Removing That Slip and Fall Case to Federal Court

RETAIL AND HOSPITALITY Strategies to Consider Removing That Slip and Fall Case

By Alan C. Nash and to Federal Court Patrice M. Turenne

Dart Cherokee v. Owens, The road to federal court for defendants has become 135 S. Ct. 547 (2014), increasingly more treacherous, especially with slip and has made diversity fall cases. This is due to the United States Supreme Court jurisdiction removal decision in the Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547 (2014). This article may be removed by a defendant or the de- treacherous in slip and will provide defense counsel with an over- fendants to any federal district court em- view of the federal diversity jurisdiction bracing the place where the state court action fall cases. Here’s how to landscape after theDart Cherokee decision, was originally filed and is pending. Under 28 as well as several strategies that defense U.S.C. §1446, a defendant need only provide navigate the treachery. counsel should consider using to ensure a short and plain statement of the grounds success when attempting to remove a case for removal. While this may seem rather to federal court. The pertinent holding straightforward, the Supreme Court’s re- from Dart Cherokee is particularly impor- cent decision really shook things up. In ac- tant because it relates to the evidence nec- cordance with 28 U.S.C. §1446, defendants essary to gain entry to and stay in federal have 30 days to file a notice of removal to re- court with a slip and fall case, especially move a case from state to federal court. The because in such cases an injured plaintiff’s 30-day time window begins to run from the claim for damages is often nebulous. date of service upon any defendant or when Under 28 U.S.C. §1332, district courts any defendant in an action becomes aware have original jurisdiction over all civil ac- of the ability to remove the case based upon tions when the amount in controversy ex- any pleading, motion, order, or other paper. ceeds a sum or value of $75,000, excluding interest and costs, and there is complete di- Dart Cherokee Basin Operating versity between all plaintiffs and all defend- Company LLC v. Owens ants. Therefore, pursuant to 28 U.S.C. §1441, In December of 2014, the United States once there is original jurisdiction, an action Supreme Court granted certiorari in Dart

■ Alan Carroll (A.C.) Nash and Patrice M. Turenne are attorneys with the civil defense litigation law firm Marshall Dennehey Warner Coleman & Goggin. Mr. Nash works in the firm’s Fort Lauderdale, Florida, office and focuses his practice on the defense of claims made and suits brought against insureds and businesses in product, automobile, commercial, construction, and premises liability matters. Ms. Turenne is resident in the firm’s King of Prussia, Pennsylvania, office and concentrates her practice on the defense of lawsuits brought against insureds and businesses in trucking and transportation, automobile, and product and premises liability matters.

