Berry v. Wal-Mart Stores, E., L.P.

583 F.Supp.3d 671

Hattie Mae BERRY, Plaintiff,

v.WAL-MART STORES, EAST, L.P. et al., Defendants.

CIVIL ACTION NO. 21-3496

United States District Court, E.D. Pennsylvania.

Filed February 2, 2022

Carin A. O'Donnell, Stark & Stark, Yardley, PA, Ryan Kilmer, Wyncotte, PA, for Plaintiff.

Lisa M. Only, McDonnell & Associates, PC, Cherry Hill, NJ, for Defendants.

OPINION

Slomsky, District Judge

I. INTRODUCTION

The issue before the Court involves an important procedural question: when is a defendant first put on notice that a case filed in state court is removable to federal court? Under 28 U.S.C. § 1446(b)(1), a defendant has thirty (30) days to remove a case to federal court after service of the initial pleading, or alternatively, after the point at which the defendant can first ascertain that the case is removable. In this case, the parties dispute when Defendants were first put on notice that the amount in controversy exceeded $75,000, a requirement for diversity of citizenship jurisdiction under 18 U.S.C. § 1332 and the critical point here in ascertaining the removability of this case. They disagree on when the thirty-day period began, and therefore whether the Notice of Removal (Doc. No. 1) was timely filed.

Before the Court is Plaintiff Hattie Mae Berry's Motion to Remand to State Court (Doc. No. 4) and Defendants Wal-Mart Stores, East, L.P., Wal-Mart Stores, East, Inc., and Wal-Mart Stores, Inc.’s Response in Opposition (Doc. No. 7). For reasons that follow, the Court will grant Plaintiff's Motion to Remand (Doc. No. 4) because the Notice of Removal (Doc. No. 1) was not timely filed. Due to this procedural defect, the case will be remanded to state court.

II. BACKGROUND

On April 21, 2021, Plaintiff Hattie Mae Berry filed a Complaint in the Court of Common Pleas of Philadelphia County against Defendants Wal-Mart Stores, East, L.P., Wal-Mart Stores, East, Inc., and Wal-Mart Stores, Inc. (See Doc. No. 4-1.) In the Complaint, Plaintiff alleges that while she was a business invitee in the Wal-Mart Store in Levittown, Pennsylvania, she was "seriously injured when a box of furniture (organizing units) fell off of Defendants’ shelves that were overstocked and/or improperly stocked, causing the box to fall onto Plaintiff's feet." (Id. ¶ 6.) Based on these facts, Plaintiff filed a Complaint against Defendants alleging one count of negligence. (Id. ¶¶ 9–17.)

As a result of these events, Plaintiff states that she has sustained the following injuries:

[I]njuries to her left foot including a crush injury with contusion, left foot hematoma, cutaneous abscess of the left foot, cellulitis of the left lower extremity requiring incision and drainage on August 21, 2019, and left foot scarring and discoloration, as well as injuries to her nerves, tissues, muscles and functions, together with a severe shock to her nerves and nervous system, some or all of which Plaintiff has been advised are or may be permanent in nature.

(Id. ¶ 13.) Plaintiff further alleges that the resulting injuries have caused her to "undergo[ ] great physical pain and mental anguish," and "to expend large sums of money for medicine, medical care ... [and she] may be compelled to continue to expend such sums for the same purposes for an indefinite time in the future, to her great detriment and loss." (Id. ¶ 15.) In addition, the Complaint avers that "Plaintiff has been unable to attend to her usual and daily duties and activities and she will be unable to attend to the same for an indefinite time in the future to her great detriment and loss." (Id. ¶ 16.) Lastly, the Complaint includes an ad damnum clause, in which Plaintiff demands that judgment be entered against Defendants for an amount in excess of fifty thousand ($50,000) dollars.¹ (Id. ¶ 6.)

On June 16, 2021, Plaintiff served Defendants with the Complaint by certified mail. (See Doc. No. 4-2.) On June 22, 2021, Defendants filed a timely Answer and New Matter in response to the Complaint. (See Doc. No. 4-3.) Although Defendant sent to Plaintiff on June 24, 2021 a stipulation to limit damages to less than $75,000, Plaintiff did not respond to the proposed stipulation. (See Doc. No. 7 at 16.) On July 22, 2021, Plaintiff filed a Case Management Conference Memorandum in the Philadelphia Court of Common Pleas that described the same injuries alleged in the Complaint and included a demand from Defendants for $245,000. (See Doc. No. 4-4.)

