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Powell v. Wal-Mart Stores, Inc.

United States District Court, E.D. Kentucky, Northern Division, Ashland

April 30, 2015

ALYSAN J. POWELL, Plaintiff,
v.
WAL-MART STORES, INC., WAL-MART STORES EAST, LP, a/k/a WAL-MART STORES EAST, LP, WAL-MART STORE NO. 1426 and MELODY MOUNTAIN ASSOCIATES, LTD., Defendants.

MEMORANDUM OPINION AND ORDER

HENRY R. WILHOIT, Jr., District Judge.

This matter is before the Court upon Plaintiffs Motion to Remand [Docket No.. 6]. The motion has been fully briefed by the parties [Docket Nos. 6 and 13]. For the reasons set forth herein, the Court finds remand is not warranted.

I. FACTUAL AND PROCEDURAL BACKGROUND

This is a premises liability case. Plaintiff claims she slipped and fell on cherries on the Ashland Wal-Mart store floor on August 13, 2013. She filed a lawsuit in Boyd Circuit Court against Defendants, alleging negligence and seeking damages for her medical expenses, lost wages, pain and suffering, and impaired earning capacity. [Docket No. 6-1]. In her Complaint, Plaintiff states that she is resident of Kentucky and that Defendant Wal-Mart Stores, Inc. is an Arkansas corporation, and the Wal-Mart Stores East, LP is a "foreign corporation." Id. at ¶¶ 2 and 4 The Complaint is devoid of any monetary amount. The only allegation in this regard is that the amount in controversy is sufficient to invoke the jurisdiction of the Boyd Circuit Comi. Id. at ¶ 1O.

Defendants were properly served, filed Answers to the Complaint and served written discovery upon Plaintiff. Included in the discovery was the following Request for Admission: "Please admit that you will not seek damages in excess of $75, 000, exclusive of interest and costs, at the trial of this matter.

On September 26, 2014, Plaintiff respond to the Request for Admission:

The damages to be awarded to Ms. Powell as a result of the issues set forth in her Complaint will be presented to a jury and the jury will determine the amount of damages based upon the evidence presented at the trial of this matter. Ms. Powell's medical treatment as a result of the matters set forth in her Complaint is continuing, and discovery has just started in this case at this time. As such, Plaintiff must deny this Request for Admission, indicating that the appropriate amount of the award will be presented to the jury for determination based upon the facts as developed through discovery in this matter.
All matters not expressly admitted are hereby denied.

[Docket No. 6-5](emphasis added).

Defendants received Plaintiff's responses to discovery on or about September 29, 2016. On October 23, 2014, Defendants filed a Notice of Removal, alleging jurisdiction upon the basis of diversity and pursuant to 28 U.S.C. § 1332. [Docket No. 1].

Plaintiff seeks remand to Boyd Circuit Court. She argues, first, that Defendants' removal was untimely and, therefore, improper. She also argues that Defendants failed to provide sufficient evidence that the amount in controversy exceeds $75, 000.

II. ANALYSIS

Actions filed in state court are properly removed to federal court when the case is one over which the court would have originally had jurisdiction. 28 U.S.C. § 1441. A state court case between citizens of different sates and where the amount in controversy exceeds $75, 000 is ...


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