Cherokee to resolve a circuit split and Of course, evidence is not an issue when age awards ranged between $60,000 and address whether or not a defendant must a plaintiff’s state court complaint demands, $40 million. Therefore, the court held that provide evidence to support an averment in good faith, a stated sum. In such a case, the defendant had established by a prepon- in a notice of removal that the amount the stated sum will then be deemed the derance of the evidence that the amount in in controversy requirement has been met amount in controversy. However, in many controversy exceeded $75,000. for the purpose of establishing diver- states where a complaint can state noth- In McGill v. Home Depot, Inc., No. 15-CV- sity jurisdiction. ing more than a general request for unliq- 03029-KAW, 2015 WL 5441032, at *1 (N.D. After an analysis of legislative and case uidated damages, it is much more likely Cal. Sept. 15, 2015), the plaintiff filed a per- history, the Court in Dart Cherokee held that either a plaintiff or a judge will ques- sonal injury action after experiencing an in- tion the amount in controversy, thus invok- jury after a fall in the defendant’s store. The ing the requirement of evidence. While the plaintiff’s complaint did not initially specify Dart Cherokee decision should have cleared an amount in controversy. However, when The pertinent holding up the differences in the ways that the the plaintiff filed his case management con- circuit courts handle removal cases, that ference statement, he “stated that his dam- from Dart Cherokee is does not seem to have happened. There- ages [for lost wages, medical expenses, fore, the following overview of cases that general damages, and compensatory dam- particularly important have been decided since the Dart Cherokee ages], exceeded $100,000.” Following that decision will hopefully assist defense prac- court filing, and more than five months -af because it relates to the titioners as they attempt to navigate the ter the filing of the initial complaint, the de- new landscape. fendant “removed the case to federal court evidence necessary to on the grounds that, prior to the filing of The California Perspective the case management statement, it was gain entry to and stay in In Melonson v. Target Corp., No. 2:15-CV- unaware that the amount in controversy 03526-ODW, 2015 WL 4127909, at *2 (C.D. exceeded $75,000, such that federal juris- federal court with a slip Cal. July 8, 2015), the plaintiff in this per- diction exist[ed]” because there was com- sonal injury action argued that the United plete diversity of citizenship between the and fall case, especially States District Court for the Central District parties. Under Section 1446, there are es- of California did not have subject-matter ju- sentially two 30-day periods during which because in such cases an risdiction because the defendant failed to a defendant can remove an action, and the prove by a preponderance of the evidence second applies when the case, based upon injured plaintiff’s claim for that the amount in controversy exceeded the initial pleading, is not on its face remov- $75,000. The plaintiff was injured while able. While the plaintiff argued that the no- damages is often nebulous. working in a warehouse owned by the de- tice of removal was untimely, the court held fendant. Since the plaintiff challenged the that even though the nature of the plain- defendant’s “plausible allegation” that the tiff’s injuries as outlined in the complaint that a defendant does not need to submit amount in controversy requirement had provided a clue that the case may have been evidence in a notice of removal and need been met, the court looked to the defendant’s removable, the filing of the notice within 30 only include a short and plain statement opposition brief to determine whether or not days of the filing of the case management regarding the amount in controversy. And sufficient evidence establishing the amount statement was timely. “when a defendant seeks federal-court in controversy had been provided, in accor- adjudication, the defendant’s amount-in- dance with Dart Cherokee. The Louisiana Perspective controversy allegation should be accepted In its opposition, the defendant offered In Hodnett v. Logan’s Roadhouse, Inc., No. when not contested by the plaintiff or proposed damages calculations. Specifi- CIV.A. 15-2158, 2015 WL 5675854, at *2 questioned by the court.” However, when cally, the defendant argued that the plain- (W.D. La. Sept. 25, 2015), the United States a defendant’s assertion regarding the tiff’s complaint sought “special damages, District Court for the Western District of amount in controversy is challenged, both general damages (to include emotional dis- Louisiana questioned whether a remov- sides must submit proof, and the court tress), punitive damages, loss of income, ing defendant could still “satisfy its bur- then must decide “by a preponderance attorney’s fees, interest and restitution.” den of supporting federal jurisdiction by of the evidence, whether the amount-in- The defendant argued that the plaintiff’s establishing that it was facially apparent controversy requirement has been sat- lost wages alone would exceed $75,000. The from the petition that the claims probably isfied.” But “defendants do not need to defendant also argued that several of the exceed $75,000” after theDart Cherokee prove to a legal certainty that the amount statutory causes of action pleaded by the decision. The court granted the plaintiff’s in controversy requirement has been met.” plaintiff authorized attorney’s fees, which motion to remand after holding that both Instead, “defendants may simply allege or would likely have reached $40,000 by the the severity of the plaintiff’s injuries and assert that the jurisdictional threshold has time that the case went to trial. The plain- damages remained ambiguous and thus been met.” tiff also cited cases in which punitive dam- did not support removal. However, the

