Johnson v. Dillard Dept. Stores, Inc.

836 F. Supp. 390

Anna S. JOHNSON v. DILLARD DEPT. STORES, INC.

No. 4:93-CV-532-E.

United States District Court, N.D. Texas, Fort Worth Division.

November 2, 1993.

Stephen C. Maxwell, Law Offices of Stephen C. Maxwell, Ft. Worth, TX, for plaintiff.

Hartson Dustin Fillmore, III, Fillmore Law Firm, Ft. Worth, TX, for defendant.

ORDER

MAHON, Senior District Judge.

Now before the Court is Plaintiff Anna S. Johnson's ("Johnson") Motion to Remand to which defendant has responded. After consideration of the motions and the applicable law, the Court makes the following determination.

FACTS

Johnson originally filed this suit in the 342nd Judicial District Court of the State of Texas, Tarrant County, on April 13, 1993. Johnson alleges in her state court petition¹ that she sustained injuries as a result of a slip and fall incident in one of defendant's department stores. In accordance with Texas Rule of Civil Procedure 47(b), the petition does not state a specific amount of damages sought by Johnson.

On August 10, 1993, defendant filed its Notice of Removal to this Court pursuant to 28 U.S.C. §§ 1332, 1441, and 1446(b) claiming diverse parties and amount in controversy in excess of $50,000.00. On August 24, Johnson filed a Motion for Remand claiming alternatively: (1) defendant's removal was not timely filed as it was not within 30 days of service of plaintiff's original pleadings pursuant to § 1446(b); and (2) the amount in controversy does not exceed $50,000.00.

DISCUSSION

A. Timeliness of Removal

Section 1446(b) sets forth the timeliness requirements necessary for removal. That section states:

(b) 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, or within thirty days after the 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.

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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

28 U.S.C. § 1446(b).

Johnson claims that defendant's removal was not timely as Defendant's Notice of Removal was filed more than thirty days after the time the initial pleading was served upon defendant. 28 U.S.C. 1446(b). On the other hand, defendant argues that since the initial pleading did not disclose a specific amount of damages, the case stated by the initial pleading was not removable and defendant had thirty days from the date defendant received a document or "other paper from which it may first be ascertained that the case is one which is or has become removable."

In a recent Fifth Court decision, Chapman v. Powermatic, Inc., the Court held that the plain language of § 1446 supports the argument which defendant now makes. 969 F.2d 160, 163 (5th Cir.1992). In that case, the Court stated that the receipt of § 1446 "other paper" must occur after the initial pleading and must reveal that the case is removable. Id. at 164.

Defendant argues that it filed its Notice of Removal within thirty days of its receipt of the following documents: (1) Plaintiff's First Amended Original Petition (received by defendant on July 20, 1993); and (2) Plaintiff's Answers to Defendant's Second Set of Requests for Admissions (received by defendant on August 9, 1993). Defendant asserts that Johnson's answers to the second set of requests for admissions, in conjunction with plaintiff's allegations contained in her amended petition, apprised defendant that "the amount of damages pled by Plaintiff was a colorable sum." The record shows that defendant filed its notice of removal on August 10, 1993, within thirty days of its receipt of these documents. The Court agrees that the two documents cited by defendant qualify as § 1446 "other paper" giving defendant notice that the case was removable. Thus, under § 1446 and Chapman, the Court finds that defendant's filing of the Notice of Removal was timely.

B. Amount in Controversy

The requirements of a timely-filed removal pursuant to § 1332 are: (1) complete diversity between all plaintiffs and defendants; and (2) amount in controversy in excess of $50,000.00. The removing party bears the burden of establishing the basis for federal jurisdiction. Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 253-54 (5th Cir.1961). Further, under St. Paul Mercury Indemnity Co. v. Red Cab Co., a case may be removed unless it "appears to a legal certainty that the claim is really for less than the jurisdictional amount." 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). Plaintiffs cannot avoid federal jurisdiction by later stipulating to an amount of damages below the minimum jurisdiction because jurisdiction is assessed at the time of removal. Id. at 292, 58 S.Ct. at 592.

