Evans v. Yum Brands, Inc.

• Decision Date: 14 July 2004
• Docket Number: No. CIV. 04-103-JD.,CIV. 04-103-JD.
• Citation: 326 F.Supp.2d 214
• Parties: Wendy EVANS, et al., v. YUM BRANDS, INC., et al.
• Court: U.S. District Court — District of New Hampshire

326 F.Supp.2d 214

Wendy EVANS, et al., v. YUM BRANDS, INC., et al.

No. CIV. 04-103-JD.

United States District Court, D. New Hampshire.

July 14, 2004.

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Peter E. Hutchins, Wiggin & Nourie, Manchester, NH, for Plaintiff.

Andrew W. Serell, Rath Young & Pignatelli, P.A., Concord, NH, Bruce G. Tucker, Tucker Law Office, Middletown, RI, for Defendants.

ORDER

DICLERICO, District Judge.

Wendy Evans, the named plaintiff in this proposed class action lawsuit, has moved to remand the case to state court on the ground that the defendants have failed to allege in their notice of removal that the amount in controversy exceeds $75,000. In response, the defendants have attempted to show that Evans's damages would meet the requisite sum if she prevails and have also moved for leave to amend their notice of removal to correct the asserted defect noted by Evans. Evans argues that leave cannot be granted. The defendants have also asked the court to require Evans to post a $25,000 bond as security for their costs in litigating the action. Evans opposes any bond requirement. Finally, the parties are at odds over whether discovery should proceed immediately or await the court's decision on the summary judgment motion which the defendants intend to file.

Background

This action arises out of media reports in late February 2004 that an employee of the Taco Bell restaurant in Derry had been diagnosed with Hepatitis A. New Hampshire public health officials responded by urging those who had patronized the restaurant between February 7, 2004, and February 21, 2004, to receive immune globulin inoculations. Because Evans, her husband, and their three minor children allegedly had eaten food prepared at the Derry Taco Bell on both of those days, they received the inoculations at a free clinic on February 29, 2004. Evans claims to have learned that the inoculations "would potentially be effective" against her family's second possible exposure to Hepatitis A at the restaurant, on February 21, but not against their first possible exposure, on February 7, because the inoculation works against only those exposures occurring within the preceding fourteen-day period, if at all.

Evans filed a declaration and petition for class action¹ in Rockingham Superior Court on March 11, 2004, against Yum Brands, Inc., Taco Bell Corporation, Taco Bell of America, TACALA North, Inc., and John Doe defendants comprising "any other persons or entities related to, employed by, or working for the named defendants who may be liable...."² Evans alleges that she resides in Derry while Yum, Taco Bell Corporation, and Tacala are all incorporated in states other than New Hampshire. The complaint does not specifically state any defendant's principal place of business but lists their addresses, each of which is located outside of New Hampshire.

Evans alleges a number of different harms which have befallen her individually as a result of the defendants' actions. She claims to have suffered "nausea and persistent bouts of diarrhea ... for a period of three to four days" after consuming the food purchased at the Derry Taco Bell on February 7. Evans also alleges that the inoculation she received "was physically painful" and that "[s]ince learning of [their] family's possible exposure to Hepatitis A and receiving the inoculation," she and her husband have suffered from "persistent nausea and headaches," while she has experienced an additional "darkening of her urine." Her children have also complained of headaches and nausea and as of March 6, 2004, had developed a rash for which Evans sought to have them treated but "learned that she would need to wait at least a week before blood testing should be performed to ascertain whether [they] had contracted Hepatitis A."

Evans therefore "claims damages for physical pain, physical symptoms, fear and emotional distress" arising from the "fear [and] emotional trauma associated with the potential of contracting the disease" which she and her children were experiencing at the time she filed the complaint. She states that Hepatitis A can produce a number of unpleasant symptoms for a period of two to six months, including fatigue, fever, muscle soreness, headache, abdominal pain, nausea, loss of weight and appetite, and yellowing of the skin and the whites of the eyes. The disease can also cause permanent liver damage. Evans also "reserves the right" to seek enhanced compensatory damages and asserts a claim under the New Hampshire Consumer Protection Act. The complaint demands judgment "within the minimum and maximum jurisdictional limits of this Court, together with ... where appropriate under New Hampshire law, multiple damages and/or attorneys [sic] fees" but does not otherwise quantify Evans's claimed damages.³

The complaint seeks to certify a class comprised of everyone who "patronized and consumed food at" the Derry Taco Bell between February 7, 2004, and February 21, 2004, "who were potentially and/or actually exposed to" Hepatitis A. The defendants have submitted a newspaper article quoting Evans's counsel as saying that at least fifty plaintiffs had joined her potential class action as of March 17, 2004.