54 ■ For The Defense ■ February 2016 court noted that the case could become 28 U.S.C. §1441(b), specifies that “[a]ny civil The decision stated that the defendants removable at a later point in time if the action of which the district courts have in Leonard “failed to carry their burden” severity of the plaintiff’s injuries and the original jurisdiction founded on a claim or because their notice of removal contained amount of damages became more cer- right arising under the Constitution, trea- only unsupported assumptions that the tain in a way that would establish that the ties or laws of the United States shall be amount in controversy had been met. amount in controversy exceeded $75,000. removable without regard to the citizen- The Leonard court relied on the Williams Alternatively, in Akins v. Ace Am. Ins. ship or residence of the parties.” “Any other court’s ruling from the previous year. Co., No. CIV.A. 14-653-SDD-SC, 2015 WL such action shall be removable only if none The decision inWilliams v. Best Buy Co., 566678, at *3 (M.D. La. Feb. 10, 2015), the of the parties in interest properly joined 269 F.3d 1316, 1319–20 (11th Cir. 2001), pre- court held that based upon the plaintiff’s and served as defendants is a citizen of the claimed injuries, it was facially appar- State in which such action is brought.” ent that her claims exceeded the $75,000 Federal courts are courts of limited ju- threshold, exclusive of interest and costs. risdiction. The presumption is that a fed- A failed removal and The plaintiff was injured after a ceiling tile eral court lacks jurisdiction in a particular fell on her while she was dining in a fast case until it has been demonstrated that subsequent remand food restaurant owned by one of the de- jurisdiction over the subject matter exists. fendants. The plaintiff alleged some non- Fitzgerald v. Seaboard System Railroad, Inc., can carry significant specific injuries to her neck, but she also 760 F.2d 1249 (11th Cir. 1985); 28 U.S.C. alleged specific injuries to her back, in- §1441(b). Original jurisdiction exists in financial penalties. cluding “annular tears and bulging discs any suit involving amounts in controversy at L4–5 and L5–S1.” The court held that the of more than $75,000 between citizens of plaintiff’s injuries were serious and could different states. 28 U.S.C. §1332(a). How- viously had explained the burden of proof require surgery if more conservative treat- ever, most complaints do not mention the that a court should require, at least in the ment and medication was not successful, amount of damages sought for a plaintiff’s Eleventh Circuit, when considering the and as a result, the court also held that the injury. When a party seeks to remove an ac- amount in controversy requirement when defendant adequately established that the tion on the basis of diversity in a case, if the a plaintiff’s complaint does not include the amount in controversy exceeded $75,000. complaint does not make clear that more amount of damages requested. Williams Similarly, in Simpson v. Dollar Tree Stores, than $75,000 is in controversy, the remov- established the preponderance of evidence Inc., No. CIV.A. 15-2107, 2015 WL 5566704, ing party must prove by a preponderance of standard. The plaintiff in Williams filed at *2 (W.D. La. Sept. 21, 2015), the court the evidence that the amount in controversy a complaint in a state court in Georgia, held that the circumstances surrounding meets the jurisdictional threshold. Williams alleging personal injuries and requesting the plaintiff’s injury, as well as the nature v. Best Buy Co., 269 F.3d 1316, 1319–20 (11th the damages, which included “substantial of those injuries, made it facially appar- Cir. 2001); Matheson v. Progressive Specialty medical expenses, suffered lost wages, and ent that the defendant had satisfied by a Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). experienced a diminished earning capac- preponderance of the evidence that the The burden of proof for removal, when ity.” Williams alleged that she would “con- amount in controversy exceeded $75,000. a plaintiff’s complaint does not state the tinue to experience each of these losses for The husband and wife plaintiffs filed a amount of damages sought, is discussed an indefinite time into the future. For these complaint against the defendant store for in Leonard v. Enterprise Rent a Car, 279 injuries, the complaint seeks general dam- injuries suffered by the wife plaintiff dur- F.3d 967, 972 (11th Cir. 2002). The deci- ages, special damages and punitive dam- ing a robbery on the defendant’s premises. sion explains, ages in unspecified amounts.” The wife plaintiff was injured by a blow A removing defendant bears the bur- The defendant in Williams removed the to the head with a weapon, which caused den of proving proper federal jurisdic- case, alleging diversity jurisdiction, but her to fall to the pavement. She was bleed- tion. Where a plaintiff fails to specify the failed to provide any additional evidence ing from a head wound while she crawled total amount of damages demanded… about the amount in controversy. The court to the door of the defendant’s business. a defendant seeking removal based on held that “[a] conclusory allegation in the None of the store employees inside would diversity jurisdiction must prove by notice of removal that the jurisdictional open the door, and they refused to provide a preponderance of the evidence that amount is satisfied, without setting forth her with any assistance. To quote from the amount in controversy exceeds the the underlying facts supporting such an the decision, “Plaintiffs allege[d] severe $75,000 jurisdictional requirement. “A assertion, is insufficient to meet the defen- physical injuries and medical expenses, conclusory allegation in the notice of dant’s burden.” as well as mental anguish from the trau- removal that the jurisdictional amount A failed removal and subsequent remand matic event.” is satisfied, without setting forth the can carry significant financial penalties. underlying facts supporting such an See Gray v. New York Life Ins. Co., 906 F. The Florida Perspective assertion, is insufficient to meet the Supp. 628 (N.D. Ala. 1995). Federal statute First, let us briefly review the history of defendant’s burden.” 28 U.S.C. §1447(c) explains that “[a]n order diversity jurisdiction. The removal statute, Id. (internal citations omitted). remanding the case may require payment

