Carson v. Target Corporation

Filing 12

ORDER Denying Plaintiff's 6 Motion to Remand to State Court. Signed by Judge James C. Mahan on 5/19/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANGELINA CARSON,

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Plaintiff(s),

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Case No. 2:17-CV-669 JCM (VCF)
ORDER

v.
TARGET CORPORATION,

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Defendant(s).

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Presently before the court is plaintiff Angelina Carson’s motion to remand to state court.
(ECF No. 6). Defendant Target Corporation filed a response (ECF No. 8), to which plaintiff
replied (ECF No. 9).
I.

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The instant action involves a slip-and-fall incident at defendant’s store, from which
plaintiff incurred medical expenses and loss of wages. In particular, plaintiff alleges she suffered
a right ankle/fibula fracture.

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Plaintiff originally filed the complaint in state court on February 7, 2017. (ECF No. 1 at
5). The complaint alleges three claims for relief: (1) negligence; (2) negligence per se; and (3)
negligent hiring, training, retention, and supervision. (ECF No. 1 at 5–9). Plaintiff seeks damages
in excess of $15,000.00. (ECF No. 1 at 9).

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Defendant removed the action to federal court on March 6, 2017, pursuant to 28 U.S.C. §
1332. (ECF No. 1).

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James C. Mahan
U.S. District Judge

Facts

In the instant motion, plaintiff moves to remand the action to state court. (ECF No. 6).
II.

Legal Standard
Pursuant to 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the

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

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

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parties must be completely diverse and the amount in controversy must exceed $75,000.00,

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exclusive of interest and costs. See 28 U.S.C. § 1332(a); Matheson v. Progressive Specialty Ins.

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Co., 319 F.3d 1098 (9th Cir. 2003). A removing defendant has the burden to prove by a

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preponderance of the evidence that the jurisdictional amount is met. See Sanchez v. Monumental

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Life Ins. Co., 102 F.3d 398, 403–04 (9th Cir. 1996).

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Procedurally, a defendant has thirty (30) days upon notice of removability to remove a case

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to federal court. Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006) (citing

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28 U.S.C. § 1446(b)(2)). Defendants are not charged with notice of removability “until they’ve

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received a paper that gives them enough information to remove.” Id. at 1251.

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Specifically, “the ‘thirty day time period [for removal] . . . starts to run from defendant’s

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receipt of the initial pleading only when that pleading affirmatively reveals on its face’ the facts

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necessary for federal court jurisdiction.” Id. at 1250 (quoting Harris v. Bankers Life & Casualty

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Co., 425 F.3d 689, 690–91 (9th Cir. 2005) (alterations in original)). “Otherwise, the thirty-day

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clock doesn’t begin ticking until a defendant receives ‘a copy of an amended pleading, motion,

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order or other paper’ from which it can determine that the case is removable. Id. (quoting 28

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U.S.C. § 1446(b)(3)).

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A plaintiff may challenge removal by timely filing a motion to remand. 28 U.S.C. §

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1447(c). Remand to state court is proper if the district court lacks jurisdiction. Id. On a motion

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to remand, the removing defendant faces a strong presumption against removal, and bears the

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burden of establishing that removal is proper. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398,

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403–04 (9th Cir. 1996); Gaus v. Miles, Inc., 980 F.2d 564, 566–67 (9th Cir. 1992).

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James C. Mahan
U.S. District Judge

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III.

Discussion

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In the statement of removal, defendant states that plaintiff has alleged past medical

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expenses of approximately $25,500, wage loss of approximately $8,500, and total damages of

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approximately $123,500. (ECF No. 5 at 2).

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In the instant motion, plaintiff argues that remand is proper because she “is barred, as a

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matter of law, from recovering more than $50,000 in this matter due to the damages limitation

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placed on the case by the Eighth Judicial District Court.” (ECF No. 6 at 3). In particular, plaintiff

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asserts that because her counsel did not file a petition for exemption from arbitration while the

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action was in state court, plaintiff is barred from seeking damages in excess of $50,000 in state

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court. (ECF No. 6 at 3–4). Plaintiff further asserts that she “is at a loss as to where [d]efendant

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came up with the ‘123,500’ figure.” (ECF No. 6 at 2).

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In response, defendant contends that the amount in controversy is based on a letter from

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plaintiff’s counsel to defendant, dated November 10, 2016, wherein plaintiff’s counsel

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supplements plaintiff’s demand in the amount of $8,485.49, “for a total demand of $123,485.49.”

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(ECF No. 8 at 22). Defendant further contends that the time never began to run for plaintiff to

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seek exemption from the arbitration program in state court because defendant removed the action

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to federal court before filing its answer. (ECF No. 8 at 3). Defendant asserts that it offered to

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stipulate to remand the matter to state court if plaintiff would stipulate to limit her potential

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damages recovery to $50,000, which plaintiff allegedly declined. (ECF No. 8 at 6).

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In her reply, plaintiff asserts she “stipulates that, if this matter is remanded to state court,

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it [sic] will not file a petition to exempt this case from the arbitration program.” (ECF No. 9 at 2).

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Plaintiff states that remand is proper because she “will be barred as a matter of law from recovering

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more than $50,000.” (ECF No. 9 at 2).

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Despite plaintiff’s assertion to the contrary, stipulating to nonbinding arbitration does not

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bar plaintiff from recovering more than $50,000.00 “as a matter of law.”

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38.250(1)(a), civil actions for damages filed in district court that do not exceed $50,000, as the

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amount in controversy, must, subject to certain exceptions, first be submitted to nonbinding

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arbitration.” Zamora v. Price, 213 P.3d 490, 492 (Nev. 2009) (emphasis added). Stipulating to

James C. Mahan
U.S. District Judge

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“Under NRS

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not file an exemption to nonbinding arbitration is not the same as stipulating to limiting potential

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damages recovery to $50,000.00. Plaintiff cites to no authority in support of her assertion and is

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apparently unwilling to concede or stipulate to limiting her damages thereunder.

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Based on the foregoing, the court finds that defendant has satisfied its burden of showing,

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

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Sanchez, 102 F.3d at 404. Defendant provided a letter from plaintiff’s counsel demanding

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$123,485.49 in damages for the subject incident. This amount exceeds the jurisdictional threshold.
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 to state court (ECF No. 6) be, and the same hereby is, DENIED.
DATED May 19, 2017.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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