Ballard v. Best Buy Stores, L.P.

Filing 11

ORDER denying 4 Motion to Remand to State Court. Signed by Judge James C. Mahan on 1/27/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PAIGE BALLARD,

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Plaintiff(s),

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Case No. 2:14-CV-2058 JCM (PAL)
ORDER

v.
BEST BUY STORES, L.P., et al.,

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Defendant(s).

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Presently before the court is plaintiff Paige Ballard’s (hereinafter “plaintiff”) motion to

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remand. (Doc. # 4). Defendant Best Buy Stores, L.P. (hereinafter “defendant”) filed a response,

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(doc. # 8), and plaintiff filed a reply, (doc. # 9).

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I.

Background

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This is a personal injury case. Defendant is a Virginia limited partnership with its

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principal place of business in Minnesota. (Doc. # 7). Plaintiff is a resident of Clark County,

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Nevada. (Doc. # 7). Plaintiff tripped and fell over a frayed section of carpet at defendant’s store.

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(Doc. # 7-2). She incurred multiple injuries including a torn rotator cuff on her left shoulder.

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(Doc. # 7-2).

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On September 30, 2014, plaintiff filed a complaint in Nevada state court asserting causes

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of action for negligence and negligence per se. (Doc. # 7-2). She requested general damages in

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excess of $10,000.00; medical and incidental expenses; past and future lost earnings and earning

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capacity; loss of past and future household services; attorney’s fees and costs; and other

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appropriate relief. (Doc. # 1-2). Defendant was served with the complaint on October 10, 2014.

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(Doc. # 1). On October 31, 2014, defendant filed its answer. (Doc. # 4-2).

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James C. Mahan
U.S. District Judge

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On or about November 20, 2014, plaintiff filed a petition for exemption from the Nevada

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mandatory arbitration program. (Doc. # 7-2). At that time, she reported her total medical

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expenses to be $48,764.00. (Doc. # 7-2). She also claimed damages for lost income and loss of

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past and future household services. (Doc. # 7-2). Accordingly, plaintiff stated that the case

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involves an amount in excess of $50,000.00. (Doc. # 7-2).

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On December 9, 2014, defendant removed the case to this court. (Doc. # 1). On

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December 11, 2014, plaintiff filed the instant motion to remand the action to state court. (Doc. #

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4).

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II.

Legal Standard

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For a district court to have diversity jurisdiction under 28 U.S.C. § 1332, the parties must

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be completely diverse and the amount in controversy must exceed $75,000.00. See 28 U.S.C. §

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1332(a); Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1098 (9th Cir. 2003).

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Under 28 U.S.C. § 1441, “any civil action brought in a State court of which the district

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courts of the United States have original jurisdiction, may be removed by the defendant or the

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defendants, to the district court of the United States for the district and division embracing the

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place where such action is pending.” 28 U.S.C. § 1441(a).

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Removal of a case to a United States district court may be challenged by motion. 28

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U.S.C. § 1441(c). A federal court must remand a matter if there is a lack of jurisdiction. Id.

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Removal statutes are construed restrictively and in favor of remanding a case to state court. See

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Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); Gaus v. Miles, Inc., 980 F.2d

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564, 566 (9th Cir. 1992).

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A defendant removing a case to federal court has the burden to prove by a preponderance

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of the evidence that the jurisdictional amount is met. See Sanchez v. Monumental Life Ins. Co.,

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102 F.3d 398, 403-04 (9th Cir. 1996). On a motion to remand, the removing defendant faces a

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strong presumption against removal, and bears the burden of establishing that removal is

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proper. Gaus, 980 F.2d at 566-67; Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04

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(9th Cir. 1996).

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James C. Mahan
U.S. District Judge

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A defendant wishing to remove an action must generally file a notice of removal within

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thirty days of receipt of the initial pleading or service of summons. 28 U.S.C. § 1446(b)(2)(B).

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However, “a notice of removal may be filed within thirty days after receipt by the defendant,

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through service or otherwise, of a copy of an amended pleading, motion, order or other paper

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from which it may be first ascertained that the case is one which is or has become removable.”

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28 U.S.C. § 1446(b)(3).

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III.

Discussion

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Plaintiff makes two arguments in support of remand. The court will address them in turn.

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i.

Timeliness

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Plaintiff first asserts that defendant’s notice of removal was untimely because it was not

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filed within thirty days of defendant’s receipt of the complaint as required by 28 U.S.C. §

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1446(b)(1). (Doc. # 4).