On March 19, 2004, the defendants filed a notice of removal in this court. The notice stated that "[t]he grounds for removal are diversity of citizenship," explaining that each of the defendants was incorporated and had its principal place of business outside of New Hampshire and citing 28 U.S.C. § 1332(c).⁴ The notice asserted that removal was "therefore, proper under Section 1441 of Title 28 of the United States Code because this is a civil action in state court over which the federal district courts would have had original jurisdiction had the action been commenced in federal court." The notice makes no assertion as to the amount in controversy.

On March 30, 2004, Evans responded by filing a motion to remand her case to Rockingham County Superior Court on the sole ground that one of the putative John Doe defendants, the manager of the Derry Taco Bell, resided in New Hampshire and that complete diversity between the adverse parties therefore did not exist. After the defendants objected because the citizenship of those sued under fictitious names is disregarded for purposes of removal, see 28 U.S.C. § 1441(a), Evans filed a motion seeking to add the manager as a named defendant.⁵ Evans also objected to the defendants' motion for admission of an attorney pro hac vice on the theory that he might have been involved in the decision to remove the case, which Evans characterized as "improper and in bad faith" because the defendants knew that at least one of the unnamed John Doe defendants resided in New Hampshire. These matters were referred to the magistrate together with another motion Evans had filed seeking relief from her obligation to submit a discovery plan pending a decision on the remand issue. The magistrate denied Evans's motions, noting that the motion for remand "demonstrate[d] a profound ignorance of basic remand law" and criticizing the motion practice of her counsel. The magistrate also granted the motion of the defendants' counsel to appear pro hac vice, calling Evans's objection "frivolous."

In preparation for the preliminary pretrial conference, the parties filed a joint discovery plan on May 7, 2004. The defendants have proposed that initial disclosures and other discovery in the case await a decision on the summary judgment motion which they intend to file. The plaintiffs, however, seek to proceed with discovery so that the issue of class certification can be briefed and heard by the end of September 2004. At the preliminary pretrial conference, counsel for the defendants indicated that he did not object to Evans's taking the deposition of anyone submitting an affidavit in support of the motion for summary judgment but wished to forestall class certification discovery, arguing that it would require, inter alia, obtaining the medical records of everyone potentially exposed to Hepatitis A at the Derry Taco Bell. Evans's attorney stated that he would take only limited discovery from the defendants on the issue of class certification. Following the conference, the court notified the parties that its decision on how discovery is to proceed would await the resolution of Evans's second motion for remand, filed May 17, 2004.

Discussion

I. The Motions for Remand and to Amend the Notice of Removal

As the parties seeking to invoke federal diversity jurisdiction, the defendants bear the burden of showing that this case satisfies the amount-in-controversy requirement. Stewart v. Tupperware Corp., 356 F.3d 335, 338 (1st Cir.2004); Spielman v. Genzyme Corp., 251 F.3d 1, 4 (1st Cir.2001). The complaint itself normally suffices to make this showing where the plaintiff has demanded at least the jurisdictional minimum. Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 (7th Cir.1993); Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992); 16 James W. Moore et al., Moore's Federal Practice § 107.14[2] [g][v], at 107-80 (3d ed.1997). But where, as here, the complaint does not put any number on the plaintiff's claimed damages, this court has required the defendant to show by a preponderance of the evidence that the amount in controversy exceeds the figure necessary for federal diversity jurisdiction. See, e.g., Tremblay v. Philip Morris, Inc., 231 F.Supp.2d 411, 414 n. 2 (D.N.H.2002); Kivikovski v. Smart Prof. Photocopying Corp., 2001 WL 274763, at *1, 2001 DNH 43, 2001 U.S. Dist. LEXIS 2017, at *3 (D.N.H. Feb. 20, 2001); Kelleher v. Marvin Lumber & Cedar Co., 2000 WL 1507433, at *2, 2000 DNH 132, 2000 U.S. Dist. LEXIS 8560, at *4 (D.N.H. June 13, 2000).

Evans asserts that the defendants' failure to claim in the notice of removal that the amount in controversy exceeds $75,000 means that they cannot meet their burden. The court disagrees. Although the First Circuit has yet...