Karnes v. Outback Steakhouse of Florida, LLC, et al.

Filing 23

MEMORANDUM OPINION AND ORDER denying plaintiff's 4 MOTION to Remand. Signed by Senior Judge David A. Faber on 7/5/2016. (cc: counsel of record and unrepresented parties) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD DIVISION
LINDA KARNES,
Plaintiff,
v.

Civil Action No. 1:15-13441

OUTBACK STEAKHOUSE OF
FLORIDA, LLC, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s motion to remand
(ECF No. 4).

For the reasons expressed below, plaintiff’s motion

is DENIED.
I.

Background
This civil action, which was originally filed in the Circuit

Court of Mercer County, West Virginia, on March 4, 2015, arises
out of a slip and fall accident occurring on March 7, 2013, at an
Outback Restaurant in Princeton, West Virginia.

Named as

defendants are Outback Steakhouse West Virginia, Inc.1, Outback
Steakhouse of Florida, LLC, and John or Jane Doe 1 and 2, the
unidentified general manager and shift manager for Outback.
Specifically, plaintiff Linda Karnes alleges that “through no
fault of her own, Plaintiff slipped on a liquid substance that
was located upon the slick non-slip resistant floor of the

1

Prior to removal, Outback Steakhouse West Virginia was
dismissed from the lawsuit.

premises causing the Plaintiff to fall to the floor and suffer
severe injuries as described below.”

Complaint ¶ 11.

Karnes

alleges that, as a result of her fall, she has “sustained severe
and debilitating injuries” which have caused her “to incur
agonizing physical pain and suffering and significant medical
expense, past and future, for necessary medical treatment of her
injuries, loss of wages and other general and compensable
damages.”

Id. at ¶¶ 15 and 16.

In her Complaint, plaintiff

seeks the following relief:
(a)

Compensatory damages for past and future
hospital and medical bills and other
compensatory damages allowed by law;

(b)

General damages for past and future physical
pain, emotional suffering, humiliation,
embarrassment, permanent injury, loss of
enjoyment of life, and other general damages
allowed by law;

(c)

Exemplary damages should the facts warrant
the same;

(d)

Prejudgment and post-judgment interest;

(e)

Damages for past and future miscellaneous
out-of pocket and related expenses;

(f)

Attorney fees and the cost of this action;
[and]

(g)

Such other relief to which Plaintiffs may be
entitled and which this Court may deem just
and proper.

Id. Prayer for Relief.
Pursuant to the provisions of 28 U.S.C. § 1446, defendant
Outback Steakhouse of Florida LLC (“Outback”) filed a notice of
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removal to this court on September 24, 2015, on the basis of
diversity of citizenship.

On October 23, 2015, plaintiff filed

the instant motion to remand.

On November 6, 2015, Outback filed

a memorandum in opposition to the motion to remand.

As plaintiff

did not file a reply, this motion is ripe for adjudication.
II.

Removal Jurisdiction
Civil actions brought in state court may only be removed to

federal court if the federal court has “original jurisdiction”
over the action.

28 U.S.C. § 1441(a).

The removing defendant

bears the burden of demonstrating that the federal district court
has jurisdiction.

Mulcahey v. Columbia Organic Chems. Co., 29

F.3d 148, 151 (4th Cir. 1994).

Furthermore, because removal

raises federalism concerns, the court must carefully scrutinize
the facts to ensure that removal is appropriate and resolve any
doubt about the propriety of removal in favor of remanding to
state court.

See id.

Federal district courts may exercise original jurisdiction
over civil actions constituting a diversity of citizenship where
the matter in controversy exceeds the sum or value of $75,000 and
is between citizens of different states.
1332(a)(1).

See 28 U.S.C. §

A defendant may remove a case from state court to

federal court when the defendant can show by a preponderance of
the evidence that the federal court has jurisdiction.

28 U.S.C.

§ 1441, known as the “removal statute,” provides that a case

3

filed in state court can be removed to federal court when it is
shown by the defendant that the federal court has jurisdiction.
See Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151
(4th Cir. 1994) (providing that defendant has the burden of proof
to show jurisdiction of the federal court).
If a defendant chooses to remove an action from state court
to federal district court, it must file a notice of removal
containing a short and plain statement of grounds for removal
within thirty days of the case becoming removable.
§ 1446(a).

28 U.S.C.

Because removal raises federalism concerns, the court

must carefully scrutinize the facts to ensure that removal is
appropriate.

Mulcahey, 29 F.3d at 151 (citing Shamrock Oil & Gas

Corp. v. Sheets, 313 U.S. 100 (1941)).

Defendant bears the

burden of establishing that removal is appropriate.

Landmark

Corp. v. Apogee Coal Co., 945 F. Supp. 932, 935 (S.D.W. Va.
1996).
With respect to the amount in controversy, the removing
party must show, by a preponderance of the evidence, that the
amount in controversy exceeds $75,000.

