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holding that it was not facially apparent from the complaint that the amount-in-controversy requirement was met even though it was alleged that plaintiff sustained "serious and permanent injuries" because the complaint did not contain specific allegations as to the nature of plaintiff's injuries, the treatment she received or her prognosis, and the magnitude of her lost wages was also unclear
Summary of this case from Barakat v. Costco Wholesale Corp.Opinion
No. C-03-1509 EMC, (Docket Nos. 8 and 29)
November 4, 2003
ORDER GRANTING PLAINTIFF'S REQUEST TO REMAND TO STATE COURT
Plaintiff Jeanette Corbelle has sued Defendant Sears, Roebuck Co. ("Sears") for various state law claims. Ms. Corbelle initially filed suit in state court, and Sears subsequently removed the case to federal court on the basis of diversity jurisdiction. Ms. Corbelle then filed a motion with this Court asking for a remand to state court. At the hearing on Ms. Corbelle's motion to remand, the Court ordered the parties to engage in limited and reasonable discovery relevant to the amount in controversy. The parties filed cross-briefs on October 24, 2003, and a hearing on the matter was held several days later. Having considered the parties' briefs and accompanying submissions as well as the argument of counsel, and good cause appearing therefor, the Court hereby GRANTS Ms. Corbelle's request to remand to state court.
I. FACTUAL BACKGROUND
A. Complaint (Filed on December 16, 2002)Ms. Corbelle's suit against Sears relates to her use of a "Sears Kenmore" microwave oven on or about August 19, 2000. According to Ms. Corbelle's complaint, filed on December 16, 2002, while she was using the microwave oven, she was suddenly and violently electrocuted. Compl. ¶ 11. As a result, she sustained "serious and permanent injuries to her health, strength and activity, severe shock to her nervous system and heart and was caused to suffer extreme physical and mental pain." Id. ¶ 12. In addition, she incurred medical expenses and lost wages and, on information and belief, would continue to incur medical expenses and lose wages. Id. ¶¶ 13-14. In conformance with California law, no specific monetary demand was made in Ms. Corbelle's complaint.
B. Deposition of Ms. Corbelle (Dated September 19. 2002)
Prior to the instant suit, Ms. Corbelle brought the same case in state court. It was removed to federal court and then dismissed. Pursuant to stipulation, the limitations period was tolled, permitting Ms. Corbelle to re-file the instant suit. While the first case was still in federal court, Sears subpoenaed some of Ms. Corbelle's medical records and took her deposition.
During the deposition, taken on September 19, 2002 under the auspices of the first suit, Ms. Corbelle testified that she had not been working since December 2000; that she had been earning $8 an hour when she stopped working in December 2000; that she had had and continued to have several migraines daily, that in August 2001 she experienced a sharp chest pain that required her to go to the hospital; that the doctor who examined her for the chest pain talked to her about the damage that electrical shock does to a person and told her that the electrical system in her chest was damaged; that soon after the accident she went to an eye doctor because her eyes were burning, red, and weeping, she had "floaters," and every time she blinked she saw a flash of light; that in November 2001 she saw another eye doctor because her eyesight was not doing well and she was prescribed glasses; that a nurse told her that she may have to have a C — section if she has another child to avoid the stress to her chest and heart; and that the accident has impacted her life in various ways such as limiting her driving, causing her dizziness, making her less active, causing something like a seizure, and affecting her thinking, memory, and concentration.
C. Responses to Written Discovery (Served in October 2003)
1n its papers, Sears argues that, because Ms. Corbelle's responses to the requests for admissions were four days late due to a mailing problem, the matters of which the admissions were requested should be deemed admitted. The Court has discretion as to whether matters should be deemed admitted pursuant to Federal Rule of Civil Procedure 36. See Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995). Given that service was only four days late, that Sears does not appear to have been prejudiced in any way, and that the issue here is subject matter jurisdiction which can never be waived, the Court shall not deem any of the matters admitted. See, e.g., id. at 243 ("Because the late response was so minimal in time and work on the date for responding was slowed by the snow storm, we conclude that the district court did not abuse its discretion in refusing to consider the requests for admission as admitted."); see also Manatt v. Union Pacific Railroad Co., 122 F.3d 514, 517 (8th Cir. 1997) (stating that rejecting the responding party's late answers would not subserve the presentation of the merits of the action and allowing the late answers would not prejudice the propounding party).
