TYSON v. SCHINDLER ELEVATOR CORPORATION et al

Filing 6

MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION TO REMAND IS DENIED; ETC.. SIGNED BY HONORABLE C. DARNELL JONES, II ON 5/11/17. 5/12/17 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DONNA TYSON,
Plaintiff,
v.
SCHINDLER ELEVATOR CORP., et al.
Defendants.

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CIVIL ACTION
NO. 16-5197

ORDER – MEMORANDUM
AND NOW, this 11th day of May, 2017, upon consideration of Plaintiff’s Motion
to Remand (Dkt No. 4), and Defendant’s Response in Opposition thereto (Dkt No.5), it is hereby
ORDERED that said Motion is DENIED. Defendant shall file an answer to Plaintiff’s Amended
Complaint within twenty-one (21) days of the filing of this Order.
ANALYSIS
I.

Relevant Facts

Plaintiff alleges that she sustained serious injuries to her right shoulder while shopping at
the J.C. Penney located in Willow Grove, Pennsylvania. (Am. Com., ¶ 17). While descending the
store escalator, Plaintiff claims that her pocketbook became somehow ensnared and that as a
result, Plaintiff was suddenly and forcibly jerked backward. (Am. Com., ¶ 17). Plaintiff initially
filed her claim in the Philadelphia County Court of Common Pleas, where the case was
designated a “Major Case” seeking damages in excess of $50,000.00. (Am. Com., 1). In her
Complaint and subsequently filed Amended Complaint, Plaintiff indicates that her present and
future earning capacity has been negatively impacted as a result of her injury, and that she
experiences consistent pain, embarrassment, and a general loss of the enjoyment of life. (Am.
Com., ¶ 21, 25, 29). In the Amended Complaint, Plaintiff avers that she “has expended and she
may continue to expend, large sums of money for medical and surgical attention, hospitalization,

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medical supplies, surgical appliances, medicines, and attendant services.” (Am. Com., ¶ 21, 25,
29). Prior to removal and in response to discovery requests, Plaintiff furnished Defendants with,
inter alia, statements from at least two doctors who concluded that the injuries Plaintiff sustained
were serious and largely permanent. Plaintiff’s claim for damages is not a sum certain, but
Plaintiff’s settlement demand – as of July 2016 – was for $275,000.00 (N.O.R., Ex. C).
Defendants timely removed the present action to the United States District Court for the
Eastern District of Pennsylvania, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).
(N.O.R., ¶ 20). Plaintiff maintains that the amount sought in her Amended Complaint reflected
her belief that she would need to undergo surgery on her shoulder. (Mot., ¶ 6). Since the filing of
Defendants’ Notice of Removal, Plaintiff claims that she has received the opinion of two
orthopedic physicians who advise against surgery, and as a result thereof, Plaintiff believes that
her claim is not worth the $75,000.00 required for federal diversity jurisdiction. (Mot., ¶ 7, 11).
Plaintiff therefore filed the present Motion to Remand, which the Court considers herein.
II.

Discussion

Except as otherwise provided by an Act of Congress, a defendant can remove any case
over which the district courts of the United States have original jurisdiction. 28 U.S.C. § 1441(a).
Pursuant to 28 U.S.C. § 1332(a), this Court has subject matter jurisdiction over cases in which
the parties are citizens of different states and the amount in controversy exceeds $75,000.00.
Plaintiff does not dispute the diversity of citizenship between the parties, but asserts that her
claim can no longer meet the monetary threshold necessary to support federal jurisdiction.
As a general matter, federal courts glean the amount in controversy from the complaint
itself. See Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir. 1993) (“The general federal rule is to
decide the amount in controversy from the complaint itself.”); Frederico v. Home Depot, 507
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F.3d 188, 194 (2007) (“In removal cases, determining the amount in controversy begins with a
reading of the complaint filed in state court.”); Werwinski v. Ford Motor Co., 286 F.3d 661, 666
(3d Cir. 1961) (holding that the court’s determination of the amount in controversy “must be
based on the plaintiff’s complaint at the time the petition for removal was filed.”). Once the
defendant successfully removes a case, events that occur subsequent to removal and reduce the
amount recoverable do not automatically divest the district court of jurisdiction. St. Paul
Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289-290 (1938). Instead, a case
appropriately removed to the district court will only be dismissed if “from the face of the
pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed,
or if, from the proofs, the court is satisfied to a like certainty that the plaintiff was never entitled
to recover that amount….” Id. at 289. The legal certainty test of Red Cab is applicable wherever
the relevant facts of the case are undisputed. Federico v. Home Depot, 507 F.3d 188, 194 (2007)
(citing Samuel-Basset v. Kia Motors America, Inc., 357 F.3d 392, 398 (3d Cir. 2006)).
As Defendants’ arguments for federal jurisdiction are based on the Amended Complaint
and Plaintiff’s discovery responses, there is no indication that the relevant facts are in dispute in
the instant case. See e.g., Frederico, 507 F.3d at 198 (“[Defendant’s] argument for jurisdiction is
based on allegations made initially by [Plaintiff] herself. Accordingly, the present posture of the
case is one where the relevant facts are not expressly in dispute between the parties.”).
Defendants rely on the facts as Plaintiff alleges them and nothing in Plaintiff’s Motion to
Remand suggests that Plaintiff contests her previous averments regarding the severity of her
injury or how said injury was sustained. Juxtaposing Plaintiff’s present position and that which
she expressed in the Amended Complaint, all that appears to have changed is Plaintiff’s belief

