Helmly v. Kmart Corporation et al, No. 6:2016cv00023 - Document 25 (S.D. Ga. 2016)

Court Description: ORDER denying Plaintiff's 12 Motion to Remand to State Court. Signed by Judge J. Randal Hall on 9/27/2016. (jah)

Download PDF
Helmly v. Kmart Corporation et al Doc. 25 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA STATESBORO DIVISION DEBBIE HELMLY, * Plaintiff, * * v, * KMART CORPORATION, SEARS CV 616-023 * HOLDINGS MANAGEMENT * CORPORATION, DOES 1-5, * * and JOHN Defendants. ORDER Currently before the Court is Plaintiff's motion to remand. (Doc. 12.) Because Defendants timely removed to this Court, Debbie Helmly Plaintiff's motion is DENIED. I. This case arises Background out of injuries Plaintiff sustained when she tripped and fell while shopping at Kmart. In November in Statesboro, 2013, Plaintiff Georgia. (Doc. visited 1-1 1 the 9.) Kmart While located in the garden department of the store, Plaintiff tripped on a lawnmower wheel that extended into the customer walkway. (Id. 11 10-11.) Seeking to hold Defendants Kmart Corporation and Sears Holdings Dockets.Justia.com Management Corporation liable for her injuries, suit in October 2015 in the State Court Plaintiff filed of Bulloch County, Georgia. Plaintiff's the dangerous 15.) complaint condition Therefore, alleges the lawnmower according to fall, wages, will will M Plaintiff incur continue 37, 55.) to claims future suffer, Moreover, suffer, physical, (Id. M 38, damages for "past, physical and mental wheel she created. and emotional incurred past has pain and lost suffered, and capacity." (Id. and will continue to pain Plaintiff's and 1 As a result she "has suffered, present, (Id. 21-56.) a diminished earning Accordingly, about negligently "has earnings and knew Defendants (Id. M that lost mental 56.) Defendants Plaintiff, failed to keep the premises safe. of the that future suffering, and suffering." complaint medical past and requests expenses, future lost wages, diminished earning capacity and all other damages allowed by law." (Id. at 8.) Plaintiff's complaint does not request a specific amount of damages. Two weeks Defendants, insurance Plaintiff's after her counsel adjuster. served received (Doc. counsel sustained injuries Plaintiff 12-3 informed the a 1 her call 7.) complaint from During adjuster that on Defendants' this call, Plaintiff to her neck and back and had undergone two surgeries. (Id. 1 8.) The settlement was not possible. On January discovery, her 12-5.) during counsel responses to In that e-mail, in (Id.) and of the On January 27, first set of accumulated Accordingly, to out this Plaintiff in based Bulloch County. round Defendants' of counsel discovery requests. Plaintiff's counsel explained that hospital on to (Doc. and medical on February 26, moves early late because Plaintiff had and had undergone surgery. 2016, Plaintiff responded to Defendants' $85,704.15 now that initial Defendants' interrogatories Court the e-mailed Plaintiff's discovery responses were been determined (Id.) 2016, Plaintiff's regarding (Doc. 22, adjuster 2016, diversity remand 12.) the revealed bills. that Plaintiff (Doc. Defendants 1-9 to 10.) removed the case jurisdiction.1 case at had the (Doc. State Court 1.) of The Court addresses the merits of Plaintiff's motion below. II. Under filed in 28 U.S.C § 1441, state court to Discussion a defendant 1 purposes. remove an action federal court if the action could have originally been brought in federal court. diverse and the amount may When the parties are in controversy exceeds $75,000, original It is undisputed that the parties are diverse for jurisdictional Plaintiff is a citizen of Georgia, Defendant Sears Holdings Management Company is a citizen of Delaware and Illinois, and Defendant Kmart Corporation is a citizen of Michigan and Illinois. (Doc. 1.) jurisdiction exists are diverse Plaintiff, and under the therefore, 28 U.S.C. amount does in not § 1332. Here, controversy dispute the parties exceeds $75,000. jurisdiction. Rather, she contends that Defendants did not timely remove this action. Generally, date the a defendant must remove within thirty days receives it § 1446(b)(1). after initial pleading. 28 U.S.C. But when an action is not removable based on the initial pleading, days the from "a notice of removal may be filed within 30 receipt amended pleading, by the motion, defendant ... of a copy of an order or other paper from which it may first be ascertained that the case is one which is or has become removable." A 28 U.S.C. removing jurisdiction, § 1446(b)(3). defendant Diaz v. has the burden Sheppard, to establish 85 F.3d 1502, 1505 federal (11th Cir. 1996), and must point to specific facts supporting jurisdiction, see Williams v. Best Buy Co., 269 F.3d 1316, 1319-20 2001). "[w]here, Indeed, (11th Cir. as here, the plaintiff has not pled a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement." 