Casteel v. Sara Lee Corp.

• Decision Date: 07 June 1999
• Docket Number: No. Civ. 99-40117.,Civ. 99-40117.
• Citation: 51 F.Supp.2d 816
• Parties: Janice CASTEEL, as next friend of Jacquelyn Casteel, a minor, and Janice Casteel, individually, Patricia Hardaway, and Margaret Leja and Lawrence Leja, on behalf of all similarly situated plaintiffs, Plaintiffs, v. SARA LEE CORPORATION and Bil Mar Foods, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

51 F.Supp.2d 816

Janice CASTEEL, as next friend of Jacquelyn Casteel, a minor, and Janice Casteel, individually, Patricia Hardaway, and Margaret Leja and Lawrence Leja, on behalf of all similarly situated plaintiffs, Plaintiffs, v. SARA LEE CORPORATION and Bil Mar Foods, Inc., Defendants.

No. Civ. 99-40117.

United States District Court, E.D. Michigan, Southern Division.

June 7, 1999.

Harvey Chayet, Thurswell, Chayet, Southfield, MI, for plaintiffs.

Ronald J. Torbet, Dykema, Gossett, Detroit, MI, for defendants.

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO REMAND

GADOLA, District Judge.

The above-entitled case arises from the sale of various food products which allegedly contained the listeria bacterium. Plaintiffs have filed a class action complaint alleging that various persons consumed the contaminated foods resulting in "severe illness" from food poisoning and/or listeriosis. Presently before this Court is a motion to remand the instant case to Wayne County Circuit Court brought by plaintiffs Janice Casteel, as next friend of Jacquelyn Casteel, a minor, Janice Casteel, individually, Patricia Hardaway, Margaret Leja and Lawrence Leja, on behalf of all similarly situated plaintiffs. Plaintiffs' motion to remand was filed on April 7, 1999. Defendants Sara Lee Corporation and Bil Mar Foods, Inc. responded to the instant motion on April 16, 1999. Plaintiffs filed a supplemental brief in support of their motion to remand on May 6, 1999.¹

For the reasons set forth below, the Court will grant plaintiffs' motion to remand.²

I. Procedural History

On February 3, 1999, plaintiff Janice Casteel initiated the instant action with the filing of a complaint in Wayne County Circuit Court, State of Michigan (Case No. 99-903157). On February 9, 1999, plaintiff Casteel filed an amended complaint. On March 5, 1999, plaintiff Casteel, individually and as next fried to minor child Jacquelyn Casteel, along with plaintiffs Patricia Hardaway, Margaret Leja and Lawrence Leja, on behalf of all similarly situated plaintiffs filed a second amended complaint. See Exh A to defendants' notice of removal.

Plaintiffs' second amended complaint alleges that on or about October 31, 1998, plaintiff Janice Casteel purchased Sara Lee deli meat from a Kroger grocery store located in Wayne County, Michigan. See second amended complaint ¶ 5. The meat was allegedly contaminated and consumed by plaintiffs Janice and Jacqueline Casteel causing food poisoning and listeriosis. See id. ¶ 6-7.

The second amended complaint further alleges that on or about June 19, 1998, plaintiffs Margaret and Lawrence Leja purchased turkey smoked sausages and turkey smoked hotdogs from Meijers in Woodhaven, Wayne County, Michigan. See id. ¶ 9. Plaintiffs maintain that these food products were also Sara Lee products and were also contaminated. See id. ¶ 10. As a result of consuming these products, plaintiffs Margaret and Lawrence Leja also allegedly became violently ill. See id. ¶ 11. The second amended complaint also identifies plaintiff Patricia Hardaway as another individual who allegedly became violently ill after consuming Sara Lee meat products. See id. ¶¶ 12-14.

On March 23, 1999, defendants filed a notice of removal. Removal was premised upon this Court's diversity jurisdiction, all named plaintiffs being Michigan residents, defendant Sara Lee being a corporate resident of both Maryland and Illinois and defendant Bil Mar being a corporate resident of Delaware. See 28 U.S.C. § 1441; see also 28 U.S.C. § 1332. In the notice of removal, defendants further assert that "the amount in controversy exceeds $75,000. ..." Plaintiffs have filed the instant motion to remand contesting defendants' assertion that the jurisdictional amount has been satisfied as required under 28 U.S.C. § 1332(a).

II. Analysis

The sole issue under consideration is whether the jurisdictional amount of more than $75,000 has been satisfied in the case at bar. It is well-settled that removal pursuant to 28 U.S.C. § 1441 is allowed only where the federal district court would have had "original jurisdiction" if the case were filed in federal court. See 28 U.S.C. § 1441(a); see also Brown v. Francis, 75 F.3d 860, 864 (3d Cir.1996) (holding that "[t]his jurisdictional prerequisite to removal is an absolute, non-waivable requirement"). Since the instant case is premised on claims of negligence and does not involve the existence of any federal question, removal must be based upon this Court's diversity jurisdiction. See 28 U.S.C. § 1332(a). As mentioned above, Section 1332(a) provides that in diversity cases, "[t]he district courts shall have original jurisdiction ... where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs...." 28 U.S.C. § 1332(a).