For The Defense ■ February 2016 ■ 55 RETAIL AND HOSPITALITY of just costs and any actual expenses, in- The following two may be especially helpful fendant must submit evidence to satisfy the cluding attorney fees, incurred as a result of to defense practitioners in Florida. evidentiary requirement. See Vizant Tech- the removal.” The potential financial penal- In Hernandez v. Burlington Coat Factory nologies, LLC v. Ocean State Jobbers, Inc., ties may operate to streamline the federal of Florida, LLC, No. 2:15-CV-403-FTM- No. CIV.A. 14-6977, 2015 WL 500480, at *2 court dockets and reduce the amount of 29CM, 2015 WL 5008863, at *1 (M.D. (E.D. Pa. Feb. 5, 2015). If a court is required improperly removed cases. In Gray, the U.S. Fla. Aug. 20, 2015), a premises liability to guess whether or not the amount in con- District Court for the Northern District of action, the plaintiff challenged whether troversy has been met, the defendant in Alabama sanctioned counsel, observing the defendant store owner had established the case has failed to establish the requi- that “[a] cursory examination of the appli- that the amount in controversy exceeded site evidence for a determination in the $75,000. As evidence of the amount in defendant’s favor. See Stevenson v. Wal- controversy, the defendant cited a pre-suit Mart Stores, Inc., No. CIV.A. 14-4073, 2015 demand letter “in which Plaintiff offered WL 158811, at *3 (E.D. Pa. Jan. 13, 2015). A Because this is an to resolve her claim in full in exchange subjective appraisal of a plaintiff’s claims for $400,000.” In support of the $400,000 based upon the seriousness of the alleged evolving area of law, you demand, the letter stated that the plain- injuries is not sufficient to meet the prepon- tiff suffered permanent damage to her derance burden. may want to create an alert right knee, left shoulder, and left foot as In Jones v. Gemalto, Inc. ., No. CIV.A. a result of her slip and fall. The letter also 15-00673, 2015 WL 3948108, at *1 (E.D. in your legal research engine stated that the plaintiff required surgery Pa. June 29, 2015), the plaintiff, John R. as a result of her injuries and continued to Jones, filed a complaint against his previ- to remain aware of changes experience ongoing pain. The court held ous employer, defendant, Gemalto, Inc., that while settlement offers commonly for discrimination and an alleged assault as new decisions are reflect some “puffing and posturing,” a -let that occurred while he was working for the ter supported by documented medical bills company. To determine whether or not the released in your jurisdiction. and specific diagnosis information “may requisite amount in controversy for fed- be sufficient to plausibly allege that the eral jurisdiction based upon diversity of amount in controversy exceeds $75,000.” citizenship had been met, the court exam- cable law would have revealed that the Similarly, in Mangano v. Garden Fresh ined the plaintiff’s motion for remand and federal district court does not have juris- Rest. Corp., No. 215CV477FTM99MRM, the defendant’s initial notice of removal. diction over the case.” The Gray court fur- 2015 WL 5953346, at *1 (M.D. Fla. Oct. 13, The court held that the defendant estab- ther explained: 2015), the defendant in this slip and fall lished that the amount in controversy had The Judicial Improvements and Access case filed its notice of removal after receiv- been satisfied. The defendant was able to to Justice Act of 1988 (Pub. L. 100- ing the plaintiff’s document production of satisfy that the amount in controversy 702) made substantial changes in 28 medical bills. The court held that the com- had been met by calculating the plaintiff’s U.S.C. §§1446 and 1447. Plainly, one bination of the plaintiff’s medical bills potential back pay award and by providing of the Congressional purposes was to ($39,289 of which were paid by Medicare), documentation to support the calculation. narrow the removal opportunity. The her husband’s loss of consortium claim, Specifically, the defendant provided a dec- message was: “Remove at your peril!” her potential pain and suffering, and other laration with its notice of removal that con- This Congressional intent must be kept general damages made it plausible that the firmed the plaintiff’s hourly wage and the in mind as the 1988 changes are con- amount in controversy exceeded $75,000. average number of hours worked per week strued and applied to concrete situa- from the date of termination. tions. For instance, while doing away The Pennsylvania Perspective Should you encounter this issue in Penn- with the long-required removal bond, Pennsylvania, similar to many other states, sylvania, you may have success by review- the new §1446(a) expressly requires that does not allow plaintiffs to specify a sum ing jury verdicts and including summaries the notice of removal be signed pursu- for unliquidated damages in a complaint. of those cases that have similar injuries, ant to Rule 11, F. R. Civ. P. This reference Under Pennsylvania Rule of Civil Proce- and if possible, factual situations in your to Rule 11 is redundant because Rule 11 dure 1021(b), “[a]ny pleading demand- response to an amount in controversy chal- would apply anyway, but the reference ing relief for unliquidated damages shall lenge. We suggest that you stick to federal constitutes an extra-special warning to not claim any specific sum.” Thus, when a court cases and only use state court deci- removing defendants that they are sub- plaintiff demands damages in an amount in sions, which will only be persuasive, if you ject to sanctions if the averments in their excess of a specified sum, the demand falls cannot find cases from a federal court in notice of removal are not well grounded within the exception to the diversity juris- your jurisdiction. For example, the follow- in fact and warranted by law. diction rule, and the defendant must estab- ing cases may be helpful if your plaintiff Fast forward to 2015. After the Dart lish “by the preponderance of the evidence, has a tibial plateau fracture. Cherokee decision, federal courts within that the amount in controversy exceeds the Recently in Jacoby v. Admiral Merchants the jurisdiction decided a number of cases. amount specified in section 1332(a).” A de- Motor Freight, Inc. et al., 2010 PA Jury Ver-

