Crosby v. W.G. Wade Shows, Inc.

Filing 17

OPINION AND ORDER by Judge John E Dowdell ; finding as moot 8 Motion to Clarify; denying 10 Motion to Strike Document(s); denying 14 Motion to Remand (Re: State Court Petition/Complaint ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
BARBARA CROSBY,
Plaintiff,
v.
W.G. WADE SHOWS, INC.,
Defendant.

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Case No. 16-CV-559-JED-FHM

OPINION AND ORDER
Plaintiff initiated this case in Tulsa County District Court on June 10, 2016, alleging that
she was severely injured while attending the State Fair in Tulsa on October 4, 2015 as a result of
“mats not being properly in place to cover . . . electrical cables.” (Doc. 2-2 at 2). She attributes
her injuries to the negligence of the defendant “in placing the cables and mats loosely and without
protection of the pedestrians over the midway.” (Id.). In her Petition, she alleged that the “amount
in controversy exceeds $10,000.00.” (Id. at 1). On July 6, 2016, the defendant moved to clarify
damages in accordance with Okla. Stat. tit. 12, §§ 2008(A) and 2009(H), because plaintiff failed
to comply with the requirement of § 2008(A) to provide in her Petition a “demand for judgment”
stating whether she sought damages “in excess of the amount required for diversity jurisdiction”
(in excess of $75,000.00). Plaintiff then moved to strike the defendant’s motion to clarify
damages. In her motion to strike, plaintiff admitted that her damages “could far exceed the Federal
jurisdictional amount of $75,000.00” such that federal subject matter jurisdiction was concurrent
with state court jurisdiction. (Doc. 2-8 at 1-2). Based on the plaintiff’s indication that she is
seeking damages that may well exceed $75,000.00, the defendant then removed this action.
Plaintiff moves to remand (Doc. 14) based on her allegation that the defendant’s removal
was untimely. Because plaintiff’s initial petition did not indicate whether she is seeking damages

in an amount that would satisfy the amount in controversy requirement of 28 U.S.C. § 1332(a), the
defendant was required to remove the action “within 30 days after receipt . . . of a copy of an
amended pleading, motion, order or other paper from which it may first be ascertained that the
case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). The plaintiff’s motion
to strike the defendant’s motion to clarify damages was the “motion . . . or other paper” from which
defendant could first ascertain that the case was removable, because plaintiff for the first time there
admitted an amount in controversy that would satisfy diversity jurisdiction requirements. That
motion to strike was filed on August 11, 2016 in the state court. (Doc. 2-8). Defendant filed the
Notice of Removal (Doc. 2) on August 26, 2016, which was 15 days after the filing of plaintiff’s
motion to strike. The removal was thus timely under § 1446(b)(3).
IT IS THEREFORE ORDERED that plaintiff’s Motion to Remand to State Court (Doc.
14) is denied. Plaintiff’s Motion to Strike the defendant’s motion to clarify damages (Doc. 10) is
also denied. Both of those filings by plaintiff were frivolous attempts to avoid removal and dodge
compliance with the straightforward pleading requirements set forth in Oklahoma law. Such
gamesmanship will not be tolerated in the future in this Court. Because the amount in controversy
exceeds the jurisdictional threshold, defendant’s Motion to Clarify Damages (Doc. 8) is moot.1
SO ORDERED this 13th day of January, 2017.

The Court’s determination that the Motion to Clarify Damages is moot shall not be
construed as denying defendant the right to conduct discovery regarding plaintiff’s damages. To
be clear, discovery may be conducted on the issue of plaintiff’s damages, and this Order does not
alter the plaintiff’s obligations with respect to initial disclosures relating to damages.
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