Carbo v. Wal-Mart La. L.L.C., CASE NO. 6:20-CV-01192

RAMONA CARBO v. WAL-MART LOUISIANA L L C

CASE NO. 6:20-CV-01192

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION

November 30, 2020

JUDGE ROBERT R. SUMMERHAYS

MAGISTRATE JUDGE HANNA

REPORT AND RECOMMENDATION

Before the Court are Plaintiff's Motion to Remand (Rec. Doc. 8) and Motion for Leave to File First Amended Petition for Damages (Rec. Doc. 7). Wal-Mart Louisiana, LLC opposed the Motions. (Rec. Doc. 10 and 11). The Motions were referred to the undersigned magistrate judge for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §636 and the standing orders of this Court. Considering the evidence, the law, and the arguments of the parties, and for the reasons explained below, the Court recommends that Plaintiff's Motions be DENIED.

Factual Background

Plaintiff filed this suit in state court against Wal-Mart following a slip and fall incident at the Morgan City, Louisiana Wal-Mart. (Rec. Doc. 1-1). Wal-Mart removed the case to this Court on September 15, 2020 based on diversity jurisdiction. (Rec. Doc. 20). Wal-Mart's basis of removal was the receipt of Plaintiff's responses to interrogatories on August 19, 2020, which indicated an amount in controversy exceeding $75,000 based upon medical records provided. (Rec. Doc. 1, ¶3 and 4).

Plaintiff filed the Motion to Remand on two grounds: 1) Wal-Mart's removal was untimely; and 2) Plaintiff seeks to add an additional, nondiverse defendant, which would render federal diversity jurisdiction improper. Plaintiff filed a separate Motion for Leave to Amend, seeking to add Wal-Mart assistant manager, Scarla Celestine, as a nondiverse defendant.

Law and Analysis

The federal district courts have original jurisdiction over cases in which the parties are diverse in citizenship and the amount in controversy exceeds $75,000. 28 U.S.C. §1332. Generally, upon the filing of a motion to remand, the removing party bears the burden to prove that federal jurisdiction exists. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). Thus, Wal-Mart, as the party seeking to invoke federal diversity jurisdiction under §1332, bears the burden of establishing that the parties are diverse, that the amount in controversy exceeds $75,000, and that it complied with removal procedures. Garcia v. Koch Oil Co. of Texas Inc., 351 F.3d 636, 638 (5th Cir. 2003).

The parties do not dispute, and the Court agrees, that Plaintiff and Wal-Mart are diverse. Neither do the parties dispute that the amount in controversy exceeds $75,000. Rather, Plaintiff challenges the timeliness of Wal-Mart's removal and thepropriety of diversity jurisdiction after her proposed amendment to add the assistant store manager as a defendant.

I. Timeliness of removal.

Generally, a defendant may remove a case within thirty days of service of a pleading indicating that removal is proper. 28 U.S.C. §1446(b)(1). When the initial pleading does not indicate whether removal is proper, the defendant may remove the case within thirty days "after receipt...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).

In Bosky v. Kroger Texas, LP, the Fifth Circuit discussed the differing standards for removal based upon the initial pleading under §1446(b)(1) and removal based upon the receipt of subsequent pleadings or "other paper" under §1446(b)(3). Bosky v. Kroger Texas, LP, 288 F.3d 208, 210 (5th Cir. 2002). Under (b)(1), the 30-day time limit commencing with the initial pleading is triggered "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." Id. (emphasis in original). (citations omitted). Under (b)(3), the 30-day time limited commencing with the receipt of subsequent pleading or "other paper" is triggered by receipt ofinformation which is "unequivocally clear and certain." Holding that the latter standard is clearer than the former, the court reasoned:

This clearer threshold promotes judicial economy. It should reduce "protective" removals by defendants faced with an equivocal record. It should also discourage removals before their factual basis can be proven by a preponderance of the evidence through a simple and short statement of the facts. In short, a bright-line rule should create a fairer environment for plaintiffs and defendants.

Id. at 211, adopting the Tenth Circuit's approach in DeBry v. Transamerica Corp., 601 F.2d 480 (10th Cir.1979).

The parties do not dispute that Plaintiff's Petition did not affirmatively establish an amount in controversy exceeding $75,000. See Petition at Rec. Doc. 1-1, which does not set forth an amount of alleged damages. Rather, the parties dispute the timing and sufficiency of the "other paper" triggering Wal-Mart's removal. Plaintiff contends that Wal-Mart had thirty days from receipt of her response to its Request for Admission:

REQUEST FOR ADMISSION NO. 1:

Do you admit no individual cause of action arising out of the incident which occurred on or about July 20, 2019, which is the subject of the captioned matter, exceeds the sum of $50,000.00, exclusive of interest and costs?

