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Gatlin v. Shoe Show, Inc.

United States District Court, W.D. Kentucky, Louisville Division

September 23, 2014

TAMMY GATLIN, Plaintiff,
v.
SHOE SHOW, INC., Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, Senior District Judge.

This matter is before the Court upon Plaintiff Tammy Gatlin's Motion for Reconsideration, (Docket #9) and Motion for Leave to enter the affidavit of Tammy Gatlin (Docket #10). Defendant Shoe Show, Inc. has responded. (Docket No. 11). Plaintiff has not replied. These matters now are ripe for adjudication. For the reasons that follow, Plaintiff's Motions will be DENIED.

BACKGROUND

Plaintiff Tammy Gatlin alleges she was assaulted by a co-worker while working for Defendant Shoe Show, Inc. (Docket #1). Gatlin claims Shoe Show was negligent in hiring and retaining Savannah Pool, the co-worker who allegedly assaulted Gatlin.

Gatlin filed suit in Jefferson County Circuit Court. Shoe Show removed this case to federal court on the basis of diversity jurisdiction. (Docket #1). Gatlin filed a motion to remand and argued the amount in controversy did not exceed $75, 000. (Docket #6). In support, Gatlin attached her affidavit which she purports limited her recovery to under $75, 000, thereby destroying diversity jurisdiction. This Court ruled that Gatlin's affidavit did not "unequivocally" limit her recovery and denied Gatlin's motion to remand. (Docket #7).

Shoe Show also filed a motion to dismiss Gatlin's negligent hiring and retention claim on the grounds that Kentucky does not allow an employee to bring this tort against her employer. (Docket #6). This Court granted Shoe Show's motion to dismiss. (Docket #7).

Gatlin has asked this Court to reconsider both rulings. (Docket #9). Gatlin has also requested leave to enter a second affidavit addressing the amount in controversy. (Docket #10).

STANDARD

A Rule 59(e) motion to alter or amend a judgment may be granted only if there was "(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.'" ACLU of Ky. v. McCreary County, 607 F.3d 439, 450 (6th Cir. 2010) (quoting Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005)).

"A motion under Rule 59(e) is not intended to be utilized to relitigate issues previously considered." Foreman v. United States, 2012 U.S. Dist. LEXIS 187012 *3 (W.D. Mich. 2012) (citing Equal Emp't Opportunity Comm'n v. Argent Indus., Inc., 746 F.Supp. 705, 706 (S.D. Ohio 1989)). "Neither should it be used as a vehicle for submitting evidence which in the exercise of reasonable diligence could have been submitted before." Id. (citing Weyerhaeuser Corp. v. Koppers Co., 771 F.Supp. 1406, 1419 (D. Md. 1991)).

"The grant or denial of a Rule 59(e) motion is within the informed discretion of the district court, reversible only for abuse." Huff v. Metro. Life Ins. Co., 675 F.2d 119, 122 (6th Cir. 1982).

DISCUSSION

I. Gatlin's second affidavit does not affect the amount-in-controversy requirement for diversity jurisdiction.

A plaintiff may negate federal jurisdiction by stipulating that she will not seek nor accept more than $75, 000. Egan v. Premier Scales & Sys., 237 F.Supp.2d 774, 778 (W.D. Ky. 2002). To be effective, the limitation must be "unequivocal" and the stipulation must be the "first time" the plaintiff "provides specific information about the amount in controversy." Id; Proctor v. Swifty Oil Co., 2012 U.S. Dist. LEXIS 141323 *9-10 (W.D. Ky. 2012) ("Where a plaintiff's postremoval stipulation states the amount in controversy for the first time, this district views such stipulations as a clarification of the amount in controversy rather than a reduction of such."). Any other "post-removal stipulation or affidavit" is considered a reduction in the amount in controversy and "does not require remand to the state court." (punctuation omitted) Shupe v. Asplundh Tree Expert Co., 566 Fed.Appx. 476 (6th Cir. 2014) (unpublished) (quoting Rogers v. ...


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