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that she would need to undergo surgery. (Mot.,¶ 6). As such, this Court finds that the relevant
facts are undisputed, and the legal certainty test of Red Cab controls.
In the present instance, remand would only be appropriate if (1) from the face of the
Amended Complaint, it is apparent to a legal certainty, that Plaintiff cannot recover an award
beyond the $75,000.00 threshold of 28 U.S.C. § 1332(a); or (2) if it is similarly apparent from
the “proofs” that Plaintiff was never entitled to recover at least $75,000.00. Reviewing Plaintiff’s
Amended Complaint, this Court is unable to find, to a legal certainty, that Plaintiff cannot
recover at least $75,000.00. In the Amended Complaint, Plaintiff avers that her pain is significant
and persistent; she has and may continue to expend large sums of money to treat her injury and
reduce her pain; her earning potential has been impaired; she may be disfigured; and she
experiences emotional distress. That Plaintiff may require surgery appears, from the face of the
pleadings, to be just one consideration of many that factored into Plaintiff’s demand for
damages. Even if surgery is no longer a concern – a fact of which this Court is not certain
because Plaintiff failed to include the opinion of any doctor so advising – there are still sufficient
claims upon which Plaintiff could possibly recover more than $75,000. Thus, the pleadings
themselves do not make it apparent to this Court, to a legal certainty, that Plaintiff is unable to
recover an award in excess of the jurisdictional limits.
The proofs available are similarly unable to persuade this Court that Plaintiff‘s claim
should be remanded. Because Plaintiff fails to provide this Court with the opinion of any doctor
that advises against surgery or otherwise suggests a decrease in the value of Plaintiff’s claim, this
Court only has the proofs attached to Defendants’ Notice of Removal from which to decide the
propriety of remand. Attached to Defendant’s Notice of Removal are Plaintiff’s medical records

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and the reports of numerous physicians who examined Plaintiff following her alleged injury in
J.C. Penney. The report of Dr. Sedacca reads, in relevant part:
Prognosis for complete recovery must be listed [as] guarded
primarily based upon the permanency of injury…This injury does
constitute a serious and permanent impairment of bodily function
for the patient regarding full use of her right shoulder and right arm
and will continue to place her at greater risk for further injury in
the future as well. As such, I can state with reasonable medical
certainty that as result of this right shoulder injury from the
accident of September 7, 2014, Ms. Tyson is no longer enjoying
the same lifestyle, level of comfort, or level of activity involving
the full use of her right should and right arm to which she was
accustomed prior to this injury. Furthermore, from review of the
medical records, all treatments and evaluations rendered were
medically necessary to treat her and were solely related to the
injury sustained on September 7, 2014.
(N.O.R., Ex. E)
The court examined Dr. Sedacca’s report, that of the other examining physicians who
similarly opined that Plaintiff’s shoulder injury was significant and largely permanent, and the
rest of the attached medical records related to Plaintiff’s treatments and evaluations in the
aftermath of her alleged injury. Having so reviewed, this Court is unable to conclude that the
proofs indicate an inability for Plaintiff to recover in excess of the $75,000.00 necessary to
justify removal. It is thus not apparent to a legal certainty, either from the face of the pleadings or
from the proofs available to the court as of the filing of this Order, that the amount in
controversy is below jurisdictional limits. It would be improper to grant Plaintiff’s Motion to
Remand.
Attached to Plaintiff’s Motion for Remand is a “Stipulation Regarding Damages,” in
which Plaintiff appears to “stipulate and agree to reduce [her] claim for damages to less than

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$75,000,” but that has no bearing on the Court’s decision here. See Angus, 989 F.2d at 145 (“As
an initial matter, we note that [Plaintiff’s] stipulation that her damages do not exceed [the
jurisdictional limit] has no legal significance because a plaintiff following removal cannot
destroy federal jurisdiction simply by amending a complaint that initially satisfied the monetary
floor.”). While the removal statute has been held to militate against removal, Echevarria v.
Schindler Elevator Corp., 2015 U.S. Dist. LEXIS 10341 *1, *15 (E.D. Pa 2015), “[i]f the
plaintiff could, no matter how bona fide his original claim in the state court, reduce the amount
of his demand to defeat federal jurisdiction[,] the defendant’s supposed statutory right of removal
would be subject to the plaintiff’s caprice. The claim, whether well or ill found in fact, fixes the
right of the defendant to remove, and the plaintiff ought not to be able to defeat that right and
bring the cause back to the state court at his election.” Red Cab, 303 U.S at 294. In accordance
with the test set forth in Red Cab, this Court finds that remand is inappropriate in the present
instance. It is not apparent, to a legal certainty, from the face of the pleadings that Plaintiff could
not recover at least $75,000.00, and the limited proofs available all weigh against remand.

BY THE COURT:
/s/ C. Darnell Jones, II
C. DARNELL JONES, II

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J.