Plaintiffs maintain that removal must fail and the case must be remanded because "the substance of this lawsuit is the class action count (Count 7 of the Second Amended Complaint)." See Plaintiffs' Memorandum of Law, p. 3. Plaintiffs assert that "although the food poisoning and/or listeriosis in some cases resulted in significant injuries ... the vast majority of these cases [were] confined to a limited number of months of illness." Id. p. 4. As a consequence, plaintiffs contend that "[u]nder the circumstances, the vast majority of the persons sought to be identified and certified in this class action complaint, will have claims that clearly do not satisfy the $75,000 jurisdiction minimum." Id.

In response, defendants argue that the jurisdictional amount has been met because the complaint filed previously in state court alleged that the class is comprised of persons who contracted "severe illness" and that "the claims of the representative parties are typical of the claims of the members of the Class." See Defendants' Brief in Opposition, p. 3 (quoting Second Amended Complaint ¶¶ 53 and 56). Additionally, defendants maintain that the question is not whether each plaintiff will eventually recover more than $75,000, but instead whether plaintiffs have alleged damages which satisfy the pleading requirements. See Green v. Clark Refining & Mktg., Inc., 972 F.Supp. 423, 425 (E.D.Mich.1997) (Duggan, J.); Kennard v. Harris Corp., 728 F.Supp. 453, 454 (E.D.Mich.1989) (Hackett, J.). Defendants also point out that under the Michigan Court Rules plaintiffs are prohibited from specifying an exact amount of damages in the pleadings, where the claims pleaded exceed the state circuit court jurisdictional amount of $25,000. See M.C.R. 2.111(B)(2).³

Plaintiffs, in their supplemental brief, stipulate that at least two of the named plaintiffs, Jacquelyn Casteel and Margaret Leja, do not meet the $75,000 requirement. See Plaintiffs' Supplemental Brief, p. 2. In addition, plaintiffs cite a treatise on infectious diseases in support of their contention that a person's reaction to listeriosis may be mild: "[w]hen illness does occur it may be mild and only a brief flulike syndrome, as seen in some pregnant women." See Mandell, Douglas and Bennett, Principles and Practice of Infectious Diseases (4th ed.), attached as Exh. 1 to plaintiffs' Supplemental Brief. The treatise further provides that "[t]he approximate duration of therapy ... remains unsettled. Two weeks has proven successful in a number of case reports... [but] 3-6 weeks may be more prudent...." Id. This supports plaintiffs' assertion that some claims may only involve lost wages for a short period of time.

Defendants rely heavily on two Eastern District of Michigan cases, Green v. Clark Refining & Mktg., Inc., supra, and Kennard v. Harris Corp., supra. For the reasons discussed below, however, both of these cases are readily distinguishable from the instant case. In Green, the district court applied the thirty-day time limitation contained within 28 U.S.C. § 1446(b) to find that the defendant's notice of removal in that case had not been timely filed. See 972 F.Supp. at 426. In remarking upon the necessity of satisfying the jurisdictional amount, the court recognized that

where the state court rule [i.e., M.C.R. 2.111(B)(2)] prohibits a plaintiff from seeking a specific amount in personal injury claims, the determination as to whether the claim is removable may not be an easy one. "This case highlights the predicament facing defense attorneys who must determine the proper timing for removal of cases from state to federal court when faced with pleadings containing indeterminate amounts...." [McCraw v. Lyons, 863 F.Supp. 430, 431 (W.D.Ky.1994)].

Green, 972 F.Supp. at 425. The Green court further quoted with approval the following commentary of the Western District of Kentucky in McCraw:

even where the amount of damages is not specified, if the defendant is able to ascertain from a fair reading of the complaint or other papers filed that the minimum jurisdictional amount exists, he cannot "sit idly by" while the statutory period runs.

Id. (quoting McCraw, 863 F.Supp. at 434).

In Kennard, plaintiff had initiated a product liability action against defendants in state court. 728 F.Supp. at 453-54. Defendants removed the case to federal court whereupon plaintiff moved to remand, arguing that the jurisdictional amount in controversy did not exist. Id. at 454. Before evaluating plaintiffs' motion to remand, the court reaffirmed some basic rules relating to removal under 28 U.S.C. § 1441. "A defendant may remove a suit to federal court notwithstanding the plaintiff's failure to state an amount in controversy that establishes federal jurisdiction." Id. (citing Mielke v. Allstate Insurance Co., 472 F.Supp. 851, 852-853 (E.D.Mich.1979)). "Where the plaintiff's pleadings are insufficient to determine the amount in controversy, the court may consider the allegations of the petition for removal." Id. (citing McCurtain County Production Corp. v. Cowett, 482 F.Supp. 809, 813 (E.D.Ok.1978). Finally, the federal court may also "`make an independent evaluation of...