Wagner et al v. Guevara et al

Filing 18

OPINION AND ORDER by Judge Terence Kern ; remanding case (terminates case) ; granting #16 Motion to Remand (vah, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(1) CHARLOTTE WAGNER, individually
and as next friend for M.H.,
(2) JORDAN WAGNER, an individual,
Plaintiffs,
v.
(1) LORI GUEVARA, an individual,
(2) WAL-MART STORES, INC., a foreign
for profit business corporation,
(3) WAL-MART STORES EAST, INC.,
a foreign for profit business corporation,
(4) WAL-MART STORES EAST, L.P.,
a foreign limited partnership,
Defendants.

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Case No. 13-CV-203-TCK-PJC

OPINION AND ORDER
Before the Court is Defendant Lori Guevara’s Motion for Remand Order Granting Notice
of Transfer (“Motion for Remand”) (Doc. 16).
I.

Factual Background
Plaintiffs Charlotte Wagner and Jordan Wagner (“Plaintiffs”) initially filed this action in the

District Court for Tulsa County, Oklahoma on March 4, 2013. In their Petition, Plaintiffs brought
a claim of negligence against Defendant Lori Guevara and claims of negligence and premises
liability against Defendants Wal-Mart Stores, Inc., Wal-Mart Stores East, Inc., and Wal-Mart Stores
East, L.P. (collectively, “the Wal-Mart Defendants”) (Doc. 2-2).1 Plaintiffs’ claims arose out of an
automobile accident that occurred in a Wal-Mart parking lot in Tulsa, Oklahoma on March 8, 2012.

1

Plaintiffs filed an Amended Petition on March 7, 2013, presumably to correct a
typographical error, but did not name any additional parties or allege any additional claims (Doc.
2-3).

On April 8, 2013, the Wal-Mart Defendants filed their Notice of Removal, asserting diversity
jurisdiction and alleging that Defendant Guevara was a resident of Washington, D.C. (Doc. 2, at 2
(“Upon knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances, the Co-Defendant, Lori Guevara, is a resident of Washington, D.C.”).)2 On June 24,
2013, Defendant Guevara filed her Motion to Remand, asserting that she was a resident of
Oklahoma when the accident occurred, had remained an Oklahoma resident at all relevant times,
and that removal was therefore inappropriate. (See Doc. 16, at 2.) In their Response to the Motion
for Remand, the Wal-Mart Defendants failed to explain the allegations in their Notice of Removal
and consented to remand of the action to the District Court for Tulsa County, Oklahoma. (See Doc.
17.)3
II.

Attorney’s Fees
In the Motion to Remand, Defendant Guevara requested the Court award her costs, fees, and

any other relief the Court deems just and appropriate related to the Wal-Mart Defendants’ removal
of the action. “An order remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). The
standard for awarding fees turns on the reasonableness of removal. Porter Trust v. Rural Water
Sewer & Solid Waste Mgmt. Dist. No. 1, 607 F.3d 1251, 1253 (10th Cir. 2010). “Absent unusual
circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party

2

Defendant Guevara was not served until April 2, 2013, and had yet to answer or otherwise
appear at the time the Notice of Removal was filed.
3

Because the Wal-Mart Defendants concede that remand is appropriate, it is not necessary
for the Court to analyze the existence of diversity jurisdiction in this case.
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lacked an objectively unreasonable basis for seeking removal. Conversely, when an objectively
reasonable basis exists, fees should be denied.” Id. (internal quotation marks omitted).
The Court finds that the Wal-Mart Defendants’ removal was objectively unreasonable based
on the circumstances and information presented. The underlying facts – namely, an automobile
accident that occurred in the parking lot of a Wal-Mart in Tulsa, Oklahoma – suggest that Defendant
Guevara is likely an Oklahoma resident rather than a Washington, D.C. resident. Nonetheless, the
Wal-Mart Defendants’ Notice of Removal asserted, without any further explanation or supporting
evidence, that “[u]pon knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances, the Co-Defendant, Lori Guevara, is a resident of Washington, D.C.” (Doc. 2, at
2.) After Defendant Guevara declared that she was an Oklahoma resident and had been at all
relevant times, the Wal-Mart Defendants simply conceded the Motion to Remand and offered no
explanation or further support for the original allegation in their Notice of Removal. (Doc. 17, at
1 (“Upon information and belief, it appeared Co-Defendant, Guevara, was residing in Washington,
D.C.”).) Thus, the Wal-Mart Defendants failed to provide the Court with any information regarding
what led them to believe that Defendant Guevara was a resident of Washington, D.C. or what
“inquiry reasonable under the circumstances” was conducted prior to removal. Based on the limited
information provided and the underlying facts of the case, the Court finds that the Wal-Mart
Defendants have not shown an objectively reasonable basis for removal and that an award of fees
is proper pursuant to 28 U.S.C. § 1447(c).
III.

Conclusion
Defendant Lori Guevara’s Motion to Remand (Doc. 16) is GRANTED, and this action is

REMANDED to the District Court for Tulsa County, Oklahoma. Defendants Wal-Mart Stores, Inc.,
Wal-Mart Stores East, Inc., and Wal-Mart Stores East, L.P. are ordered to pay just costs and any
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actual expenses, including attorney’s fees, incurred as a result of the removal. If the parties cannot
agree on the amount of costs and fees, Defendant Guevara shall file a motion for costs and fees no
later than September 3, 2013, and such motion shall be referred to Magistrate Judge Paul Cleary.
DATED this 19th day of August, 2013.

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