United States District Court, S.D. Alabama, Northern Division
BETTY R. SHIPLEY, Plaintiff,
HELPING HANDS THERAPY, et al., Defendants.
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff Bettye R.
Shipley's Motion to Remand (Doc. 10). The motion, which
has been fully briefed, has been referred to the undersigned
Magistrate Judge for entry of a Report and Recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. CivLR
72(a)(2)(S). The Court conducted an evidentiary hearing on
March 6, 2019. (Doc. 35). Upon consideration of the
parties' briefs and the testimony and materials submitted
at the evidentiary hearing, the undersigned
RECOMMENDS that Plaintiff's Motion to
Remand be DENIED.
Factual and Procedural Posture.
Bettye R. Shipley (“Shipley” or
“Plaintiff”), commenced this action on October
12, 2017, in the Circuit Court of Hale County, Alabama. (Doc.
1-1 at 3). In her complaint, Shipley names as Defendants
Helping Hands Therapy/Greensboro Out-Patient Clinic and Sarah
Beaugez, PT. (Id.). Shipley asserts that she had a
left knee replacement and underwent prescribed physical
therapy with Helping Hands Therapy, located in Greensboro,
Alabama, to regain strength and range of motion in her left
knee. Shipley contends that, on September 8, 2016, Defendant
Sarah Beaugez, a physical therapist with Helping Hands
Therapy, forced her leg to bend to fourteen degrees beyond
her tolerance, and in so doing, caused her left knee
replacement to fail. (Id. at 3-4). Shipley contends
that she was unable to walk or do anything for two weeks,
that she is unable to walk properly and needs another
surgery, that she is in constant pain and requires daily pain
medication, and that she must use a wheel chair and a riding
buggy in order to get around places such as the grocery
store. (Id.). Shipley asserts that Beaugez acted
negligently and with wantonness, and seeks compensatory and
punitive damages. (Id.)
October 11, 2018, New Hope LLC d/b/a Helping Hands
Therapy/Greensboro Out-patient Clinic filed a Notice of
Removal. (Doc. 1). On the same date, Defendant Beaugez filed
a notice of consent and joinder in the removal. (Doc. 3).
Defendants assert the existence of complete diversity because
Shipley is a resident of Alabama; New Hope LLC is a
Mississippi corporation, with its principal place of business
in Meridian, Mississippi, and its three members are Jia Liu,
Roshanda Lankford, and Bailing Wang, residents of Georgia,
Mississippi, and Georgia respectively. (Doc. 1-2).
Defendants further contend that Defendant Beaugez was a
resident of Mississippi at the time the lawsuit was filed in
October 2017 and that she had an intent to remain there at
that time. (Doc. 1 at 3).
respect to the amount in controversy, Defendants contend that
on May 24, 2018, in response to Helping Hands'
interrogatories, Shipley claimed to be housebound for most of
the time since her injury on September 8, 2016, and that she
now requires the use of a cane and has slept in a recliner
for over two to three years. She also indicated that she had
to have another surgery in January 2018 and that she had
filed a claim for disability due to the injuries she
sustained as a result of Beaugez's actions. (Doc. 1-1 at
151, Plaintiff's Interrogatory Responses, Nos. 10, 11,
assert that subsequent thereto, Helping Hands issued Requests
for Admissions to Shipley requesting that she admit or deny
that that her damages exceed $75, 000 and that she would
accept more than $75, 000. (Doc. 1, Doc. 1-1 at 161-62).
Shipley responded that she was unable to admit or deny the
admission requests, and in response thereto, Defendants
requested that she amend her discovery responses.
(Id.). When Shipley refused to do so, Helping Hands
filed a motion to compel in state court and requested an
order directing Shipley to supplement her responses by
October 1, 2018. (Id. at 6). The state court
scheduled the matter for a hearing on November 5, 2018, which
was more than one year after Shipley had filed her complaint
in state court. Defendants requested that the hearing date be
moved up, but Shipley refused. (Id. at 10).
contend that this case became removable on October 1, 2018,
when Shipley refused to respond to Defendants' requests
regarding damages with full knowledge that the one-year
limitation for removal was approaching. (Doc. 1-1 at 10).
Defendants further assert that Plaintiff's refusal to
limit her damages and refusal to agree to moving up the
hearing date for the summary judgment motion shows an intent
to dodge jurisdictional inquiries in an effort to defeat
removal jurisdiction. (Id.). According to
Defendants, those refusals, coupled with the injuries claimed
and damages sought in Shipley's complaint and
interrogatory responses provided Defendants with the evidence
necessary to ascertain that Plaintiff was seeking more than
$75, 000 and unambiguously establishes that the amount in
controversy exceeds $75, 000. Defendants thus argue that the
case was timely removed. (Id.)
filed her motion to remand on November 8, 2018. (Doc. 10). In
her motion to remand, Shipley argues that a record from the
Alabama Secretary of State clearly shows that Helping Hands
Therapy is an Alabama limited liability company incorporated
in Alabama; thus, there is no diversity jurisdiction. (Doc.
