in controversy is not

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met and the case should be remanded to state court. Accordingly, plaintiff filed the instant

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motion.

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James C. Mahan
U.S. District Judge

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II.

Legal Standard

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A complaint filed in state court may be removed to federal court if the federal court

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would have had original jurisdiction over the action had it originally been brought in federal

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court. 28 U.S.C. § 1441(a). This court has original jurisdiction, pursuant to 28 U.S.C. § 1332(a),

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over suits between citizens of different states for which the amount in controversy exceeds

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$75,000. 28 U.S.C. § 1332(a).

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In deciding whether removal is proper, courts strictly construe the removal statute against

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finding jurisdiction. Provincial Gov’t of Marinduque v. Placer Dome, Inc., 582 F.3d 1083, 1087

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(9th Cir. 2009); see also California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir.

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2004). The burden of proof for removal is on the defendant. See Gaus v. Miles, Inc., 980 F.2d

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564, 566 (9th Cir. 1992) (citing Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712

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(9th Cir. 1990)).

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Finally, “when the plaintiff fails to plead a specific amount of damages, the defendant

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seeking removal must prove by a preponderance of the evidence that the amount in controversy

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requirement has been met.” Lowdermilk v. U.S. Bank National Ass’n., 479 F.3d 994, 998 (9th

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Cir. 2007). “Where doubt regarding the right to removal exists, a case should be remanded to

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state court.” Matheson v. Progressive Specialty Ins., Co., 319 F.3d 1089, 1090 (9th Cir. 2003);

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see also Gaus, 980 F.2d at 566.

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III.

Discussion

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A. Motion to remand

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To satisfy jurisdiction pursuant to 28 U.S.C. § 1332(a), there must be complete diversity

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between the parties. Plaintiff alleges in the complaint that she is a resident of Nevada. Target is

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a Minnesota corporation which maintains its principal place of business in Minnesota. Thus, the

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diversity requirement is satisfied.

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Next, in order for the district court to exercise jurisdiction, the amount in controversy

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must exceed $75,000. In the complaint, plaintiff requests “general and specific damages in

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excess of $10,000.00.” (Doc. # 1). Since plaintiff did not plead a specific amount, “defendant

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James C. Mahan
U.S. District Judge

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must prove by a preponderance of the evidence that the amount in controversy requirement has

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been met.” Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 998 (9th Cir. 2007).

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Plaintiff represents in her motion that she has incurred $16,434.60 in medical expenses.

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(Doc. # 9). Defendant argues that plaintiff failed to allege that she will not incur future medical

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expenses. (Doc. # 13). However, plaintiff does not have the burden of proving her damages will

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not meet $75,000. It is defendant’s burden to prove, by a preponderance of the evidence, that the

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damages will exceed $75,000.

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To prove this, defendant has provided the court with case law showing the amount of
damages other plaintiffs have been awarded for lumbar vertebra fractures.

Id.

However,

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defendant failed to prove that the damages in the instant case will be consistent with that case

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law. Defendant was willing to stipulate to remand if plaintiff agreed not to seek damages

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exceeding $75,000. Defendant argues that plaintiff’s refusal to stipulate is evidence that the

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amount in controversy exceeds $75,000.

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Defendant has provided little evidence that the amount in controversy requirement will be

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met. The court does not find awards that other plaintiffs have received for spinal injuries

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convincing. The court also does not find that plaintiff’s refusal to stipulate is evidence that the

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amount in controversy will be met. Defendant has not proven by a preponderance of the

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evidence that the amount in controversy will exceed $75,000. Accordingly, the court finds that

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remanding the case to state court is appropriate.

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B. Defendant’s request for a court order

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Defendant requests that if the court is inclined to grant plaintiff’s motion for removal,

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then the court should issue an order precluding plaintiff from seeking damages in excess of

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$75,000. Defendant has provided the court with a Kentucky and a West Virginia case to

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convince the court that this is appropriate. However, this court does not find the cases persuasive

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since both are distinguishable from the instant case.

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In Ratliff v. Merck & Company, the plaintiff was estopped from seeking more than

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$75,000 after removal. Ratliff v. Merck & Co., 59 F. Supp. 2d 571, 576 (E.D. Ky. 2005).

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However, the court found this to be proper because the plaintiff alleged in the complaint that

James C. Mahan
U.S. District Judge

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damages did not exceed $75,000. Id. That is not the case here. Plaintiff has alleged damages in

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excess of $10,000. Plaintiff has never alleged any number limiting the damages to a certain

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amount.
In Adkins, the plaintiff stated that his damages would not exceed $50,000. Adkins v.

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Gibson, 906 F.Supp. 345, 348 (S.D.W.Va. 1995). The court determined that this representation

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was binding on the plaintiff. Id. However, this case was abrogated by McCoy v. Erie Insurance

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Company, 147 F. Supp. 2d 481, 485 (S.D.W.Va. 2001).

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It was later determined that “the better rule requires a formal, truly binding, pre-removal

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stipulation signed by counsel and his client explicitly limiting recovery.” McCoy, 147 F. Supp.

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2d at 485-86 (citing Hicks v. Herbert, 122 F.Supp.2d 699, 701 (S.D.W.Va. 2000) (“Only a

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binding stipulation that they would not seek nor accept more than $75,000 could limit the

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potential recovery. Some authority additionally suggests such a waiver must be truly binding on

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the plaintiff in state court before it will prevent removal.”).

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Here, as defendant has pointed out, plaintiff refused to stipulate to limit her damages.

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Nevertheless, plaintiff represents that her damages will not be in excess of $75,000. In light of

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the court’s finding that remand is appropriate, the court lacks jurisdiction to issue such an order.

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Accordingly, this court finds it improper to issue the order defendant requests. However, the

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court notes that plaintiff may be judicially estopped from taking an inconsistent position and

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claiming damages in excess of $75,000 in state court.

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IV.

Conclusion

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for

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remand, (doc. # 9) be, and the same hereby is, GRANTED.

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James C. Mahan
U.S. District Judge

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IT IS FURTHER ORDERED that defendant’s request that the court issue an order

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precluding plaintiff from seeking damages in excess of $75,000 be, and the same hereby is,

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DENIED.

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DATED December 9, 2014.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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