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Neville v. Value City Dep't Stores

July 18, 2008

CHERYL NEVILLE, PLAINTIFF,
v.
VALUE CITY DEPARTMENT STORES, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM & ORDER

I. INTRODUCTION

Plaintiff Cheryl Neville has filed two separate and pending Motions to Remand (Docs. 30 & 47). Defendant Value City Department Stores, LLC, has filed opposing responses to each (Docs. 33 & 52);*fn1 Plaintiff has replied, in turn (Docs. 39 & 54). Both Motions are now ripe for determination. For the reasons discussed herein, Plaintiff's requests to remand this case are denied.

II. BACKGROUND

Plaintiff filed suit on November 14, 2006, in the Circuit Court of St. Clair County, Illinois (Doc. 5, Ex. 2 - Complaint). Her claims are based upon a theory of premise liability for injuries she allegedly sustained when she tripped over a bin pallet that was located on the end of a checkout aisle while shopping at Defendant's store. Defendant removed this case on the basis of diversity jurisdiction, 28 U.S.C. § 1332 (Doc. 5). The Notice of Removal was filed on January 19, 2007. In the Notice, Defendant states that it was not served with the pleadings until December 21, 2006 (Doc. 5, ¶ 1) and therefore, the removal was timely pursuant to 28 U.S.C. § 1441.

III. DISCUSSION

A. Legal Standard

1. Removal

The removal statute, 28 U.S.C. § 1441, is construed narrowly and doubts concerning removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993).Defendants bear the burden to present evidence of federal jurisdiction once the existence of that jurisdiction is fairly cast into doubt. See In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997). "A defendant meets this burden by supporting [its] allegations of jurisdiction with 'competent proof,' which in [the Seventh Circuit] requires the defendant to offer evidence which proves 'to a reasonable probability that jurisdiction exists.'" Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997)(citations omitted). However, if the district court lacks subject matter jurisdiction, the action must be remanded to state court pursuant to 28 U.S.C. § 1447(c).

2. Diversity Jurisdiction

The statute regarding diversity jurisdiction, 28 U.S.C. § 1332,requires complete diversity between the parties plus an amount in controversy which exceeds $75,000, exclusive of interest and costs. Complete diversity means that "none of the parties on either side of the litigation may be a citizen of the state of which a party on the other side is a citizen." Howell v. Tribune Entertainment Co., 106 F.3d 215, 217 (7th Cir. 1997) (citations omitted). The status of the case as disclosed by a plaintiff's complaint is controlling on the issue as to whether the case is removable. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 291 (1938). When the amount in controversy is at issue, if the face of the complaint establishes that the suit cannot involve the necessary amount, the case should be remanded. Id. at 291-92. "Accepted wisdom" provides that a plaintiff's evaluation of the stakes must be respected when deciding whether a claim meets the amount in controversy requirement for federal diversity jurisdiction. Barbers, Hairstyling for Men & Women, Inc. v. Bishop, 132 F.3d 1203, 1205 (7th Cir. 1997) (citing St. Paul Mercury, 303 U.S. at 289). However, a plaintiff "may not manipulate the process" to defeat federal jurisdiction and force a remand once the case has been properly removed. Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir. 1993)(citations omitted).

B. First Motion to Remand

In her first Motion to Remand (Doc. 30), filed on May 22, 2008, Plaintiff complains that the removal was improper because Value City Department Stores, LLC ("VCDS, LLC"), never filed for removal, never joined in the Notice of Removal or consented to the removal (Doc. 30, p. 1). Plaintiff filed her Motion to Remand more than thirty days subsequent to the filing of Defendant's Notice of Removal, which is typically considered "untimely" under the federal rules when based upon a procedural defect. 28 U.S.C. § 1447(c). However, Plaintiff contends this time requirement for seeking a remand should be equitably tolled due to Defendant's failure to disclose the proper party defendant to Plaintiff (or the Court) in a timely manner.

Plaintiff claims she was initially misled by Defendant's February 5, 2007 communication to her stating that the proper Value City entity in this case was Value City Department Stores, Inc. ("VCDS, Inc.") (Doc. 30, p. 2, Ex. B). Also misleading to Plaintiff was VCDS, Inc.'s response to the Court's July 6, 2007 sua sponte Order (Doc. 13), which directed Defendant to file a memorandum to properly establish the citizenship of all named defendants in the case in order to show complete diversity of citizenship. In its responding jurisdictional memorandum (Doc. 14), Plaintiff notes that defendant VCDS, Inc., stated, "[a]ll of the Value City entities consent to the removal of this matter" (Doc. 30, p. 4). Based on a proper showing of diversity of citizenship, the Court entered an Order on July 25, 2007 (Doc. 15), acknowledging the jurisdictional memorandum as sufficiently substantiating the existence of diversity jurisdiction. Yet, it was not until several months later, on March 28, 2008, that VCDS, Inc., finally communicated to Plaintiff that it was not the proper party defendant in the case; VCDS, LLC, was instead the proper party defendant. Plaintiff was advised that counsel for VCDS, Inc., would be withdrawing as counsel and entering their appearance on behalf of VCDS, LLC. Plaintiff believes this is indicative that counsel had no previous authority to represent to the Court in its jurisdictional memorandum that ...


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