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Miller v. Wal-Mart Stores East, LP

United States District Court, S.D. Alabama, Southern Division

November 16, 2017

WAL-MART STORES EAST, LP, et al., Defendants.



         This matter is before the Court on the plaintiff's motion to remand. (Doc. 10). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 10, 12, 13, 15), and the motion is ripe for resolution. After careful consideration, the Court concludes the motion is due to be granted.


         The plaintiff filed suit against the original defendant (“Wal-Mart”) and various fictitious defendants on August 11, 2015. The complaint alleged a single claim of negligence based on the plaintiff's April 2014 slip-and-fall at Wal-Mart's establishment. The complaint identified the plaintiff's damages as injuries to her elbow, knee and back, medical expenses, pain and suffering, mental anguish, permanent injury and impaired ability to earn a living. The ad damnum clause demanded damages “less than the sum or value of $73, 000.” (Doc. 1-1 at 2-4). In September 2015, the plaintiff responded to Wal-Mart's requests for admission. Therein, the plaintiff admitted that the most she was seeking to recover was $73, 000, that there was no evidence (and would be no evidence) to support an award over $73, 000, and that the proper measure of damages did not exceed $73, 000. (Doc. 1-4 at 4-5). Based on the ad damnum clause and the plaintiff's admissions, Wal-Mart did not seek to remove the action.[1]

         The plaintiff also responded to Wal-Mart's interrogatories and requests for production in September 2015. The plaintiff produced 114 pages of medical bills and records. (Doc. 10-3 at 17-130). In response to interrogatories seeking information regarding the damages claimed and an itemization of medical expenses as to which she intended to request damages, the plaintiff referred Wal-Mart to the produced medical bills and records. (Id. at 7, 8). Those bills and records did not on their face reflect damages in excess of $75, 000.

         Medical treatment and bills that the plaintiff attributes to the April 2014 incident continued to mount after her initial discovery responses, including a second surgery in March 2016. In April 2016, the plaintiff served her first supplemental responses to Wal-Mart's interrogatories and requests for production. (Doc. 10-4). Attached were additional medical bills and records. (Id. at 22-42). The plaintiff also amended her answer to the interrogatory asking for “[a]n itemization of the damages claimed.” She stated that she “will claim all damages to which she is entitled to under the laws of the State of Alabama. These damages will includ[e] but not be limited to the following medical bills.” The plaintiff then listed four physicians, two hospitals and a physical therapy center, with a dollar amount by each. The plaintiff then stated the “[t]otal at present time” as the sum of these seven figures: $101, 533.04. (Id. at 9). Wal-Mart did not remove the action and took no steps to clarify the inconsistency between this response and the plaintiff's earlier admissions and ad damnum clause.

         The complaint identified the fictitious defendants as the entities “which owned and/or were responsible for maintenance of the premises where Plaintiff fell.” (Doc. 1-1 at 2). In June 2016, the plaintiff learned through discovery that National Flex, LLC (“Flex”) answered this description. On August 23, 2016 (one year and twelve days after suit was filed), the plaintiff filed an amended complaint naming Flex as a second defendant. The amended complaint also added a cause of action for wantonness and replaced the previous demand for less than $73, 000 with an indeterminate demand for an amount, above the state court jurisdictional threshold, to be determined by the jury. (Doc. 1-2 at 77-81). The parties agree that Flex, like the plaintiff, is a citizen of Alabama.

         In July 2017, the plaintiff served amended responses to Wal-Mart's requests for admission, changing all her admissions to denials. (Doc. 10-5). Wal-Mart removed this action, with Flex's consent, approximately two weeks after being served with the plaintiff's amended responses.


         The plaintiff offers three grounds for remand: (1) the removal is untimely, because it was accomplished more than one year after suit was filed; (2) the amount in controversy does not exceed the jurisdictional threshold, because that determination is made as of the lawsuit's filing in August 2015; and (3) the parties are not completely diverse, because the plaintiff and Flex are both citizens of Alabama. As the Court finds the plaintiff's first argument dispositive, it does not address the others.[2]

         In general, removal based on diversity must occur within one year after the action was commenced. 28 U.S.C. § 1446(c)(1). Wal-Mart relies on the statutory exception to this rule: removal after one year is untimely “unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” Id. Moreover, if “the district court finds that the plaintiff deliberately failed to disclose the actual amount in controversy in order to prevent removal, that finding shall be deemed bad faith under paragraph (1).” Id. § 1446(c)(3)(B). Wal-Mart does not dispute that it bears the burden of demonstrating the plaintiff's bad faith.[3]

         As noted, this action was commenced in August 2015. As also noted, the plaintiff explicitly stated in discovery responses served in April 2016 that she “claim[s]” over $100, 000 in damages. Wal-Mart insists the plaintiff thereby “failed to inform Wal-Mart of her intent to seek such damages above $73, 000, ” (Doc. 12 at 15), but the suggestion is patently untenable; one cannot “claim” damages without intending to seek them.

         Wal-Mart next asserts that, even though the plaintiff expressly claimed over $100, 000 in damages, it was forbidden to seek removal because both the ad damnum clause and the plaintiff's admissions remained unamended, and the representations in those documents were “conclusive” as to the amount in controversy. (Doc. 1 at 6, 8, 9 & n.6; Doc. 12 at 15, 16, 18-19). Wal-Mart is mistaken.

         For purposes of removal, “the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy, except that … the notice of removal may assert the amount in controversy if the initial pleading seeks … a money judgment, but the State practice … permits recovery of damages in excess of the amount demanded ….” 28 U.S.C. § 1446(c)(2)(A). Alabama is such a state. Breland v. Ford, 693 So.2d 393, 397 (Ala. 1996) (“It is well settled that a litigant seeking general damages for personal injuries, such as compensation for physical pain and suffering, may recover an amount in excess of the amount contained in the ad damnum clause of the complaint.”). This Court and others have so ruled. Burns v. Windsor Insurance Co., 31 F.3d 1092, 1097 n.11 (11th Cir. 1994); Harris v. Aghababael, 81 F.Supp.3d 1278, 1281 (M.D. Ala. 2015); Abner v. United States Pipe & Foundry Company, 2017 WL 553135 ...

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