On August 5, 2021, Defendants filed a Notice of Removal. (Doc. No. 1.) The Notice of Removal was filed fifty (50) days after Defendants were served with the Complaint, and fourteen (14) days after Plaintiff filed the Case Management Conference Memorandum in state court. For purposes of diversity of citizenship jurisdiction, the Notice of Removal states that Plaintiff is a citizen of Pennsylvania and Defendants are citizens of Delaware and Arkansas. (See Doc. No. 1 at 5.) The parties in this case do not dispute their diverse citizenship.

On August 13, 2021, Plaintiff filed a Motion to Remand (Doc. No. 4), arguing that Defendants’ Notice of Removal was untimely filed in violation of the thirty (30) day requirement, and that the case should be remanded to state court. On August 30, 2021, Defendants filed a Response. (Doc. No. 7.) The matter is now fully briefed by the parties and ripe for disposition.

III. STANDARD OF REVIEW

A district court has subject matter jurisdiction over civil actions between citizens of different states where the amount in controversy, exclusive of interest and costs, exceeds $75,000. 28 U.S.C. § 1332(a)(1). If a plaintiff files a case in state court in which there is diversity of citizenship jurisdiction, a defendant may remove the case to federal court in the district in which the state case is pending. See 28 U.S.C. § 1441(a). The time limit for removal is set forth in § 1446 :

The notice of removal of a civil action or proceeding shall be filed within 30 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, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

28 U.S.C. § 1446(b)(1). The statute also contains an exception to this rule:

[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 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. § 1446(b)(3).

If the procedural requirements for removal are not followed, including the thirty-day limits in Sections 1446(b)(1) and 1446(b)(3), the case may be remanded. As set forth under § 1447(c):

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

28 U.S.C. § 1447(c).

"Cases may be remanded under § 1447(c) for (1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure." PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993). "[I]t is well established that the 30–day time limit for removal in the first paragraph of 1446(b) is [a] procedural" defect, rather than a jurisdictional one. Ariel Land Owners, Inc. v. Dring, 351 F.3d 611, 614 (3d Cir. 2003) ; see also Korea Exch. Bank, New York Branch v. Trackwise Sales Corp., 66 F.3d 46, 51 (3d Cir. 1995) ; Maniar v. F.D.I.C., 979 F.2d 782, 784 (9th Cir. 1992).

A district court may not remand a case sua sponte for a procedural defect, because procedural defects are subject to waiver. See In re FMC Corp. Packaging Sys. Div., 208 F.3d 445, 451 (3d Cir. 2000). Rather, for a district court to remand a case based on a procedural defect, such as untimely removal, a motion to remand must be filed by a party within thirty (30) days after the notice of removal, in accordance with § 1447(c). Korea Exch. Bank, 66 F.3d at 51 (holding "a case may not be remanded for failure to comply with the 30-day time limit absent a timely motion" to remand). In any event, "the removal statute should be strictly construed and all doubts resolved in favor of remand." Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985) (citations omitted).

Here, Plaintiff filed her Motion to Remand (Doc. No. 4) on August 13, 2021, eight (8) days after Defendants filed on August 5, 2021 the Notice of Removal (Doc. No. 1). Thus, Plaintiff's Motion to Remand was timely filed in accordance with the thirty-day limit set forth in 28 U.S.C. § 1447(c), and the Court therefore has the authority to remand the case on the basis of a procedural defect due to Plaintiff's timely motion.

IV. ANALYSIS

The parties in this case do not dispute that the requirements for diversity of citizenship jurisdiction are met. Plaintiff is a citizen of Pennsylvania and Defendants are citizens of Delaware and Arkansas, and the amount in controversy exceeds $75,000. Rather, the central issue in Plaintiff's Motion to Remand (Doc. No. 4) is whether the Notice of Removal (Doc. No. 1) was timely filed. The outcome of this dispute depends on whether the thirty (30) days in which to remove the case was triggered by service of the Complaint with the case as stated therein, or instead by "other paper from which it first may be ascertained...