56 ■ For The Defense ■ February 2016 dicts Review Lexis 190 (W.D. Pa. 2010), a the plaintiff’s damages, and base your jury awarded $750,000 to a plaintiff who notice of removal on the damages claim suffered a tibial plateau fracture as a result in the statement or other document. of a tractor-trailer collision. The plaintiff 3. Conduct discovery as early as possible: had to undergo three surgeries as a result the more support you can provide in of his accident-related injuries. In this case, your initial notice of removal, the eas- “[t]he jury found the defendants 100 per- ier it will be if your removal attempt cent negligent and awarded the plaintiff is challenged. $750,000 in damages.” 4. Consider seeking a stipulation signed by In Cannavine v. CSX Transportation, a plaintiff establishing that the amount Inc., 2006 Jury Verdicts Lexis 41112 (W.D. in controversy has been met. Of course, Pa. 2006), the jury awarded the plain- if you can get a plaintiff to sign a stipu- tiff, a freight conductor for the defendant, lation that the amount in controversy $395,000 in damages for injuries that he has been met, it will make your life suffered, which included a tibial plateau much easier. fracture that required surgical interven- 5. Finally… if at first you don’t succeed… tion, as a result of a train collision. try, try, again—as soon as you have suf- Finally, in Gonzales v. U.S. et al., 2007 ficient evidence to support your notice of Jury Verdicts Lexis 36728 (D.N.J. 2007), removal and can file it in good faith. the jury awarded the plaintiff $100,000 for knee injuries that he suffered when he fell on accumulated ice and snow while plac- ing mail on an outdoor conveyor belt at the Newark Liberty International Airport. The plaintiff was required to undergo surgery for partial medial meniscectomy and chondroplasty of the tibial plateau, medial femoral condyle and patella with partial synovectomy. The plaintiff sued the United States Postal Service, his employer at the time of the accident, and various other defendants. The case went to trial against the U.S. Postal Service, and the jury ruled that the U.S. Postal Service failed to keep its facility in a reasonably safe condition and that failure was a proximate cause of the plaintiff’s injury.

Tips for Defense Practitioners Based upon the case law overview above, we have put together the following list of tips that we believe may help you navigate the new landscape created by the Dart Cherokee Basin Operating Company, LLC decision. Because this is an evolving area of law, you may want to create an alert in your legal research engine to remain aware of changes as new decisions are released in your jurisdiction. 1. Provide a court with summaries of jury verdicts in cases in which a plaintiff’s injuries are analogous to the injuries in your case. 2. Wait until a plaintiff files a case management conference statement, or a similar paper that sets forth a specified sum for

For The Defense ■ February 2016 ■ 57