Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


September 29, 2000


The opinion of the court was delivered by: Cooper, District Judge.


This matter comes before the Court on the motion of plaintiffs Phyllis Penn and Kenneth Penn ("plaintiffs") to remand the above-captioned case to the Superior Court of New Jersey, Law Division, Ocean County ("Superior Court of New Jersey"). The defendant Wal-Mart Stores, Inc. ("Wal-Mart") earlier filed a Notice to remove this case from the Superior Court of New Jersey to this Court. Plaintiffs also seek the award of attorneys' fees and costs arising from the removal as well as permission to file a certification detailing the time spent as a result of the removal. For the reasons expressed below, plaintiffs' motion is granted in part and denied in part. The Court grants the motion as to the request to remand this case to the Superior Court of New Jersey but denies the request for attorneys' fees and costs.


Plaintiffs, who are New Jersey residents, filed the Complaint in this matter in the Superior Court of New Jersey on or about February 14, 2000. (Compl.) The Complaint alleges that Phyllis Penn, a patron of Wal-Mart's store in Manahawkin, New Jersey, fell while walking through Wal-Mart's parking facility on February 16, 1998. (Id. ¶¶ 1-3.) The Complaint further alleges that an unsafe condition within Wal-Mart's control caused this fall and that Wal-Mart breached its duty of care to Phyllis Penn by failing to maintain its premises properly. (Id. ¶¶ 3, 5.) As a result of this fall, Phyllis Penn allegedly suffered "severe injuries which required medical treatment." (Id. ¶ 4.) In particular, plaintiffs claim that "[Phyllis Penn] suffered a tear in her knee ligaments that hold the joint together, as well as severe sprains and other injuries." (Id. ¶ 6.) Phyllis Penn allegedly continues to suffer pain as a result of these injuries. (Id. ¶ 4.) The Complaint also asserts a loss of consortium claim on behalf of Phyllis Penn's husband, Kenneth Penn. (Id. ¶ 7.)

In the Complaint's ad damnum clause, "[p]laintiff prays for judgment against the [d]efendant for damages, Court costs, attorneys fees, and any other costs deemed just and proper by the Court." (Compl.) Though the Complaint does not specify a particular quantity of damages, the Civil Case Information Statement has a mark accompanying the item stating that present medical expenses are more than $2500. In addition, this Statement has a box for punitive damages that has not been marked.

Wal-Mart filed a Notice of Removal with this Court on May 25, 2000, having been served with the Complaint on or about May 12, 2000. (Not. of Removal ¶ 2.) Wal-Mart's basis for removal was diversity of citizenship.*fn1 The Notice asserts that diversity of citizenship exists between the plaintiffs, who are citizens of New Jersey, and Wal-Mart, a corporation organized under the laws of Delaware with its principal place of business in Arkansas. (Id. ¶ 5.) Furthermore, the Notice states that it was filed within thirty days of receipt by Wal-Mart of a copy of the pleading setting forth the claim upon which this case is based. (Id. ¶ 6.)

The Notice of Removal alleges that "the sum in controversy, exclusive of interest and costs, is in excess of $75,000." (Id. ¶ 5.) Plaintiffs' allegations of "severe" injuries and "a tear in her knee ligaments that hold the joint together, as well as severe sprains and other injuries" serve as the basis for this assertion of jurisdiction. (Id.)

Plaintiffs moved to remand this case to the Superior Court of New Jersey on July 14, 2000 on the grounds that the amount in controversy requirement for diversity jurisdiction has not been satisfied because Wal-Mart has not shown that the value of plaintiffs' claims exceeds $75,000. Kristen M. Wilson, a law clerk at the law firm representing the plaintiffs, states that: (1) she has reviewed Phyllis Penn's medical bills and they are "substantially lower" than the $75,000 jurisdictional requirement, totaling $2,696.40, (Certif. of Kristen M. Wilson filed 7-14-00 ¶¶ 2, 5); (2) these medical bills, while subject to possible increases in the future, will remain substantially below the $75,000 requirement, (id. ¶ 5); (3) on June 2, 2000, she spoke with Tammy from Prudential Health Insurance who agreed to send photocopies of Phyllis Penn's medical bills from 1998 to "the present,"*fn2 (id. ¶ 4); (4) on June 2, 2000, she spoke with Phyllis Penn who informed her that her doctors stated they could do nothing further unless she decided to undergo knee surgery, (id. ¶ 3); and (5) Phyllis Penn told her that as of June 2, 2000 she had not chosen to undergo this surgery, (id.). Robert G. Shinn, plaintiffs' attorney, further certifies that, "[w]hile the [p]laintiff hopes to receive a substantial sum for her pain and injury, at the present time, there is no indication that the damages to the [p]laintiff, if in fact any are awarded, will exceed the jurisdictional sum." (Certif. of Robert G. Shinn, Esq. dated 6-7-00 ¶ 5.)