See White v. Chase Bank

USA, NA, Civil Action No. 2:08–1370, 2009 WL 2762060, at *1
(S.D.W. Va. Aug. 29, 2009) (citing McCoy v. Erie Ins. Co., 147 F.
Supp. 2d 481, 488 (S.D.W. Va. 2001)).

Under the preponderance of

the evidence standard, a party must show that it is “more likely
than not” that the amount in controversy satisfies the

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jurisdictional limit.

Judy v. JK Harris & Co. LLC, et al., 2011

WL 4499316, Civil Action No. 2:10–cv–01276, at *3 (S.D.W. Va.
Sept. 27, 2011) (citing Landmark Corp. v. Apogee Coal Co., 945 F.
Supp. 932, 935 (S.D.W. Va. 1996)).

But, as the court has noted

before, it need not leave its common sense behind when applying
these principles.

Mullins v. Harry's Mobile Homes, 861 F. Supp.

22, 24 (S.D.W. Va. 1994).
In considering whether the jurisdictional amount is
satisfied, the court looks to a variety of factors including:
the type and extent of the plaintiff’s
injuries and the possible damages recoverable
therefore, including punitive damages if
appropriate. The possible damages
recoverable may be shown by the amounts
awarded in other similar cases. Another
factor for the court to consider would be
expenses or losses incurred by plaintiff up
to the date the notice of removal was filed.
The defendant may also present evidence of
any settlement demands made by the plaintiff
prior to removal . . . .
McCoy v. Erie Ins. Co., 147 F. Supp. 2d 481, 486 (S.D.W. Va.
2001).
III.

Analysis
Diversity of citizenship
Plaintiff contends that defendant has failed to meet its

burden of showing this matter is between citizens of different
states because “at least one of the Defendants is believed to be
a resident of the State of West Virginia and all Defendants have

5

not filed a Petition to remove this action to Federal Court.”
Memorandum of Law in Support of Motion to Remand at p. 1 (ECF No.
5).

According to plaintiff, “[h]ere the store manager and shift

manager have not been disclosed but are included as parties to
this suit. . . .

Once this information is disclosed Plaintiff

believes that this case will not be a removable civil action to
Federal Court.”

Id. at p. 5.

There is no merit to plaintiff’s argument that removal was
improper because the John Doe defendants did not join in the
notice of removal.

According to 28 U.S.C. § 1446, “[w]hen a

civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in
or consent to the removal of the action.”
1446(b)(2)(A) (emphasis added).

28 U.S.C. §

At the time of removal, Outback

was the only remaining defendant who had been joined and served
and, therefore, removal was proper.

See Howze v. Foster Wheeler

Constructors & Co, Inc., Civil Action No. 07-457-FJP-DLD, 2008 WL
89658, *2 (M.D. La. Jan. 7, 2008) (denying motion to remand where
“John Doe has not been properly joined and served, and the
citizenship of fictitious defendants are not to be considered. .
. . “The court has been cited to no authority which would allow
it to consider the alleged citizenship of a still unknown and
unserved fictitious defendant, and remand the action upon such
amorphous consideration.”).

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With respect to plaintiff’s claim that diversity is lacking
because the John Doe defendants are likely West Virginia
citizens, that argument likewise fails.

28 U.S.C. § 1441(b)(1)

provides that “[i]n determining whether a civil action is
removable on the basis of the jurisdiction under section 1332(a)
of this title [diversity jurisdiction], the citizenship of
defendants sued under fictitious names shall be disregarded.”
Therefore, the alleged citizenship of the John Doe defendants
does not defeat diversity and destroy this court’s otherwise
proper exercise of jurisdiction.

See Berry v. SeaWorld Parks &

Entertainment LLC, No. 4:14cv152, 2015 WL 1119942, *2 (E.D. Va.
Mar. 11, 2015) (denying remand motion where “John Doe Employee is
sued under a fictitious name, and his citizenship is disregarded
at this stage of the proceedings.”); see also Flores v. Ethicon,
Inc., 563 F. App’x 266, 267 n.2 (4th Cir. Mar. 28, 2014) (“Flores
also names `Does 1 - 100' but the citizenship of fictitious
parties is not relevant for purposes of determining diversity
jurisdiction.”).
Amount in Controversy
Plaintiff contends that Outback has failed to meet its
burden of proving that the amount in controversy exceeds
$75,000.00.

According to Karnes, Outback’s pre-removal

settlement offer of $15,000.00 – which she contends is the only
evidence before the court – demonstrates that Outback has not

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satisfied its obligation to show by a preponderance of the
evidence that the $75,000.00 threshold has been met.

Karnes also

contends that at some point she offered to settle her claims for
$74,500.00.
In responding to the remand motion, Outback submitted a copy
of a letter from plaintiff’s attorney, dated May 8, 2015, which
demanded $93,500.00 to settle her claims with Outback.
2).

(ECF 7-

Such settlement offers are evidence the court may consider

in determining the amount in controversy.

