Civil Action No. 04-1378, Section "A" (3).
June 30, 2004
Before the Court is a Motion to Remand (Rec. Doc. 4) filed by plaintiffs Orlester Evans and Earl Evans (collectively "Plaintiffs"). Defendant, Wal-Mart Stores, Inc. ("Wal-Mart") opposes the motion. The motion, set for hearing on June 30, 2004, is before the Court on the briefs without oral argument. For the reasons that follow, the motion is DENIED.
Plaintiff Orlester Evans alleges that she sustained serious injuries to her foot while shopping at a Wal-Mart store in Boutte, Louisiana. Plaintiffs filed suit against Wal-Mart in the 29th JDC, Parish of St. Charles. Plaintiffs served Wal-Mart on December 29, 2003. On May 13, 2004, nearly five months after being served, Wal-Mart removed the suit to this Court. In its removal petition, Wal-Mart asserted that based on discovery received on April 29, 2004, "the amount in controversy is well over $75,000, exclusive of interest and costs." Rec. Doc. 1, ¶¶ 5-6.
Plaintiffs now move to remand the case arguing that Wal-Mart's removal notice was untimely because it was outside the thirty day period allowed in 28 U.S.C. § 1446(b). Plaintiffs argue that the case was removed based upon the allegations contained in their original petition that Wal-Mart admits to having received on December 29, 2003. Thus, according to Plaintiff, the thirty day removal period expired in January 2004. Further, Plaintiffs argue that the Defendants should not be rewarded for their failure to diligently pursue discovery during the thirty day period.
In opposition, Wal-Mart argues that the plain vanilla allegations in Plaintiffs' state court petition were insufficient to put Wal-Mart on notice that the amount in controversy exceeds $75,000. Wal-Mart points out that the petition does not describe Ms. Evans's injury with any particularity and therefore Wal-mart had no notice, until later discovery, that the case was removable.
DiscussionThe parties agree that the amount in controversy exceeds $75,000 and that the parties are of diverse citizenship. 28 U.S.C. § 1332 (a) (diversity jurisdiction). At issue is whether Wal-Mart timely removed the suit to federal court.
The timing of removals from state court are governed by 28 U.S.C. § 1446(b), which provides in perintent part:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . .
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty 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.A. § 1446(b) (West 1994 Supp. 2004). As this Court has previously explained:
In Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992), the Fifth Circuit explained that the thirty day time period in which a defendant must remove a case starts to run from the defendant's receipt of the initial pleading only when that pleading " affirmatively reveals on its face that the plaintiff is seeking damages in excess of the minimum jurisdictional amount of the federal court." The Chapman court rejected the notion of having a district court inquire into a defendant's subjective knowledge of the value of a claim instead opting for more certainty in determining when an initial pleading triggers removal. Id. Some courts hold that Chapman requires a specific dollar allegation to begin the 30-day removal period, e.g., Bell v. Jack in the Box, Inc., 2000 WL 140769 (N.D. Tex. Feb. 7, 2000), but other courts doubt that Chapman was meant to be read so narrowly, e.g., Carleton v. CRC Industries, Inc., 49 F. Supp.2d 961 (S.D. Tex. 1999). Those latter courts hold that where the allegations in the initial pleading are sufficient to put the defendant on notice that the case is removable, the absence a more specific jurisdictional dollar allegation will not prevent the 30-day removal period from running. See, e.g., Evett v. Consolidated Freightways Corp., 110 F. Supp.2d 510 (E.D. Tex. 2000). Adding to the confusion, the Fifth Circuit has recently held that the allegations contained in the initial complaint need not be as certain or unequivocal as what would be required in a subsequent pleading in order to trigger the 30-day removal period. See Bosky v. Kroger Texas, LP, 288 F.2d 208, 211 (5th Cir. 2002). In Louisiana state courts, the initial pleading cannot contain an allegation as to a specific damage quantum. See La. Code Civ. Pro. 893(A)(1).Stewart v. Alvarez, No. CA02-1159, 2002 WL 31255407, at *2 (E.D. La. Oct. 8, 2002).
