United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
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.
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
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.
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
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.
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
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.
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.
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.
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.
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 ...