10 at 4). Shipley further asserts that even if Helping Hands
Therapy is a trade name for a Mississippi business, at the
time the lawsuit was filed, its principal place of business
was Alabama under the “nerve center test” given
that all three of its clinics are located in Alabama.
(Id. at 5). Shipley contends that Meridian,
Mississippi cannot possibly be Helping Hands'
“nerve center” because there is no corporate
activity occurring there, as all of its clinics are located
in Alabama. (Id.)
respect to the amount in controversy, Shipley asserts that
she “does not intend to waive an argument that the
amount in controversy is less than $75, 000” and
“that the issue is moot without complete
diversity.” (Id. at 7). Plaintiff also
contends that contrary to Defendants' assertion, she
refused to move up the hearing date in state court because
the motion to compel was “obviously frivolous, ”
and Defendants' only goal was to try to establish
diversity jurisdiction. (Id. at 8).
Defendant Beaugez's response in opposition to
Shipley's motion to remand (Doc. 16), Beaugez asserts
that the sole basis for Shipley's motion is her
contention that Helping Hands is a citizen of Alabama.
Beaugez notes that Shipley made no argument contesting the
amount in controversy and offered no evidence to rebut
Helping Hands' showing that the amount in controversy is
Helping Hands also filed a response in opposition to
Shipley's motion. (Doc. 14). Helping Hands argues that
Shipley's motion actually bolsters Defendants'
contention that the amount in controversy exceeds $75, 000.
(Doc. 18). According to Helping Hands, Shipley has indicated
that she is seeking compensatory and punitive damages for
significant physical harm, increased medical costs, pain,
suffering and other damages, that she cannot walk properly
and is in constant pain and that she takes pain medication
daily and uses a wheelchair and riding buggy at places such
as the grocery store. Helping Hands asserts that such
evidence is sufficient to establish that the amount in
controversy exceeds $75, 000. (Id. at 7).
respect to diversity, Helping Hands contends that contrary to
Shipley's assertions, for diversity purposes, a limited
liability company, unlike a corporation, is a citizen of any
state of which a member of the company is a citizen, and it
matters not where the company was formed or has its principal
place of business. (Id. at 6). Helping Hands further
contends that the uncontroverted evidence establishes that
Helping Hands Therapy, LLC was not formed until March 2018
and that the allegations in Plaintiff's complaint relate
to services provided at a clinic operated by New Hope, LLC,
which was doing business under the trade name Helping Hands
Therapy. (Id. at 5). Additionally, Defendant asserts
that at the time this lawsuit was filed, and at the time of
removal, New Hope, LLC d/b/a Helping Hands Therapy, had three
members, namely Jia Liu, Roshonda Lankford, and Bailey Wang,
who were citizens of Georgia, Mississippi, and
Georgia respectively. (Id. at 6). Helping Hands also
asserts that it has demonstrated, and Shipley has not
contested, that she is a citizen of Alabama, and Sarah
Beaugez is a citizen of Mississippi. Thus, diversity of
citizenship has been established. (Id.).
December 4, 2018, Shipley filed her reply to Defendants'
response in opposition to her motion to remand (Doc. 21). In
her reply, Shipley argues that the removal was untimely.
(Id. at 1). According to Shipley, while Defendants
contend that they did not know that the amount in controversy
exceeded $75, 000 until October 1, 2008, her factual
allegations did not change between the filing of her
complaint on October 11, 2017, and October 1, 2018, the date
Defendants contend they were on notice that the amount in
controversy exceeds $75, 000. (Id. at 2). Shipley
also asserts that assuming that Helping Hands is a citizen of
Mississippi and Georgia, diversity jurisdiction is still
lacking because Defendant Beaugez is a citizen of Alabama
notwithstanding her representations to the Court. Shipley
avers that Beaugez has an Alabama driver's license,
appears to own a car with a current Alabama registration, is
registered to vote and has voted in Alabama, and in July 2017
and July 2018, she received two traffic tickets in Alabama,
and both tickets reflect an Alabama home address.
(Id. at 3-4).
Beaugez filed a response in opposition to Plaintiff's
response. (Doc. 31). In her response, Beaugez argues that the
removal was timely and that at the time the lawsuit was filed
in October 2017, she physically resided in Mississippi and
had the intent to remain there. (Id.) Helping Hands
also filed a response to Shipley's reply (Doc. 30).
Helping Hands argues that the removal was timely and that
Beaugez was a citizen of Mississippi at the time the
Complaint was filed. (Doc. 30). Following the evidentiary
hearing on March 6, 2019, the parties filed supplemental
briefs, at the Court's directive, on the issue of whether
the removal was timely filed. (Docs. 37, 38). Shipley asserts
that Defendants' removal was untimely, while Defendants
allege that the removal was timely filed and that Shipley
waived the timeliness issue by not raising it in her motion