Consistent with Louisiana law, Plaintiffs did not allege a specific damage quantum in their state court petition. Nor did plaintiffs allege, in accordance with a strict application ofChapman, that their damages are in excess of the federal jurisdictional amount although Louisiana law does allow such an allegation. La. Code Civ. Pro. 893(A)(1). Plaintiffs allege that a Wal-Mart "greeter" rolled over Ms. Evans's foot as she entered the store. Pla. Pet. at ¶ III. Plaintiffs did not allege what roller instrumentality the greeter used so the Court assumes that it was a shopping cart. Plaintiffs then allege that Ms. Evans suffered severe physical injuries to her foot." Id. at ¶ IV. Plaintiffs explain that Ms. Evans was recovering from surgery on her foot at the time of the incident and that this surgery had involved "the placement and removal of screws to fuse the bones in her foot, and the removal of bone spurs." Id. The petition does not allege how long before the incident Ms. Evans had the surgery. Plaintiffs allege that "[s]ince the incident occurred, [Ms. Evans] began to experience severe pain and trouble walking and her recovery from the prior surgery was affected to the extent that she now has trouble ambulating and suffers from excruciating pain and frequent swelling." Id. Ms. Evans alleged damages for past medical expenses, future medical expenses, lost time from work, serious physical and mental pain and suffering and has experienced a loss of quality of her life." Id. ¶ X. The petition contains nothing else to add any specificity to Ms. Evans's injuries and the petition gives no indication of the amount of time Ms. Evans missed work due to the incident.
Plaintiffs point out that the state court judge granted Wal-Mart's request for a jury trial on February 9, 2004, and that this should have suggested to Wal-Mart that the case was removable. This argument fails, however, because the minimum quantum for jury trials in state court is significantly lower than the jurisdictional minimum in federal court. See La. Code Civ. Pro. 1732(1) (exceeds $50,000). Further, the Fifth Circuit affirmed the district court's decision to deny remand in a case where the plaintiff had alleged an unspecified amount of damages in excess of $50,000. Bosky v. Kroger Tex., LP, 288 F.3d 208, 210 (5th Cir. 2002).
Mr. Evans claims damages for loss of consortium and while the Court can exercise supplemental jurisdiction over his claim if original jurisdiction exists over Ms. Evans's claim,Alvarez, 2002 WL 31255407, at *3 n. 4, the Evanses cannot aggregate their separate claims to meet the jurisdictional threshold because their claims are "separate and distinct," see Baldwin v. B.J. Hughes, Inc., 617 F. Supp. 30, 31 (W.D. La. 1985).
Based on the foregoing, the Court concludes that Plaintiffs' state court petition did not affirmatively reveal on its face that the amount in controversy exceeded $75,000. The allegations surrounding Ms. Evans's accident are vague and the petition reveals almost nothing as to the specific injuries she sustained. From the petition one would have to guess as to how much work time Ms. Evans claims to have missed due to the incident. Had Wal-Mart removed the suit based solely upon the allegations in the petition the Court would have had little choice but to remand the case because Wal-Mart could not have shown that the amount in controversy requirement was met. Such a remand would have been unreviewable and would have precluded Wal-Mart from ever asserting its right to a federal a forum. Indeed, the Chapman decision was based upon the desire to avoid "protective removals" by defendants faced with equivocal pleadings. Thus, while the removing defendant bears the absolute burden of proving jurisdiction once he removes the case, the state court plaintiff who hopes to ensure the immediate running of the thirty day period must sufficiently plead his case. Plaintiffs in this case have not done so.
Finally, Plaintiffs argue that Wal-Mart should be penalized because it failed to conduct discovery immediately upon receiving the petition. Plaintiffs cite no authority for this proposition and it implicitly conflicts with the core holding of Chapman, i.e., that the burden of starting the thirty day removal clock falls upon the plaintiff.
In sum, the thirty day removal period did not begin to run when Wal-Mart received the state court petition on December 29, 2003. Discovery received on April 29, 2004, started the running of the thirty day period pursuant to the second paragraph of 28 U.S.C. § 1446(b). Thus, the removal on May 13, 2004, was timely.
IT IS ORDERED that the Motion to Remand (Rec. Doc. 4) filed by plaintiffs Orlester Evans and Earl Evans should be and is hereby DENIED.