Opinion
1:04-cv-1570-JDT-TAB.
October 27, 2004
ENTRY ON PLAINTIFFS' OBJECTION TO REMOVAL (DKT. NO. 11)
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This cause is before the court on Plaintiffs' Response and Objection to Defendant's Notice of Removal (Dkt. No. 11). The court rules as follows.
I. Background
On August 23, 2004, Plaintiffs filed their Complaint against Defendant in Howard Circuit Court under Cause No. 34C01-0408-CT-666. On September 15, 2004, Plaintiffs filed their Amended Complaint for Damages.
The Complaint and Amended Complaint allege the following: On or about August 23, 2002, Plaintiff Becky Durbin was a patron of a Wal-Mart store in Kokomo, Indiana, when she slipped in a large puddle of liquid at the checkout. Wal-Mart or its employees failed to keep the floor in a dry condition and/or warn patrons of the wet condition of the floor. As a result of Wal-Mart's negligence, Ms. Durbin sustained the following personal injuries and damages: past, present and future medical expenses; past, present and future pain and suffering; and an inability to enjoy life as she had prior to the accident. Also as a result of Wal-Mart's negligence, Mr. Durbin sustained damages, namely, the loss of his wife's services, society and companionship. Plaintiffs seek a judgment compensating them for their injuries, suffering and costs.
On September 23, 2004, Wal-Mart filed a timely Notice of Removal with this court. The Notice states that Defendant is incorporated under the laws of Delaware and has its principal place of business in Arkansas. The Plaintiffs are citizens of Indiana, and based on the complaint's allegations, the amount in controversy exceeds $75,000 exclusive of interest and costs. Defendant asserts that this action is removable on the basis of the court's diversity jurisdiction.
On October 7, 2004, Plaintiffs filed a stipulation in Howard Circuit Court that they would seek no more than $74,999 in damages in this action.
II. Discussion
Plaintiffs object to the removal, contending that if they seek less than $75,000, this court lacks jurisdiction and the action is not removable. Defendant responds that Plaintiffs' stipulation was too late because a post-removal affidavit regarding the amount in controversy is insufficient to support a remand.
The court must decide whether removal was proper. "`Removal is proper over any action that could have originally been filed in federal court.'" Schimmer v. Jaguar Cars, Inc., 384 F.3d 402, 405 (7th Cir. 2004) (quoting Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997) (citing 28 U.S.C. § 1441)). The party invoking the court's diversity jurisdiction must establish that diversity exists and that the "matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a); Smith v. Am. Gen. Life Acc. Ins. Co., 337 F.3d 888, 892 (7th Cir. 2003); see also Chase, 110 F.3d at 427. It is undisputed that diversity exists.
Thus, Wal-Mart has the burden of producing "competent proof," that is, evidence which proves to a "reasonable probability" that the amount in controversy exceeds $75,000. Schimmer, 384 F.3d at 405; Chase, 110 F.3d at 427; see also Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 (7th Cir. 1993) (removing defendants may discharge burden by establishing amount in controversy by a preponderance of the evidence). The amount in controversy is determined based on an evaluation of the controversy described in the plaintiff's complaint and the record as a whole. Uhl v. Thoroughbred Tech. Telecomms., Inc., 309 F.3d 978, 983 (7th Cir. 2002); Chase, 110 F.3d at 428, and is determined as of the date of removal, BEM I, L.L.C. v. Anthropologie, Inc., 301 F.3d 548, 552 (7th Cir. 2002); Chase, 110 F.3d at 428. In making this determination, however, the court is not limited to the evidence in the record at the time of removal, but may use whatever evidence "sheds light on the situation which existed when the case was removed." Harmon v. OKI Sys., 115 F.3d 477, 479-80 (7th Cir. 1997).
The Seventh Circuit follows the rule that a post-removal stipulation, affidavit or amendment of the pleadings reducing the claim below the jurisdictional amount is ineffective to deprive the court of jurisdiction. Chase, 110 F.3d at 429 (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938)). Thus, if a plaintiff wants to avoid federal court, the plaintiff must file before removal a stipulation or affidavit indicating that it is not seeking and will not demand or accept any recovery in excess of $75,000, exclusive of costs and interest. BEM I, 301 F.3d at 552; Workman v. United Parcel Serv., Inc., 234 F.3d 998, 1000 (7th Cir. 2000); In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curiam).
