Summary
In Napier, the plaintiff alleged that the defendant had been publicly wrongly stopped for shoplifting and, in the attempt to arrest her, the defendant "forcefully grabbed her by the upper arm and then held her breast and struggled with her enough for her blouse and jacket to be removed in the process.
Summary of this case from Ashley v. Bank of America, N.A.Opinion
NO. 4:04-cv-00010-SEB-WGH
April 26, 2004
ENTRY DENYING MOTION TO REMAND
This matter comes before the court on Plaintiffs' objection to Defendant's removal of their tort claims from Jefferson County Superior Court. For the reasons given below, we DENY Plaintiffs' Motion to Dismiss and/or Remand.
Background
Plaintiffs Tony and Christie Napier (the "Napiers") seek damages from Defendant Wal-Mart Stores ("Wal-Mart") on claims of false arrest, false imprisonment, defamation, assault and battery. Wal-Mart timely removed the action to federal court on January 9, 2004, 28 U.S.C. § 1446, on the basis of diversity of citizenship and an amount in controversy in excess of $75,000.00. 28 U.S.C. § 1332. The stated basis for removal satisfies the requirements of 28 U.S.C. § 1441 (a), according to which claims brought in state court are generally removable if the district court would have "original jurisdiction" over the matter, and one basis for original jurisdiction in civil matters is diversity of citizenship coupled with meeting the statutory amount in controversy.
The Napiers argue that removal was improper because they do not seek a damages award in excess of $75,000.00. The complaint does not allege a specified amount, however, on February 9, 2004, a month after removal to this court, the Napiers filed an affidavit in which they stipulated to damages less than $75,000.00. Pl.'s Objection, Ex. A. They presently seek dismissal on the grounds that we no longer have original jurisdiction to hear this matter because the amount in controversy requirement is no longer fulfilled.
Legal Discussion
In a jurisdictional challenge where the amount in controversy is at issue, the party seeking the federal forum — Wal-Mart in this case — bears the "burden of coming forward with `competent proof to establish at least a `reasonable probability' that the amount in controversy requirement is satisfied." Kenray, Inc. v. Judson Atkinson Candies, Inc., 2002 WL 2012439, *2 (S.D. Ind. 2002) (Barker, J.); Workman v. United Parcel Serv., 234 F.3d 998, 999 (7th Cir. 2000).
Defendant asserts that judging from the nature of the alleged acts and the resulting injuries, it was evident from the face of the complaint that Christie Napier's tort claims were not of the "garden variety." That is, she alleged "bruising of her body, mental anguish, trauma, loss of reputation in the community, humiliation and loss of self respect" arising from an incident in which a Wal-Mart security guard publicly stopped her for shoplifting a rug shampooer and in attempting to arrest her, forcefully grabbed her by the upper arm and then held her breast and struggled with her enough for her blouse and jacket to be removed in the process. She seeks both compensatory and punitive damages for these actions. Def.'s Resp. at 1. With regard to the punitive damages alone, the defendant points out they could potentially reach $50,000 because the statute contemplates that figure as the maximum. See I.C. § 34-51-3-4 (maximum punitive damages may not exceed three times the amount of compensatory damages awarded in the action or $50,000). We are satisfied that the defendant has carried its burden of establishing the reasonable probability that the amount in controversy requirement at the time of filing was satisfied even though no amount was specified.
However, it is settled in this circuit that a plaintiff with a modest claim who does not want to be forced to litigate in federal court can avoid that fate simply by stipulating that s/he is not seeking and will neither demand nor accept any recovery in excess of $75,000 exclusive of costs and interest. In re Shell Oil Co., 970 F.2d 355 (7th Cir. 1992) (per curiam). The plaintiffs claim their own such stipulation justifies dismissal of their action in this court. We find it does not because it is equally settled in this circuit that "the stipulation must be made at the time the suit is filed since jurisdiction is determined as of then and not later." Workman v. United Parcel Service, Inc., 234 F.3d at 1000; see also, In re Shell Oil Co., 970 F.2d at 357 (postremoval affidavit or stipulation by plaintiff limiting recovery to less than the jurisdictional amount in controversy was ineffective); Chase v. Shop `N Save Warehouse Foods, Inc., 110 F.3d 424, 430 (7th Cir. 1997) (postremoval stipulation by personal injury plaintiff did not defeat diversity jurisdiction).
The plaintiffs filed the stipulation concerning damages on February 9, 2004, a full month after the defendant's timely and proper removal to this court. Therefore, the postremoval affidavit and stipulation limiting recovery to less than $75,000.00 is ineffective to defeat our jurisdiction.
Conclusion
For the above reasons, we DENY Plaintiffs' Motion to Dismiss and/or Remand.
It is so ORDERED.