Lee v. Food Lion, LLC
Filing
13
OPINION AND ORDER OF REMAND - the Court FINDS that the defendant's notice of removal, filed on August 31,2012, was untimely. Therefore, the Court GRANTS the plaintiff's motion to remand, and this action is REMANDED to the Circuit Court for the City of Hampton, Virginia, for further proceedings in the case styled there as Lee v. Food Lion Stores, Inc., Civil No. CL11-2422. Signed by District Judge Robert G. Doumar and filed on 2/13/13. (jcow, )
IN THE UNITED STATES DISTRICT COURT
FlLED
Newport News Division
FEB 1 3 2013
FOR THE EASTERN DISTRICT OF VIRGINIA
CLERK, US DISTRICT COURT
TYRONE LEE,
Plaintiff,
NORFOLK, VA
Civil No. 4:12cvl42
v.
FOOD LION, LLC,
t/a Food Lion #1299,
Defendant.
OPINION AND ORDER OF REMAND
This matter is presently before the Court upon the plaintiffs motion to remand this action to
state court. For the reasons set forth herein, the Court GRANTS the plaintiffs motion and
REMANDS this action to the Circuit Court for the City of Hampton, Virginia, for further
proceedings in the case styled there as Lee v. Food Lion Stores, Inc., Civil No. CL11-2422.
I. BACKGROUND
The plaintiff, proceeding pro se, filed the complaint in this action in the Circuit Court for the
City of Hampton on November 18, 2011, naming "Food Lion Stores, Inc." as the defendant. The
plaintiff alleged that he slipped and fell on a wet floor while shopping at a Food Lion store in
Hampton, Virginia, suffering "serious" but unidentified "injuries ofboth body and mind" as a result,
and requesting damages in the amount of $1 million. The plaintiffmailed a copy ofthe complaint to
Risk Management Services, Inc. of Salisbury, North Carolina.
On December 21,2011, the defendant filed an answer and demurrer to the complaint in state
court, noting its appearance as "Food Lion Stores, Inc. (correctly 'Food Lion, LLC')" in both papers.
In both the answer and the demurrer, the defendant contended that the plaintiffs pro se complaint
failed to state a claim, and that it was fatally defective as it contained no ad damnum clause.
On March 30, 2012, the state court held a hearing on the defendant's demurrer. At the
hearing, it was revealed that the copy of the complaint received by the defendant—or at least the
copy ultimately forwarded to counsel for the defendant—was missing the page containing the
plaintiffs demand for $1 million in damages. The state court judge handed over his file, includinga
complete copy of the complaint as filed with the court, for defense counsel to peruse. Counsel for
the defendant acknowledged, on the record, that the complaint filed in the state court's record
included an ad damnum clause demanding $1 million in damages. At the conclusion ofthe hearing,
the court advised the parties that it was inclined to sustain the demurrer for failure to state a claim
and grant leave for the plaintiff to re-file the action on or before June 1, 2012. The state court
instructed counsel for the defendant to submit a proposed written order to that effect.
No written order sustaining the demurrer having been entered by the state court, the
plaintiff, now represented by counsel of record in this matter, filed a motion for leave to file an
amended complaint on May 9, 2012. A hearing on the motion was held on July 13, 2012, and the
state court entered an order that same day, granting the plaintiff leave to file an amended complaint
within twenty-one days.
On August 3,2012, the plaintiff, through counsel, filed his amended complaintin statecourt.
Among other changes, the amended complaint named"Food Lion, LLCt/a FoodLion#1299"as the
defendant. On August 23, 2012, the defendant filed its answer to the amended complaint. On
August 31, 2012, the defendant removed the matter to this Court pursuant to 28 U.S.C. § 1441,
citing the Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. On September 20, 2012, the
plaintiff timely moved to remand the case to state court.
1Itis unclear from therecord before this Court whether a proposed written order was infact
submitted for the state court's consideration, but that particular fact is immaterial to this decision.
II. ANALYSIS
The plaintiff has moved to remand this action to state court on the ground that the
defendant's removal of this case was untimely. In opposition to the motion, the defendant argues
that its notice ofremoval, filed within thirty days after receipt ofthe plaintiffs amended complaint,
was timely because: (1) diversity ofcitizenship was not apparent until the plaintiff filed his amended
complaint with the defendant's correct corporate name; and (2) the amount in controversy was not
apparent to the defendant until the plaintiff filed his amended complaint because the page of the
original complaint containing the ad damnum clause was missing from the copy served on the
defendant.