Pursuant to the Court's order authorizing limited discovery in the instant case, Sears propounded written discovery on Ms. Corbelle, namely, requests for admission, interrogatories, and requests for production. In her responses, Ms. Corbelle stated that, as a result of the incident, she experienced migraines, dizziness, and chest pains and her level of activity had been limited. While she was concerned about seizures, vision problems, and an irregular heartbeat, she conceded, however, that no doctor had diagnosed her as having any of these ailments because of the incident. Similarly, no doctor had told her that her ability to bear children was impacted. Ms. Corbelle also conceded that she did not have any documents to support either seizures or vision problems and that, if she made any claim about the incident affecting her ability to bear children, she now withdrew it. Ms. Corbelle also stated that, after the incident, her desire and ability to drive did diminish but that, when she filed the complaint (more than two years after the incident), her desire and ability to drive "was pretty much back to normal, re-accident levels.
In her responses to the written discovery, Ms. Corbelle also made the following statements. First, she denied that, at the time of removal, her special and/or general damages exceeded $75,000. According to Ms. Corbelle, her special damages consisted of only $6,500 in medical expenses and $500 in lost wages. She also claimed general damages for pain, suffering, and emotional distress in the amount of $50,000; however, there was no documentation of any illness other than her subjective complaints. Second, Ms. Corbelle did not have any documents to support her pain, suffering, inconvenience, emotional distress, medical expenses, and/or lost earnings except for the medical records she produced to Sears. The only witnesses to support these damages were herself and/or her former employer. Third, regarding future medical expenses, Ms. Corbelle felt she would benefit from seeing a therapist weekly for a year at a cost of $7,800. However, she had no documents to support this claim for future medical expenses and she was the only witness to support this claim. Further, she did not have any records of having received or being prescribed therapy in the three years after the incident. Ms. Corbelle also stated that the only ongoing injury, symptom, illness, or disability she suffered was injury that could be resolved in therapy and that was related to anxiety (though she had not been given any diagnosis). Fourth, regarding future earning capacity, Ms. Corbelle stated that she had no damages for any such loss, a point that her counsel reiterated on the record during the hearing on October 29. Finally, Ms. Corbelle stated that, other than the above, she was not claiming any other special or general damages as a result of the incident nor was she claiming punitive damages.
In response to another interrogatory, Ms. Corbelle stated that her medical bills totaled approximately $6,650 and her lost wages $320 per week (based on an hourly wage of $8).
III. DISCUSSION
In a complaint for money damages, a plaintiff often demands a judgment against the defendant for a specific dollar amount. See Singer v. State Farm Mut. Automobile Ins. Co., 116 F.3d 373, 375 (9th Cir. 1997). In such a situation, when the case is based on diversity jurisdiction, a court simply reads the ad damnum clause to determine whether the matter in controversy exceeds the requisite amount, currently $75,000, exclusive of interest and costs. See id. "If the claim was apparently made in good faith, then the sum claimed by the plaintiff controls for removal purposes unless it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed." Id. (internal quotation marks omitted).
There are instances, however, when a plaintiffs complaint does not state a specific dollar amount at issue because of state law. For example, California Code of Civil Procedure § 425.10(b) provides that the amount of damages shall be stated in the complaint unless the action is one to recover actual or punitive damages for personal injury or wrongful death, in which case the amount shall not be stated. See Cal. Code Civ. P. § 425.10(b). When the complaint does not demand a specific dollar amount, the removing defendant bears the burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75,000. See id. at 376; see also Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) (adopting preponderance of evidence standard). Under this burden, the defendant must establish that it is more likely than not that the amount in controversy exceeds $75,000. See id.
The Ninth Circuit has established the following framework for determining the amount in controversy on removal. First, a "court may consider whether it is 'facially apparent' from the complaint that the jurisdictional amount is in controversy." Singer, 116 F.3d at 377. If not, then jurisdiction is indeterminate, see Gwyn v. Wal-Mart Stores, Inc., 955 F. Supp. 44, 46 (M.D.N.C. 1996), and the court may consider facts in the removal petition and require parties to submit summary judgment-type evidence relevant to the amount in controversy. See Singer, 116 F.3d at 377.
Removal cannot be based simply on a defendant's conclusory allegations where the ad damnum clause is silent. See Singer, 116 F.3d at 377; see also Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992) (noting that defendant offered no facts to support removal).
