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Perrin v. Dillard's Inc.

United States District Court, S.D. Illinois

July 13, 2017

TONI PERRIN, Plaintiff,
v.
DILLARD'S INC., and DILLARD'S STORE SERVICES, INC., Defendants.

          ORDER

          DAVID R. HERNDON JUDGE.

         Pending before the Court is plaintiff's motion to remand (Doc. 5) pursuant to 28 U.S.C. § 1447. Defendant opposes (Doc. 8). Based on the following, the motion to remand is DENIED.

         I. BACKGROUND

         A. Complaint and Removal

         In March 2015, plaintiff Toni Perrin (“Perrin”) filed a personal injury complaint as an arbitration proceeding in the Circuit Court of the Twentieth Judicial Circuit of St. Clair County, Illinois, naming defendants Dillard's Inc. and Dillard's Store Services, Inc. (“defendants”) (Doc. 1-1).[1] Perrin alleged that on December 29, 2013, while shopping at defendants' store she slipped and fell on vomit, suffering multiple debilitating injuries. As relevant, the complaint stated “[p]laintiff has incurred medical expenses in an amount less than Fifty Thousand Dollars ($50, 000.00) and will incur additional medical expenses in the future. That plaintiff has incurred lost wages in an amount not yet determined” (Id. at 3).[2] Perrin asserted breach of duty to maintain reasonably safe premises and requested relief in the amount of $50, 000.00 plus costs (Id.).

         On February 23, 2017, the complaint was removed to this Court asserting initial non-removability-although diversity of citizenship was alleged-because the amount in controversy was less than $50, 000.00 and, under 28 U.S.C. § 1446(b)(3), notice of removal may be filed within 30 days once defendants discovered the case became removable (Id. at 2). In support, defendants alleged receiving a letter from Perrin's attorney (Doc. 1-4) dated January 31, 2017 conveying a demand of $350, 000.00 in restitution; and, up until receiving said demand, Perrin had not amended her complaint to reflect seeking damages in excess of the initial $50, 000.00 requested relief (Doc. 1 at 2). Defendants contend Perrin failed to amend her initial complaint in bad faith in order to prevent removal within one-year of commencement as stipulated by section 1446(c) (Id. at 3).

         B. Motion to Remand

         Perrin argues improper removal due to defendants' delayed motion; and moreover, points to lack of presentation of facts which would toll the statutory one-year time period under section 1446(c)(1) (Doc. 5). Perrin proclaims defendants' removal was attempted after her case was pending in Illinois State court for more than one year, and more than thirty days after defendants knew the amount in controversy exceeded $75, 000.00 (Id. at 1).

         Specifically, she alleges that in April 2015, defendants received a summons and complaint describing-what was believed to be at the time-a soft tissue back injury claim seeking less than $50, 000.00 in relief (Id.). On December 9, 2015, arbitration proceedings were conducted where Perrin testified back surgery may be beneficial to her injuries (Id. at 2).[3] Perrin subsequently filed a motion to transfer her case to the State court law docket on December 16, 2015 (Id. at 7). As relevant, the motion stated:

1. The parties recently submitted to arbitration. Simultaneously herewith, plaintiff rejected the arbitration award and paid the rejection fee.
2. That due to recent opinions of plaintiff's treating physician it appears that plaintiff's damages will exceed the jurisdictional amount of the arbitration docket.
3. That plaintiff seeks to transfer this proceeding to the law docket and fully engage in discovery.
4. That no party will be prejudiced by the relief sought herein.

(Id.). The motion was granted and the case was transferred to the law docket on January 21, 2016 (Id. at 2). Additionally, a copy of corroborating medical records was served on defendants January 14, 2016 (Id. at 2, 5). As a result, Perrin argues defendants knew or should have known the amount in controversy would exceed the $75, 000.00 jurisdictional requirement once she testified in the December 9th arbitration proceeding (Id. at 2).

         Perrin affirms providing defendants certified notice of increased damage claims by presenting the following:

• January, 14, 2016: medical records (Id. at 10).
• March 9, 2016: medical records (Id. at 11).
• December 5, 2016: medical records (Id. at 12).
• February 15, 2017: medical records from two different doctors (Id. at 13).

         In response, defendants assert, inter alia, their Notice of Removal was timely filed as stipulated under section 1446(b)(3), and furthermore purport Perrin deliberately concealed facts within the first year of litigation which would have established her claim would exceed $75, 000.00 (Doc. 8). As a result, defendants claim violation of Rule 213(i) of the Illinois Supreme Court Rules because Perrin failed to amend her complaint upon determining the claim would be in excess of $75, 000.00 (Id. at 4).

         II. LEGAL STANDARD

         A. 28 U.S.C. § 1441

         Defendants may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction [.]” 28 U.S.C. § 1441(a). The removing party bears the burden of demonstrating removal is proper, and removal statues are strictly construed, resolving all doubts in plaintiffs choice of state court forum. See Morris v. Nuzzo,718 ...


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