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Defendant responds that it timely removed the instant action based on 28 U.S.C. §

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1446(b)(3), because the case became removable only when plaintiff filed her notice of exemption

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from arbitration on November 20, 2014. (Doc. # 8). Defendant asserts that when it was served

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with plaintiff’s complaint, plaintiff had reported only $10,441.00 in medical expenses. (Doc. #

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8). Defendant’s counsel filed an affidavit attesting to this fact. (Doc. # 8-3).

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Plaintiff replies that defendant had knowledge of her damages as of the date of the

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complaint. (Doc. # 9). She claims that “the claim representative for Best Buy was aware by no

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later than May of 2014 that Plaintiff underwent an extensive shoulder surgery on May 16, 2013.”

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(Doc. # 9). Plaintiff states that it was therefore “understood, if not expressly communicated, that

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Plaintiff’s medical bills were much higher than $10,000.00.” (Doc. # 9). Accordingly, plaintiff

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maintains that removal is no longer proper. (Doc. # 9).

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Plaintiff provides no evidence in support of her assertion that defendant knew the extent

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of her medical damages at the time it was served with plaintiff’s complaint. (Doc. # 9). Further,

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even if defendant’s claim representative did know that plaintiff underwent surgery, plaintiff does

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not allege that she disclosed her $48,764.00 medical costs, or any other comparable costs, to

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defendant before November 20, 2014.

James C. Mahan
U.S. District Judge

(Doc. # 9).

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Plaintiff simply alleges that it was

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“understood” that her medical bills greatly exceeded $10,000.00. (Doc. # 9).

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Based on the foregoing, the court finds that removal was timely. Defendants were able to

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ascertain that plaintiff’s case was removable only from the filing of her petition for exemption

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from arbitration. (Doc. # 8). Defendants complied with the relevant statutory provision allowing

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thirty days from this date to remove the action. Accordingly, the case is not properly remanded

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on these grounds.

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ii.

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Plaintiff contends that “[a] Defendant must demonstrate more than a likelihood that the

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Plaintiff will recover more than $75,000.00; the Defendant must demonstrate that any amount

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Amount in controversy

less than $75,000.00 is outside the range of possible awards.” (Doc. # 4).

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This language originates from an Eleventh Circuit case. See Burns v. Windsor Ins. Co.,

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31 F.3d 1092, 1095 (11th Cir. 1994); see also CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

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FEDERAL PRACTICE AND PROCEDURE § 3702 (citing this language). Burns is not binding in the

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Ninth Circuit, where a different standard applies. See Sanchez v. Monumental Life Ins. Co., 102

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F.3d 398, 403-04 (9th Cir. 1996) (holding that removing defendants must prove by a

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preponderance of the evidence that the amount in controversy requirement is met).

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In this jurisdiction, a defendant is entitled to removal if it can demonstrate, by a

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preponderance of the evidence, that the amount in controversy requirement is met. See id.

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Defendant meets this standard in the instant case. Defendant attached plaintiff’s complaint and

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petition for exemption from arbitration to its notice of removal. (Doc. # 1).

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In her petition for exemption, plaintiff states that the amount in controversy for this case

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exceeds $50,000.00. (Doc. # 8-4). She provides an itemized list of her current medical costs,

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totaling $48,764.00. (Doc. # 8-4). Plaintiff also notes that she is seeking damages for lost

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income, loss of past and future household services, and attorney’s fees. (Doc. # 8-4).

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Finally, plaintiff’s complaint includes a request for general damages in an amount in

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excess of $10,000.00. (Doc. # 1-2). In conjunction with her request for general damages,

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plaintiff states that she “sustained severe injuries to her body, which caused her to suffer great

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James C. Mahan
U.S. District Judge

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pain of body and mind, some of which conditions are permanent and disabling . . . .” (Doc. # 1-

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2).

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Based on the foregoing, it appears likely that plaintiff’s total requested damages exceed

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$75,000.00. Plaintiff characterizes her injuries as permanent and disabling. Accordingly, she

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requests multiple categories of past and future damages, in addition to her $48,764.00 in medical

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costs. (Doc. # 8-4).

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Further, plaintiff does not contend that she seeks less than $75,000.00. (Doc. # 4).

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Instead, she argues that the case should be remanded because defendant cannot show that an

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amount less than $75,000.00 is outside the range of possible awards. (Doc. # 4). As previously

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discussed, this is not the applicable legal standard.

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By reference to plaintiff’s filings, defendant has met its burden of showing, by a

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preponderance of the evidence, that the amount in controversy exceeds $75,000.00.

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Accordingly, plaintiff’s motion to remand will be denied.

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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 to

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remand, (doc. # 4), be, and the same hereby is, DENIED.
DATED January 27, 2015.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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