Under 28 U.S.C. § 1441(a), a defendant may remove an action filed in state court to a federal
court with original jurisdiction over the action. Once removed, the plaintiff may challenge removal
by moving to remand the case back to state court. "The defendant bears the burden of proof in a
removal action. Moreover, removal statutes are to be construed strictly, narrowly, and against
removal." Kurihara v. CH2M Hill. Inc., 6 F. Supp. 2d 533,534 (E.D. Va. 1998) (citations omitted).
The procedure for removal is set forth in 28 U.S.C. § 1446(b). In pertinent part, this statute
provides that "[t]he notice of removal of a civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or otherwise, of a copy of the initial
pleading ... ." 28 U.S.C. § 1446(b)(1). In some cases, it may not be apparent from the face of the
initial pleading that a case is removable. In such cases, the statute further provides that "a notice of
removal may be filed within 30 days after receipt by the defendant, through service or otherwise, 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). It is important to
note that "§ 1446(b) does not allow a defendant to file a notice of removal within thirty days of any
amended pleading, motion, order, or other paper revealing grounds for removal. The defendant must
file its notice within thirty days of receiving any paper first revealing grounds for removal."
Wingfield v. Franklin Life Ins. Co.. 41 F. Supp. 2d 594,598 (E.D. Va. 1999) (emphasis in original);
see also Kurihara. 6 F. Supp. 2d at 535 (noting that this Court has adopted the "receipt rule" for
computing time in which a defendant must remove a case to federal court).
A. Misnamed Defendant
The defendant first contends that removal of this case to federal court on August 31, 2012,
was timely because notice of removal was filed within thirty days after its receipt of the plaintiffs
amended complaint, filed in the state court on August 3, 2012. The defendant argues that it was
unable to establish diversity of citizenship prior to the filing of the amended complaint because the
original complaint named a non-existent entity, "Food Lion Stores, Inc.," rather than the correct
defendant, "Food Lion, LLC." But this argument is entirely without merit.
It is well-established that, in determining diversity of citizenship between the parties, "a
federal court must disregard nominal or formal parties and rest jurisdiction only upon the citizenship
of real parties to the controversy." Navarro Sav. Ass'n v. Lee, 446 U.S. 458, 461 (1980). Faced
with similar facts, federal courts have, time and again, "rejected a corporation defendant's claim that
its removal was timely because the original state court complaint named the wrong defendant (a non
entity) and the case was not removable until such time that the plaintiff amended the complaint to
name the correct entity." Hillberrv v. Wal-Mart Stores East, L.P., No. 3:05CV-63-H, 2005 WL
1862087, at *1 (W.D. Ky. Aug. 3, 2005) (defendant Wal-Mart Stores East, L.P., was real-party-ininterest where original complaint named entity styled "Wal-Mart" as defendant); see also Ware v.
Wvndham Worldwide Inc., No. 09-6420, 2010 WL 2545168, at *4-*5 (D.NJ. June 18, 2010)
(original complaint named related company instead of the proper defendant); Brown v. N.J. Mfrs.
Ins. Group, 322 F. Supp. 2d 947, 952-53 (M.D. Tenn. 2004) (original complaint named wrong
company within closely-related group of insurance companies); Iulianelli v. Lionel, L.L.C., 183 F.
Supp. 2d 962,968 (E.D. Mich. 2002) (original complaint improperly named corporate predecessor to
proper defendant); Brizendine v. Continental Cas. Co.. 773 F. Supp. 313,315-16 (N.D. Ala. 1991)
(original complaint used a trade name rather than true name of the defendant insurance company);
Jacobson v. Holiday Travel. Inc.. 110 F.R.D. 424, 426 (E.D. Wis. 1986) (original complaint used
defendant's former corporate name). "[W]hen the intended defendant receives formal process and
ascertains or should reasonably ascertain that it is the intended defendant, the intended defendant's
thirty-day window begins upon service of the initial complaint." Ware, 2010 WL 2545168, at *4;
see also Hillberry, 2005 WL 1862087, at *1 ("[I]f the proper defendant company is on notice that the
wrong company defendant has been named [it] has a duty to remove nonetheless.").
In this case, it is undisputed that the defendant received a copy of the initial pleading in this
action at some point prior to December 21,2011, the date on which it filed its answer and demurrer
in state court proceedings. In the opening sentence of both the answer and the demurrer, and then
again in the signature block of these same pleadings, the defendant identified itself as "Defendant,
Food Lion Stores, Inc. (correctly 'Food Lion, LLC')." Cf Ware, 2010 WL 2545168, at *1
("Defendant, Wyndham Vacation Resorts, Inc. (incorrectly named in the complaint as Wyndham
Worldwide Incorporated)"). It is clear on this record that the defendant received a copy of the
original complaint and that it actually ascertained that Food Lion, LLC, was the intended defendant
of the lawsuit, prompting it to answer and demur on December 21, 2011.
