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Lockhart v. Dolgencorp, LLC

United States District Court, S.D. West Virginia, Beckley Division

January 8, 2019




         The Court has reviewed the Plaintiff's Motion to Remand (Document 4), the Memorandum of Law in Support of Plaintiff's Motion to Remand (Document 5), the Defendant's Response to Plaintiffs Motion to Remand (Document 6), the Plaintiff's Reply in Support of Plaintiff's Motion to Remand (Document 7), the Plaintiff's Response in Opposition to Defendant Dolgencorp, LLC d/b/a Dollar General's Motion to Dismiss Plaintiff's Complaint (Document 1-12), as well as the Amended Complaint (Document 1-7) and Notice of Removal (Document 1). For the reasons stated herein, the Court finds that the motion should be granted.


         The Plaintiff, Kathy Lockhart, originally filed her complaint in the Circuit Court of Greenbrier County, West Virginia. The Plaintiff named Dolgencorp LLC, d/b/a Dollar General as the Defendant. The Defendant removed the case to this Court on September 14, 2018.

         The Plaintiff alleges that on or about October 27, 2016, she was shopping at a Dollar General Store in Lewisburg, West Virginia. The Plaintiff further alleges that the Defendant, “negligently maintained the premises by placing a wire basket at the end of an aisle which was unsafe and dangerous, which caused [the] Plaintiff to trip, fall, and seriously injure herself.” (Amended Compl. at ¶ 6). The Plaintiff's amended complaint sets forth claims for negligence and nuisance.

         The Plaintiff filed her motion to remand shortly after removal to this Court, asserting that the Defendant's removal was untimely. The Defendant has responded, and the motion is fully briefed and ripe for review.


         An action may be removed from state court to federal court if it is one over which the district court would have had original jurisdiction. 28 U.S.C. § 1441(a).[1] This Court has original jurisdiction of all civil actions between citizens of different states or between citizens of a state and citizens or subjects of a foreign state where the amount in controversy exceeds the sum or value of $75, 000, exclusive of interests and costs. 28 U.S.C. § 1332(a)(1)-(2). Generally, every defendant must be a citizen of a state different from every plaintiff for complete diversity to exist. Diversity of citizenship must be established at the time of removal. Higgins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1166 (4th Cir.1998).

         It is a long-settled principle that the party seeking to adjudicate a matter in federal court, through removal, carries the burden of alleging in its notice of removal and, if challenged, demonstrating the court's jurisdiction over the matter. Strawn et al. v. AT &T Mobility, LLC et al., 530 F.3d 293, 296 (4th Cir. 2008); Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994) (“The burden of establishing federal jurisdiction is placed upon the party seeking removal.”) (citation omitted). Accordingly, in this case, the removing defendant has the burden to show the existence of diversity jurisdiction by a preponderance of the evidence. See White v. Chase Bank USA, NA., Civil Action No. 2:08-1370, 2009 WL 2762060, at *1 (S.D. W.Va. Aug. 26, 2009) (Faber, J.) (citing McCoy v. Erie Insurance Co., 147 F.Supp.2d 481, 488 (S.D. W.Va. 2001)). In deciding whether to remand, because removal by its nature infringes upon state sovereignty, this Court must “resolve all doubts about the propriety of removal in favor of retained state jurisdiction.” Hartley v. CSX Transp., Inc., 187 F.3d 422, 425 (4th Cir. 1999).


         The Defendant asserted in its notice of removal that federal diversity jurisdiction exists because there is complete diversity of citizenship in this action, and the amount in controversy is greater than $75, 000. (Notice of Removal at ¶ 18.) The Plaintiff does not contest diversity of citizenship or the amount in controversy, but argues this case was improperly removed to this Court, because it was removed beyond the thirty-day window in which a case may be properly removed to federal court. (Pl.'s Mem. In Supp. at 4-6.) The Defendant responds and argues that it could not in good faith represent to this Court that the amount in controversy exceeded the jurisdictional amount until Dr. Stephen Cohen was deposed on August 28, 2018, making removal timely.[2] (Def's. Resp. in Opp. at 4.) Therefore, the question before the Court is whether the Defendant's notice of removal is timely.

         28 U.S.C § 1446 “provides two thirty-day windows during which a case may be removed- during the first thirty days after the defendant receives the initial pleading or during the first thirty days after the defendant receives a paper ‘from which it may first be ascertained that the case is one which is or has become removeable.'” Harris v. Bankers Life and Cas. Co., 435 F.3d 689, 692 (9th Cir. 2005) (quoting 28 U.S.C. § 1446 (b)(3)).

In determining whether the grounds for removal were ascertainable from a motion, order or other paper, a court must not inquire into the subjective knowledge of the defendant . . . Instead, the court must ‘rely on the face of the initial pleading and on the documents exchanged in the case by the parties . . . [and] requir[e] that those grounds be apparent within the four corners of the initial pleading or subsequent paper.

Tolley v. Monsanto Co., 591 F.Supp.2d 837, 845 (S.D. W.Va. 2008) (Goodwin) (internal citations omitted). “The ‘motion, order, or other paper' requirement is broad enough to include any information received by the defendant, ‘whether communicated in a formal or informal manner.'” ...

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