Plaintiffs contest Wal-Mart's "baseless allegation" that a "severe" injury is sufficient to satisfy the amount in controversy requirement. (Id. ¶¶ 6-7.) They argue that Wal-Mart must show by a preponderance of the evidence that plaintiffs' claims exceed $75,000. (Id.) According to the plaintiffs, WalMart has not met this burden.

Wal-Mart responds to plaintiffs' arguments by relying on: (1) Phyllis Penn's statement to Kristen M. Wilson that, according to her doctors, nothing further could be done for her unless she chose to have knee surgery and that she did not elect to undergo such surgery, (Aff. of Richard D. Millet, Esq. dated 6-23-00 ¶ 3); (2) the allegation that "in this day and age, it is not unusual, nor is it unexpected, that a jury will return a verdict in excess of $75,000 for an injury to the knee where surgery is recommended by the treating physician," (id. ¶ 4); (3) the absence of any medical reports or records accompanying the plaintiffs' motion to remand, (id.); (4) the possibility of an increase in the total amount of Phyllis Penn's medical bills, (id. ¶ 2); and (5) the language in the Complaint stating that Phyllis Penn suffered severe injuries, the amount of medical bills, and the surgery statement demonstrate that the value of plaintiffs' claims exceeds $75,000, (id. ¶ 5).*fn3


A defendant may remove a claim from a state court to a federal district court pursuant to 28 U.S.C. § 1441*fn4 and 28 U.S.C. § 1446.*fn5 To qualify for removal, the cause of action must be a claim "of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). One basis of original jurisdiction is diversity jurisdiction or jurisdiction over civil actions between "citizens of different States" where "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). Whenever this subject-matter jurisdiction is absent, the district court must remand the case to the state court when the plaintiff moves to remand or sua sponte. 28 U.S.C. § 1447(c).*fn6 Furthermore, "[a]n order remanding the case may require payment of just costs, and any actual expenses, including attorney fees, incurred as a result of removal." Id.

The defendant bears the burden of demonstrating the appropriateness of removal. As the party invoking federal jurisdiction, the defendant must prove the existence of the prerequisites of this jurisdiction. Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). If diversity of citizenship constitutes the basis of removal jurisdiction, the defendant must establish that the amount in controversy exceeds $75,000. Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 222 (3d Cir. 1999) ("The burden of establishing the amount in controversy in removal cases rests on the defendant." (citing Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985))).

Where the complaint is "open-ended" and does not allege a specified amount, the district court should perform its "own independent appraisal of the value of the claim." Angus v. Shiley Inc., 989 F.2d 142, 145-46 (3d Cir. 1993) (citing Corwin Jeep Sales & Serv., Inc. v. American Motors Sales Corp., 670 F. Supp. 591, 596 (M.D.Pa. 1986)). The court should conduct "[a] reasonable reading of the value of the rights being litigated" and not focus on "the low end of an open-ended claim." Id. at 146 (citations omitted). Generally, the complaint determines the amount in controversy. Angus, 989 F.2d at 145 ("The general federal rule is to decide the amount in controversy from the complaint itself." (citing Horton v. Liberty Mutual Ins. Co., 367 U.S. 348, 353, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961))). The court, however, may also consider other evidence such as the defendant's notice of removal. See, e.g., Imperial Spirits, USA Inc. v. Trans Marine Int'l Corp., No. CIV.A. 98-5469(JWB), 1999 WL 172292, at *2 (D.N.J. Feb. 17, 1999) (citations omitted). ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.