1319. an "[T]he documents unambiguous jurisdiction." n.63 (11th Cir. received by the defendant must contain statement that Lowery v. Ala. 2007). Williams, 269 F.3d at clearly Power Co., establishes federal 483 F.3d 1184, 1213 In this case, Plaintiff maintains that it was apparent from her initial pleading that this case was removable, were required received to her Defendants within complaint. were counsel's remove days Alternatively, required to conversation thirty so Defendants from the they asserts Plaintiff date that remove within thirty days with Defendants' insurance from her adjuster or within thirty days from her counsel's January 22 e-mail. 1. Removability based on Plaintiff s complaint When a state-court amount of damages, complaint in controversy exceeds Williams, 269 not claim a specific a case may be removed based on the complaint only if it is "facially apparent amount does F.3d at 1319. from the complaint the jurisdictional And while the that the requirement." Court may use its "judicial experience and common sense," Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1062 (11th Cir. 2010), the allegations in the complaint must reasonably support the conclusion that the amount in controversy is satisfied, Corp., No. l:14-cv-740-WSD, Oct. 29, 2014) . will not suffice. (granting a 2014 see Cheatwood v. WL 5529153, at *2 QuickTrip (N.D. Ga. Generalized facts and conclusory allegations motion See to Cheatwood, remand 2014 where WL the 5529153, complaint at *3-4 alleged unspecified past and future damages and generalized facts about the cause of the injuries, because the allegations did not prove, by a preponderance of the evidence, that the amount in controversy was satisfied). Here, Plaintiff's surrounding the events regarding her complaint claims suffer complaint of her damages. only injuries to alleges fall and her she lower as suffered back basic conclusory Specifically, that only and statements noted and will neck, details above, continue that she her to was accumulating unspecified medical expenses, and that she suffered emotional and physical pain and suffering. Considering the lack of detail based in the solely on prove, by complaint, this pleading, a preponderance controversy was had Defendants met. they would have of the evidence, Thus, attempted to the Court remove been unable to the amount in that rejects Plaintiff's argument and DENIES her motion to remand on this issue. 2. Removability based on "other paper" When a plaintiff's complaint allegations to support removal, does not provide sufficient a defendant may remove within thirty days from the date it receives "other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3). Documents constituting other paper include discovery responses, settlement offers, deposition testimony, demand letters, and e-mails. See Lowery, the 483 F.3d at 1212 n.62. Oral communications, other hand, are not typically considered other paper. on See Smith v. Bally's Holiday, Williams v. WL at *4 use of the word paper' narrowly (M.D. Ala. 'paper' should 1451, LP, Feb. a 15, written certain transcribed during depositions. 1453-55 No. 2011) Ga. ("Section 2011 1446(b)'s example, that Courts statements for 1994); if not mandates, document.") . oral — (N.D. 2:10-CV-951-WKW, strongly suggests, be excepted contemporaneously at Supp. Litton Loan Servicing, 521624, 'other 843 F. have that are statements See Litton Loan Servicing, made 2011 WL 521624, *5. First, Plaintiff with Defendants' which declines could have Plaintiff's to that her counsel's ascertained argument that fails this, because case the was Court consider this off-the-record telephone conversation other paper for purposes of § 1446. See id. oral settlement demand and the voicemail requirement of § 1446(b), documents conversation insurance adjuster constitutes other paper from Defendants removable. argues created communications fit by in ("[Plaintiff's] fail the 'other paper' because they are plainly not written the the plaintiff. limited Nor exceptions do that these oral satisfy the 'other paper' requirement . . . ."). Plaintiff also argues that Defendants were required to remove within thirty days from the date their counsel received Plaintiff's counsel's January 22 e-mail. satisfies the written requirement 7 of Because this document other paper, the only disputed issue ascertainable. that her is In whether this client's Plaintiff had been the e-mail, and responses out of the difficulties recovering from surgery. however, the did not made Plaintiff's discovery in e-mail inform Defendants' removability counsel were late hospital of because after (Doc. 12-5.) counsel explained facing The e-mail, the severity of surgery or provide the cost of Plaintiff's hospital visits. And this information Plaintiff that, had was delayed requested responding in to. the The interrogatories Court is satisfied had Defendants attempted to remove based solely on this e- mail, they would have been unable to establish jurisdiction by a preponderance of the evidence. Teeberry 2013) Logistics, (finding notice of LLC, that the removability communication, 920 they F. Supp. defendants where, were at 2d did the aware 1313 have time that See Cameron v. 1309, not federal of the (N.D. Ga. unambiguous the relevant plaintiff had accumulated $62,432.45 in medical expenses and was also seeking lost wages for six months of missed work). Because this case was not removable based counsel's phone conversation with Defendants' or based on her e-mail to Defendants' Plaintiff's insurance adjuster counsel, Plaintiff's motion to remand on these issues. on the Court DENIES III. For remand the (doc. reasons 12) Conclusion explained Plaintiff's motion to is DENIED. ORDER ENTERED at Augusta, September, above, Georgia this <Z>\/^ day of 2016. HO^ORAB^^J. RANDAL HALL UNITKDy^TATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.