Johnson does not contest the fact that diversity exists in this case, but claims that "it is clear from Plaintiff's amended pleadings and her responses to the Requests for Admissions of Facts that the maximum amount she is claiming in this lawsuit is $50,000.00, and no more." On the other hand, defendant claims that plaintiff has engaged in "artful pleading tricks" in an effort to foreclose defendant's removal rights granted by Congress to non-resident defendants under § 1332.

Ever since Congress granted non-residents a right of removal to avoid local prejudice, plaintiff's have found ways of pleading around the § 1332 requirements. One common ploy for plaintiff's is the fraudulent joinder of a non-diverse defendant against whom the plaintiff has no valid claim. See e.g., LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir.1992) (district court properly refused to remand when non-removing party had no valid claim against non-diverse party); Carriere v. Sears, Roebuck and Company, 893 F.2d 98, 100 (5th Cir.1990) cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990) (remand properly denied because of fraudulent joinder of non-diverse defendant).

Another tactic is to characterize a case as involving equitable claims rather than damages, or artfully pleading, in bad faith, an amount of damages less than the $50,000.00 minimum jurisdictional amount. See e.g., Marcel v. Pool Company, 5 F.3d 81 (5th Cir.1993) (remand properly denied where complaint "facially apparent" that damages could easily exceed $50,000.00); cf. Asociacion Nacional de Pescadores v. Dow Quimica, 988 F.2d 559 (5th Cir.1993) (remand should have been granted where complaint did not allege injuries "facially likely" to exceed $50,000.00). Defendant claims that Johnson has fraudulently pleaded an amount less than the minimum jurisdictional amount in § 1332. Thus, the issue becomes: Has the defendant established that Johnson's complaint "facially" alleges damages in excess of $50,000.00?

In Marcel, the plaintiff filed suit against Pool Company ("Pool") for injuries sustained in an automobile collision between plaintiff and a Pool employee. In accordance with Louisiana Code of Civil Procedure article 893, Marcel's state court petition did not allege a specific amount of damages. Although all discovery was not complete at the time Pool removed the suit to federal court, Pool cited plaintiff's allegations of injuries and answers to certain discovery requests as proof that plaintiff's claim would exceed $50,000.00. In the discovery, plaintiff had specified $27,472.60 in damages. Thus, argued Pool, a jury need only award damages in excess of $22,527.40 in order to exceed the federal amount in controversy jurisdictional limit. 5 F.3d at 82-83.

Further, Pool asserted that while "a review of the Louisiana jurisprudence did not disclose a case with the plaintiff's exact injuries, a survey of the jurisprudence on each of the plaintiff's injuries ... establishes that the amount in controversy is significantly more than $50,000.00." Id. Pool then cited cases in which awards for injuries similar to Marcel's exceeded $50,000.00. Id.

The Marcel court cited Asociacion Nacional de Pescadores (ANPAC) as a situation where "under narrow and somewhat unusual circumstances, we directed a remand on the basis of an attorney's unilateral stipulation, in the form of an affidavit, to the effect that the claim did not exceed $50,000." Id. at 83. In ANPAC, the Court concluded that at least where the following three circumstances are present, the removing party has not met its burden: (1) the complaint did not specify an amount of damages, and it was not otherwise facially apparent that the damages sought or incurred were likely to exceed $50,000; (2) the defendants offered only a conclusory statement in the Notice of Removal that was not based upon direct knowledge of plaintiff's claim; and (3) the plaintiffs timely contested the removal with a sworn, unrebutted affidavit indicating that the requisite amount in controversy was not present in the case. ANPAC, 988 F.2d at 565.

Distinguishing the ANPAC precedent, the Court held that none of the three ANPAC factors were presented in Marcel. The Court concluded that the injuries alleged by Marcel rendered damages that could easily exceed $50,000. In fact, the Court found it significant that "Marcel's discovery responses totaled more than half of the requisite $50,000." 5 F.3d at 84. Moreover, Pool, as the removing party, did not simply offer conclusory statements as the propriety of removal, but instead provided a detailed explanation of why it was apparent that Marcel's claim...