RESPONSE TO REQUEST FOR ADMISSION NO. 1.

Plaintiff objects to the subject Request for Admission, to the extent that the answers may be deemed the final answer on the issue. Discovery has just begun and plaintiff reserves the right to supplement and/or amend this answer as new and more accurate information becomes available. Subject to this objection, and in the spirit of amicable discovery, plaintiff's response is as follows: Denied. Plaintiff remainsunder a doctor's care and the full extent of plaintiff's injuries has yet to be discovered.

(Rec. Doc. 8-4).

Plaintiff faxed the foregoing response on August 6, 2020. (Rec. Doc. 8-4, p. 2). She argues that Wal-Mart therefore had thirty days, or until September 5, to remove, but that Wal-Mart did not remove the case until September 15, 2020. Wal-Mart contends that its deadline to remove did not commence until August 19, 2020 when it received Plaintiff's responses to interrogatories and request for production in which Plaintiff produced medical records and bills indicating an amount in controversy which could exceed the jurisdictional threshold. (Rec. Doc. 10, p. 3, footnote 5). "To qualify as an 'other paper' [sufficient to trigger removal] the discovery response must be 'unequivocally clear and certain,' so that defendant may ascertain the action's removability." Cole ex rel. Ellis v. Knowledge Learning Corp., 416 F. App'x 437, 440 (5th Cir. 2011). At least one other court in this district has found that the plaintiff's response to a request for admission that damages "may" exceed $75,000, without further information, was insufficient to trigger the removal deadline. Smith v. Walmart Inc., No. CV 19-00964, 2019 WL 6522292, at *2 (W.D. La. Nov. 5, 2019), report and recommendation adopted, No. 2:19-CV-964, 2019 WL 6517056 (W.D. La. Dec. 3, 2019).

The Court agrees with Wal-Mart that Plaintiff's Responses to Requests for Admission were not unequivocally clear and certain that damages would exceed$75,000. Plaintiff's Response indicates only that her damages could exceed that amount, but it was premature to definitively assert as much at that time. Plaintiff did not provide any information as to the nature of her claims until she provided responses to Wal-Mart's interrogatories and requests for production. Thus, the Court finds that Wal-Mart's 30-day deadline to remove did not commence upon receipt of Plaintiff's responses to requests for admission, but rather, upon receipt of Plaintiff's responses to interrogatories and request for production, with attached medical documentation establishing the nature of the alleged damages, on August 19, 2020.

Although Plaintiff has not challenged that the amount in controversy does in fact exceed $75,000, the Court is obligated to ascertain whether the jurisdictional threshold is satisfied to ensure federal jurisdiction is proper. According to Plaintiff's medical records provided in discovery responses, Plaintiff has treated for right hip pain and low back pain with radiation down her right leg since the accident. A lumber MRI revealed degenerative disc disease with bulges and protrusions. She underwent an L5-S1 epidural steroid injection. She is also claiming a right knee injury. An MRI of her right knee revealed a posterior cruciate ligament tear with degenerative conditions of the meniscus and chondromalacia. According to Wal-Mart's calculation, her medical bills total at least $30,943.78. (Rec. Doc. 11-4 and 11-5). Wal-Mart also cited cases wherein plaintiffs with similar injuries were awarded in excess of $50,000 for general damages. (See e.g. Ford v. Bituminous Ins.Co., 115 So.3d 1253 (La.App. 3 Cir. 2013), in which the Louisiana Third Circuit held that $50,000 was the lowest reasonable general damage award for spine and left knee injuries, with conservative treatment including epidural steroid injections). Accordingly, the Court finds that the amount in controversy exceeds $75,000, and diversity jurisdiction exists.

II. Whether amendment to add a nondiverse defendant is permissible.

Plaintiff next seeks remand based on the requested addition of a nondiverse defendant, Wal-Mart assistant store manager, Scarla Celestine. Typically, amendments to pleadings are governed by Federal Rule of Civil Procedure 15(a), which states that leave to amend "shall be freely given when justice so requires." However, in removed cases, a district court has discretion to either grant or deny the amendment of a complaint when subject-matter jurisdiction is based on diversity, and the plaintiff seeks to amend the complaint to add a nondiverse party. 28 U.S.C. § 1447(e); Schindler v. Charles Schwab & Co., Inc., 2005 WL 1155862, *2 (E.D. La. 2005)...