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 the Dart 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 prem- ises liability matters. © 2016 DRI. All rights reserved. For The Defense ■ February 2016 ■ 53 RETAIL AND HOSPITALITY 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.