Accordingly, the plaintiffs error in naming the defendant in the original complaint as "Food
Lion Stores, Inc."
instead of "Food Lion, LLC," provides no relief from the operation of
§ 1446(b)(1), which ordinarily requires notice of removal to be filed within thirty days after the
defendant's receipt of the initial pleading.
B. Amount in Controversy
The defendant further contends that removal of this case was timely because the copy of the
original complaint served on the defendant was missing the page containing the plaintiffs ad
damnum clause, and thus the thirty-day window for removal did not commence until the defendant's
receipt, "through service or otherwise, 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). Although counsel for the defendant learned of the plaintiffs $1 million
damages demand at a March 30,2012, hearing on the defendant's demurrer, the defendant suggests
that it was unable to ascertain the amount in controversy until the amended complaint was filed on
August 3,2012. See Wingfield, 41 F. Supp. at 598 n.4 ("[I]n order for the thirty-day period to start
running, the grounds for removal must 'be apparent within the four corners ofthe initial pleading or
subsequent paper.'") fquoting Lovern v. Gen. Motors Corp., 121 F.3d 160,162 (4th Cir. 1997)). But
this argument too is without merit.
The removal procedure statute, as amended by the Federal Courts Jurisdiction and Venue
Clarification Act of 2011, Pub. L. No. 112-63, § 103(b), 125 Stat. 760-61, provides that "[i]f the
case stated by the initial pleading is not removable solely because the amount in controversy does
not exceed the amount specified in section 1332(a), information relating to the amount in
controversy in the record ofthe State proceeding, or in responses to discovery, shall be treated as an
'other paper' under subsection (b)(3)." 28 U.S.C. § 1446(c)(3)(A). Indeed, even before this
amendment was adopted by Congress, the Fourth Circuit had held that "[t]he 'motion, order or other
paper' requirement is broad enough to include any information received by the defendant 'whether
communicated in a formal or informal manner.'" Yarnevic v. Brink's, Inc., 102 F.3d 753,755 (4th
Cir. 1996).
On March 30,2012, counsel for the defendantlearned,whileappearing on the record in open
court, that the complaint on file in the state court's record contained an additional page in which the
plaintiff demanded an award of $1 million in damages. The state trial judge handed a copy ofthe
complete complaint, as it existed in the state court's record, to counsel for the defendant. Counsel
reviewed the complete complaint in hand and acknowledged, on the record, that it contained an ad
damnum clause demanding $1 million in damages. Although the omission of this page in the
defendant's service copy ofthe original complaint may have made it impossible for the defendant to
ascertain the amount in controversy upon its initial receipt ofthe original complaint, on March 30,
2012, counsel for the defendant received "information relating to the amount in controversy" which
was already"in the recordofthe State proceeding." See 28 U.S.C. § 1446(c)(3)(A). Pursuant to the
removal procedure statute, receipt of this information by defense counsel constituted receipt of
"other paper from which it may first be ascertained that the case is one which is or has become
removable," thus triggering the defendant's thirty-day window for removal on that day. See 28
U.S.C. § 1446(b)(3). The fact that the defendant was not formally served with an amended
compliant setting forth the amount in controversy until August 2012 is immaterial. See Yarnevic,
102 F.3d at 755 (informal communication ofamount in controversy may constitute receipt of"other
paper" triggering thirty day removal period); Kurihara, 6 F. Supp. 2d at 535 (thirty day removal
period triggered by receipt rather than formal service).
The defendant did not file its notice ofremoval in this case until August 31,2012, a full five
months after it learned that the plaintiffs complaint included a $1 million ad damnum clause.
Accordingly, the defendant's notice of removal was untimely filed.
III. CONCLUSION
Based on the foregoing, the Court FINDS that the defendant's notice of removal, filed on
August 31,2012, was untimely. Therefore, the Court GRANTS the plaintiffs motion to remand,
and this action is REMANDED to the Circuit Court for the City of Hampton, Virginia, for further
proceedings in the case styled there as Lee v. Food Lion Stores, Inc., Civil No. CL11-2422.
The Clerk ofthis Court is DIRECTED to mail a certified copy ofthis Opinion and Order of
Remand to the Clerk of the Circuit Court for the City of Hampton, Virginia. See 28 U.S.C.
§ 1447(c).
IT IS SO ORDERED.
n
February |&,2013
Norfolk, Virginia
RobertG.DouihL-ju^--
Senior United St^bistnct Judge
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