Adamson v. Big Lots Stores, Inc.

Filing 16

ORDER DENYING 9 Plaintiff's Motion to Remand. Signed by US District Judge Terrence W. Boyle on 9/19/2013. Counsel is directed to read Order in its entirety for critical information. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-238-BO

ZACHARY ADAMSON,
Plaintiff,
V.

BIG LOTS STORES, INC.,
Defendant.

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ORDER

This cause comes before the Court on plaintiff's motion to remand. 1 For the reasons
discussed below, plaintiff's motion is denied.
BACKGROUND
Plaintiff filed this slip and fall action in Wake County Superior Court alleging claims of
negligence. Defendant removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446
on the basis of the Court's diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff does not
challenge that the parties to this matter are diverse in their citizenship, but contends that the
amount in controversy requirement of§ 1332 has not been satisfied.
DISCUSSION
An action initiated in a state court may be removed to federal court only if it could have
been brought in federal court originally. 28 U.S.C. § 1441(a); see also Sonoco Prods. Co. v.
Physicians Health Plan, Inc., 338 F.3d 366, 370 (4th Cir. 2003). The burden of establishing
federal jurisdiction is on the party seeking removal. !d. (citing Mulcahey v. Columbia Organic

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The Court notes that plaintiff has failed to file a supporting memorandum in violation of
Local Civil Rule 7.l(d).

Chern. Co. Inc., 29 F.3d 148, 151 (4th Cir. 1994)). Removaljurisdiction is strictly construed such
that if federal jurisdiction is doubtful, remand is necessary. Hartley v. CSX Transp., Inc., 187
F.3d 422, 425 (4th Cir. 1999).
Diversity jurisdiction exists in cases between citizens of different states where the amount
in controversy exceeds$ 75,000 exclusive of interests and costs. 28 U.S.C. § 1332. The amount
in controversy is typically determined on the basis of the plaintiffs complaint. See St. Paul
Mercury lndem. Co. v. Red Cab Co., 303 U.S. 283, 289. However, North Carolina does not
permit plaintiffs to plead the exact amount oftheir demand for relief in civil actions alleging
negligence, and thus it is not possible to determine the amount in controversy from the face of a
complaint. See N.C. Gen. Stat.§ 1A-1, Rule 8(a)(2). In cases with indeterminable sums, federal
courts have determined the amount of controversy by considering all evidence bearing on the
issue. See Lawson v. Tyco Elecs. Corp., 286 F. Supp.2d 639, 641 (M.D.N.C. 2003).
Additionally, "[ e]vents occurring subsequent to the institution of suit which reduce the amount
recoverable below the statutory limit do not oust jurisdiction." St. Paul Mercury, 303 U.S. at 28990.
In support of remand, plaintiff states that he has asked for less than $75,000 to settle the
case [DE 9-1]. Specifically, plaintiff in a letter dated December 3, 2012, asked for $74,999 to
settle the case. The letter further states that if a settlement cannot be reached, plaintiff will re-file
his complaintl with an amount in controversy not high enough for federal court. Earlier in time,
however, plaintiff stated that he would accept $100,000 [DE 10-1] and $95,000 [DE 10-2] to

2

Plaintifffiled an action earlier in time that was also removed to this Court. See No.
5:12-cv-465-F. Plaintiff stipulated to dismissal ofthat action [DE 8].
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settle his claim. In his state court complaint, plaintiff contends that as result of the negligence of
defendant plaintiff suffered injuries causing him to suffer extreme physical pain and mental
anguish, to have serious and permanent disfigurement, permanent injury, lost wages, and lost
earning capacity.
While it notes that a plaintiff is free to plead less than the jurisdictional amount in order to
avoid federal jurisdiction, St. Paul Mercury, 303 U.S. at 294, the Court is "not required to leave
its common sense behind" when determining whether the jurisdictional amount has been satisfied.
White v. JC. Penney Life Ins. Co., 861 F. Supp. 25,27 (S.D.W.V. 1994)(discussing differing

standards applied by courts in determining whether the claims meet the jurisdictional requirement,
and noting that the ultimate the burden always remains with the defendant to establish that
removal is proper).
With no other frame of reference provided in plaintiff's complaint, the Court relies on
plaintiff's most recent demand of just one dollar less than the jurisdictional amount, and the
severity and permanency of plaintiff's injuries alleged in his complaint, to conclude that the
amount in controversy in this matter exceeds $75,000. Additionally, plaintiffhimselfhas valued
his case at $100,000, well-above the minimum amount in controversy. See Peddie v. Sterling
Jewelers, Inc., 282 F. Supp.2d 947, 949 (E.D.Wis. 2003) (amount in controversy satisfied where

plaintiff alleges she suffered lost wages, benefits, and emotional distress and nothing indicates
that plaintiff believes her claim is worth less that $75,000). The jurisdictional requirements of
section 1332 have therefore been satisfied.

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CONCLUSION
For the foregoing reasons, plaintiffs motion to remand [DE 9] is DENIED.

SO ORDERED, this

J!1 day of September, 2013.

TE
NCE W. BOYLE
UNITED STATES DISTRICT JUD

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