Wal-Mart is right that Plaintiffs' post-removal stipulation is ineffective to strip the court of jurisdiction. However, the stipulation puts the amount in controversy in dispute. See King v. Wal-Mart Stores, Inc., 940 F. Supp. 213, 216 (S.D. Ind. 1996); Reason v. Gen. Motors Corp., 896 F. Supp. 829, 834 (S.D. Ind. 1995). Thus, Wal-Mart has the burden of coming forward with competent proof to establish at least a reasonable probability that the amount-in-controversy requirement is satisfied here.
In claiming that the jurisdictional amount is satisfied, Wal-Mart relies on the Complaint's allegations of Ms. Durbin's past, present and future medical expenses, pain and suffering, and inability to enjoy life as she used to enjoy it. Wal-Mart also relies on the following information in its counsel's possession at the time of removal: Ms. Durbin's medical bills were $16,441.63; she underwent rotator cuff surgery allegedly as a result of the fall at Wal-Mart; and she continues to complain of pain, limitation and the need for future medical treatment. Counsel states that he has removed many cases to this court on the basis of a similar amount of medical bills alone and that "[c]ases involving such bills, surgery, and allegations of continuing limitation and future pain and expense" satisfy Defendant's obligation to establish the jurisdictional amount. (Def.'s Resp. Pls.' Obj. Removal at 2.) Similar information has been found insufficient to establish the amount in controversy in other cases. See Brewer v. State Farm Mut. Auto. Ins. Co., 101 F. Supp. 2d 737, 740 (S.D. Ind. 2000) (holding defendant failed to produce competent proof of amount in controversy where it produced no medical records, claim forms, or other documentation that might have established the amount recoverable); King, 940 F. Supp. at 216-17 (holding defendant failed to support a reasonable probability that the jurisdictional amount was satisfied by relying on complaint's general allegations, plaintiff's report of special damages in excess of $10,000, plaintiff's settlement demand of $50,000, and plaintiff's claim for past and future lost wages); Reason, 896 F. Supp. at 834-35 (holding defendant failed to come forward with competent proof of amount in controversy by relying on allegations in the complaint, the size of plaintiffs' settlement with a third party, and citations to cases in which juries awarded large verdicts for similar claims).
Though Wal-Mart shows the possibility that the jurisdictional amount is satisfied, it has not come forward with sufficient proof of the amount in controversy. The court does not doubt counsel's representation regarding Ms. Durbin's medical bills and understands why the Defendant would be concerned about the Plaintiffs' allegations of future medical expenses and pain and suffering. Yet, no evidence was submitted that would corroborate those allegations, such as a medical report which would support the potential that Ms. Durbin will have future pain from injuries suffered as a result of the Wal-Mart incident. The record before this court simply does not show a reasonable probability that the Durbins' recovery will exceed $75,000, exclusive of interest and costs. The complaint's general allegations of Ms. Durbin's medical expenses, pain and suffering and inability to enjoy life as she had prior to the fall and of her damages fail to provide any information about the amount of the medical expenses or the claimed value of the Plaintiffs' injuries and damages. The mere fact that counsel removed other cases in this district on the basis of similar medical bills is not enough, since there is no indication that removal was resisted in those cases. The brief mention of unidentified cases involving similar medical bills, surgery, and allegations of continuing limitation, future pain and expense likewise is insufficient as there is no indication that the courts in those cases decided that the jurisdictional amount was satisfied. Even assuming that the plaintiffs in such cases had medical bills similar to Ms. Durbin's and underwent similar surgery, that is not enough for this court to conclude that their claims of continuing limitations and future damages and losses were also similar to Ms. Durbin's, whatever they may be.
The court understands that defense counsel is restricted in obtaining information in a short period of time in the early stages of a case and the decision to remove a case must be made quickly. So what can be done to document that plaintiffs seek to recover more than the jurisdictional amount? Perhaps expedited interrogatories or requests for admission might be productive while the case is pending in state court. Even more informally, perhaps a direct inquiry to plaintiffs' counsel about a demand would give the defense enough to prove that plaintiffs would not agree that their demand would be less than $75,000.
Wal-Mart has not produced evidence which proves to a reasonable probability that the jurisdictional amount is satisfied in this case. Therefore, this action must be remanded for lack of subject matter jurisdiction.
III. Conclusion
Defendant has not shown that the court has diversity jurisdiction in this case. Plaintiffs' objection to removal (Dkt. No. 11) is SUSTAINED, though for reasons different than those asserted by Plaintiffs, and this action will be REMANDED. An appropriate order will be issued with this entry.