In determining whether removal is proper, a court may consider any evidence so long as it reveals the situation that existed when the case was removed. As the Supreme Court stated in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 293 (1938), events occurring subsequent to removal that reduce the amount recoverable (whether beyond the plaintiffs control or the result of her own volition) do not oust a court's jurisdiction once it has attached. See id. There is a difference, however, between evidence that clarifies a complaint that previously left the jurisdictional question ambiguous and evidence introduced by a plaintiff that seeks to reduce, not clarify, her demand after removal. See Marcel v. Pool Co., 5 F.3d 81, 85 (5th Cir. 1993); see also Gwyn, 955 F. Supp. at 46 ("[U]ntil jurisdiction becomes determinate, the court may consider any evidence of the amount in controversy."). In the latter instance, once jurisdiction is established by a determinate complaint (when federal jurisdiction is clear from the face of the complaint), jurisdiction cannot be divested by unilateral post-removal action taken or stipulations made by the plaintiff
In this case, the Court begins its assessment of the amount in controversy with Ms. Corbelle's complaint. The complaint, as noted above, does not demand a specific dollar amount, presumably, to comply with California Code of Civil Procedure § 425.10(b). The Court, therefore, must examine the allegations in the complaint to determine if it is facially apparent that the jurisdictional amount is in controversy. Because Ms. Corbelle's complaint contains allegations that she sustained serious and permanent injuries, that she has incurred and will continue to incur medical expenses, and that she has lost and will continue to lose wages, it is clear that the amount in controversy is not a small sum. However, the Court is not persuaded that these allegations alone establish that it is more likely than not that the amount in controversy exceeds $75,000. Cf. King v. Wal-Mart Stores, Inc., 940 F. Supp. 213, 216-17 (S.D. Ind. 1996) (concluding that defendant did not establish even a reasonable possibility that the amount in controversy exceeded the requisite jurisdiction amount when defendant simply relied on plaintiffs general allegations in complaint that she incurred various medical expenses, suffered injuries, and lost wages when she slipped and fell). There are no specific allegations as to the nature of the injury, treatment, diagnosis and prognosis; nor is there a clear allegation as to the magnitude of lost wages (past and future), Ms. Corbelle's ability to mitigate those losses, and so forth. This is not a case where the complaint alleges wrongful death or permanent disability or other such facts that would clearly establish an amount in controversy in excess of $75,000. The complaint is therefore indeterminate of federal jurisdiction.
The Court thus turns to other evidence probative to the amount in controversy at the time of removal. According to Ms. Corbelle, her written discovery responses show that, at the time of removal, she was claiming only $6,500 in medical expenses, $7,800 in possible future medical expenses, $500 in lost wages, nothing for loss of future earnings, and $50,000 in emotional distress. In response, Sears argues that Ms. Corbelle's discovery responses should be given little weight because, at the time they were provided (i.e., after she filed her motion to remand), Ms. Corbelle had a clear motive to give responses that would support a remand. Sears contends that Ms. Corbelle's complaint and deposition testimony, both of which preceded the removal, provide a more accurate assessment of the amount in controversy. According to Sears, the complaint and deposition testimony demonstrate that the amount in controversy likely exceeds $75,000 and Ms. Corbelle's more recent discovery responses are simply an attempt to backtrack from what she had earlier pled or testified about.
There is some persuasiveness to Sears's argument. Ms. Corbelle's pre-removal complaint, for example, included a prayer for loss of future earnings but, in her post-removal written discovery responses, she disavowed that she was seeking any such damages. There is some evidence, therefore, that Ms. Corbelle may be "backtracking." However, the Court concludes that notwithstanding this point, Defendant has not proven jurisdiction.
First, under Sanchez, it is Sears's burden to demonstrate by a preponderance of the evidence that the amount in controversy exceeds $75,000. See Sanchez, 102 F.3d at 404. The defendant must show not merely the possibility but that it "is more likely than not" that the amount in controversy exceeds $75,000. Second, in assessing whether Sears has met that burden, the Court must assess the overall quality of the evidence. Here, there is little or no objective evidence that Ms. Corbelle's claims are worth even $65,000, as Ms. Corbelle has claimed in her written discovery responses. For the three years since the incident, Ms. Corbelle has not been able to produce any documents or other hard evidence supporting her damages claims except for a handful of medical records. Other than the approximately $7,000 in medical expenses and lost wages, Ms. Corbelle concedes there is no documentation or medical evidence to support her claims of injury three years after the accident; her primary evidence is her own subjective descriptions. It appears that, at best, there is a claim of $15,000 in special damages (half of which is undocumented). Given the lack of objective evidence, the Court concludes that Sears has failed to meet its burden in showing that Ms. Corbelle's claims more likely than not exceed $75,000.
The Court's conclusion that Sears has failed to carry its burden of proof is substantiated by the fact that defendant has had two opportunities to conduct limited discovery into Mr. Corbelle's claims, once in the first suit during which Ms. Corbelle's deposition was taken and some of her medical records subpoenaed; second, during the instant case. Other than Ms. Corbelle's unsubstantiated deposition testimony, Sears has not produced any records or other evidence of serious injury or significant damages.
IV. CONCLUSION
For the foregoing reasons, the Court grants Ms. Corbelle's request to remand to state court.
IT IS SO ORDERED.