Melton v. Precision

Laser & Instruments, Inc., Civil Action No. 2:12-cv-1697, 2012 WL
6703148, *3 (S.D.W. Va. Dec. 26, 2012) (“A court can also
consider as a factor [in determining the amount in controversy] a
plaintiff’s settlement demands prior to removal.”).

Indeed, some

courts have concluded that such demands can be dispositive.

See

Scaralto v. Ferrell, 826 F. Supp. 2d 960, 968-69 (S.D.W. Va.
2011) (holding “that a demand in excess of the jurisdictional
minimum should be treated as the amount in controversy, unless
the plaintiff shows that to a legal certainty he cannot recover
over $75,000.”).

In any event, plaintiff’s settlement demand of

$93,500.00 is certainly evidence that the amount in controversy
exceeds $75,000.00.
The demand letter also indicates that plaintiff has incurred
medical expenses in the amount of $8,535.65 and mileage expenses
in the amount of $174.06 for a total of $8,709.71 in past special

8

damages.

Karnes also contended that she would require surgery

for her knee in the future which would require a minimum of
$15,000.00.

Finally, Karnes indicated that her lost wages as of

May 8, 2015, were $26,847.00.

Therefore, by plaintiff’s own

admission, her special damages as of May 8, 2015, totaled
$50,556.71.2

Furthermore, as noted above, plaintiff alleges that

she has “sustained severe and debilitating injuries” as well as
permanent injury.

In her demand letter, in addition to the knee

surgery which she discusses in greater detail, she leaves open
the possibility that she may require back surgery as a result of
her accident.

Based on the foregoing, the court concludes that

defendant has met its burden of showing the amount of controversy
exceeds $75,000.00.
In Campbell v. Restaurants First/Neighborhood Restaurants,
Inc., the court, examining a case in which plaintiff had accrued
$18,874.51 in medical bills as of defendant’s attempt to remove,
found the amount in controversy requirement was satisfied.

303

F. Supp. 2d 797, 799 (S.D.W. Va. 2004) (“Although her medical
2

That plaintiff backed up her demand of $93,500 with
specific figures on damages that total more than $50,000 suggest
that this court should give the demand greater weight. See
Jackson v. Select Portfolio Servicing, Inc., 651 F. Supp. 2d
1279, 1281 (S.D. Ala. 2009) (“Settlement offers commonly reflect
puffing and posturing, and such a settlement offer is entitled to
little weight in measuring the preponderance of the evidence. On
the other hand, settlement offers that provide specific
information to support the plaintiff’s claim for damages suggest
the plaintiff is offering a reasonable assessment of the value of
his claim and are entitled to more weight.”).
9

bills total just shy of $20,000, when one considers the
additional elements of pain and suffering and future damages, one
can easily conclude the amount in controversy is satisfied.”).
Likewise, in Patton v. Wal-Mart Stores, Inc., No. Civ. A. 5:050655, 2005 WL 2352298, *2-3 (S.D.W. Va. Sept. 26, 2005), this
court found that the $75,000.00 amount was met even though
plaintiff’s current medical bills were only $5,000.00 because the
plaintiff would likely have to undergo surgery in the future.
See also Vaughan v. Dixon, Civil Action No. 3:09-CV-50, 2009 WL
2913617, *4 (N.D.W. Va. Sept. 8, 2009) (denying motion to remand
where, among other things, plaintiff’s medical bills and lost
wages totaled $38,800.00)
Furthermore, plaintiff concedes that she has refused to
stipulate that any potential recovery would be limited to
$75,000.00.

Courts often consider such refusals a significant

factor in denying motions to remand.

See Patton, 2005 WL

2352298, at 3 (denying motion to remand, in part, because
plaintiffs refused to stipulate to a maximum verdict of less than
$75,000.00); Vaughan, 2009 WL 2913617, at *5 (same).
Looking at the totality of the circumstances surrounding
this case, the court finds that defendant has met its burden of
showing by a preponderance of the evidence that this case meets
the amount-in-controversy requirements associated with diversity

10

jurisdiction.3
$93,500.00.

Plaintiff’s demand letter values her claim at

Plaintiff’s special damages, by her own account,

already exceed $50,000.00.

Finally, plaintiff’s refusal to

stipulate to a maximum verdict of less than $75,000.00 is also
further evidence that amount in controversy, more likely than
not, exceeds $75,000.00.
IV.

Conclusion
For the reasons set forth above, the court hereby DENIES

plaintiff’s motion to remand.

The Clerk is directed to send a

copy of this Memorandum Opinion to all counsel of record and
unrepresented parties.
It is SO ORDERED this 5th day of July, 2016.
ENTER:
David A. Faber
Senior United States District Judge

3

Although the court relied on plaintiff’s settlement demand
in reaching its conclusion, it was but one factor the court
considered. Therefore, this “court need not further consider the
bright-line approach to settlement demands set forth in
Scaralto.” Melton v. Precision Laser & Instruments, Inc., Civil
Action No. 2:12-cv-1697, 2012 WL 6703148, *5 n.1 (S.D.W. Va. Dec.
26, 2012)
11