Fagan v. Wal-Mart Stores, Inc.
| Decision Date | 29 June 2021 |
| Docket Number | Civil Action 21-10363 (KM) (MAH) |
| Parties | SUZETTE FAGAN, Plaintiff, v. WAL-MART STORES, INC., WAL-MART STORES EAST, LP, WALMART, INC., CENTENNIAL SQUARE LLC, JOHN/JANE DOE 1-10 and/or ABC CORP. 1-10 fictitious individuals/entities Defendants. |
| Court | U.S. District Court — District of New Jersey |
REPORT AND RECOMMENDATION
This matter comes before the Court by way of Plaintiff Suzette Fagan's Motion to Remand to the Superior Court of New Jersey, Law Division, Middlesex County pursuant to 28 U.S.C § 1447. See Mot. to Remand, May 13, 2021, D.E. 4. The Undersigned has considered the matter without oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth herein, the Undersigned respectfully recommends the District Court grant Plaintiff's Motion to Remand, and remand this matter to the Superior Court of New Jersey, Law Division, Middlesex County.
This civil action arises from a slip-and-fall at Walmart in Piscataway, New Jersey (“the Property”). See Notice of Removal, Apr. 28, 2021, D.E. 1 ¶ 18. Plaintiff Suzette Fagan seeks money damages for injuries sustained on July 3, 2018, when she fell on Defendants' premises due to their alleged negligence and carelessness. See Id. Plaintiff commenced this action on April 28, 2020, in the Superior Court of New Jersey, Law Division, Middlesex County. Id., Ex. A, D.E. 1-1, at 2-4. By way of an Amended Complaint filed on May 11, 2020 in the Superior Court of New Jersey, Law Division, Plaintiff brings negligence claims against Wal-Mart Stores East, LP (“Walmart”), the tenant of the Property; Wal-Mart Stores, Inc.; Walmart, Inc.; Centennial Square, LLC (“Centennial Square”), the landlord of the property; John Does 1-10; and ABC Corp. 1-10.[1]See id., Ex. A, D.E. 1-1, at 5-7. Walmart filed a Substitution of Attorney on February 5, 2021, taking over Centennial Square's defense. Notice of Removal ¶ 13. Thus, Walmart and Centennial Square are now represented by the same attorneys. Id.
Plaintiff alleges, among other things, that Defendants were negligent insofar as they “created and/or permitted a hazardous, dangerous, and defective condition to exist on the premises” and that the condition “existed for so long” that Defendants “knew or should have known of the said condition.” Id., Ex. A, D.E. 1-1, at 5 (“Count One”). Plaintiff also maintains that Defendants “were responsible for maintenance” and negligently “creat[ed] a dangerous condition at the location of the subject fall.” Id., Ex. A, at D.E. 1-1, at 6 (“Count Two”).
On April 28, 2021, Walmart removed the case to this Court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332.[2] See Notice of Removal ¶¶ 9-11, 17-28. Plaintiff is a New Jersey resident. Id. ¶ 17. Walmart is a Delaware corporation with its principal place of business in Arkansas. Id. ¶ 9. Centennial Square is a New Jersey corporation with its principal place of business in New Jersey. Id. ¶ 10.
Despite a lack of complete diversity among the parties, Walmart contends that subject matter jurisdiction exists because Plaintiff fraudulently joined Centennial Square as a defendant to prevent removal. Id. ¶¶ 10-16. As set forth in the Notice of Removal, Wal-Mart Real Estate Business Trust leased the Property from Centennial Square, and Walmart operated the Property pursuant to a separate sublease. See Id. ¶ 10. According to Walmart, the terms of the lease stipulated that “maintenance of the store's interior was handled by the Lessee, Wal-Mart.” Id. ¶ 10; see also id., Ex. C, D.E. 1-1, at 21-23. Further, Defendants assert that Centennial Square was joined in bad faith, pointing to a signed stipulation of dismissal as to Centennial Square between Plaintiff and Walmart. Br. in Supp. of Defs.' Opp. to Pl.'s Mot. to Remand, June 7, 2021, D.E. 7, at 18. The stipulation provided that jurisdiction and venue would remain in Middlesex County Superior Court. See Notice of Removal, Ex. H, D.E. 1-1. However, it dismissed Centennial Square “without prejudice” and specifically noted that Defendants waived their “statute of limitations defense if reinstatement [is] necessary.” Id. (emphasis added). Nevertheless, Defendants assert that Centennial Square cannot be held liable for Plaintiff's injuries as a matter of law, and has been fraudulently joined. Id. ¶ 11.
Plaintiff now moves to remand this action to state court for lack of subject matter jurisdiction. See Pl.'s Br. in Supp. of Mot. to Remand, D.E. 4-1, at 1. First, Plaintiff alleges that Defendants failed to file their Notice of Removal within the appropriate timeframe. Id. at 3-4. Walmart was served with a copy of Plaintiff's summons and Amended Complaint on June 9, 2020. Walmart filed an answer on December 20, 2020. Id. at 4. Defendants did not file their notice of removal until April 28, 2021, more than thirty days later. Id. However, Defendants rely on an email sent on May 6, 2020, in which Defendants requested that Plaintiff stipulate whether her damages are less than $75, 000. See Notice of Removal, Ex. I, D.E. 1-1, at 37. Despite Plaintiff's refusal to cap damages at $75, 000, Defendants contend that removal was timely because they did not know that the amount in controversy exceeded $75, 000 until April 28, 2021, when they first learned that Plaintiff had surgery on August 10, 2020. See Id. ¶ 21; see also id., Ex. J, D.E. 1-1, at 39; Pl.'s Br., D.E. 4-1, at 5.
Second, Plaintiff contends that Defendants cannot demonstrate diversity of citizenship, given that Centennial Square is a New Jersey corporation with its principal place of business in New Jersey. See Pl.'s Br., D.E. 4-1, at 7-8. Plaintiff submits that Centennial Square is a proper party to this lawsuit because Centennial Square was the commercial owner of the Property and “had a duty to maintain the premises . . . in safe condition.” Pl.'s Br., D.E. 4-1, at 10.
A party may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). “Where a complaint does not raise a question of federal law, a district court may properly exercise subject matter jurisdiction only if the amount in controversy exceeds the value of $75, 000 and diversity exists among the adverse parties.” In re Benicar (Olmesartan) Prods. Liab. Litig., 198 F.Supp.3d 385, 386 (D.N.J. 2016) (citing 28 U.S.C. § 1332(a)). To invoke diversity jurisdiction, “no plaintiff can be a citizen of the same state as any of the defendants at the time the complaint was filed and at the time of removal.” Id. (citing Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 346 (3d Cir. 2013); see also Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)).
“Removal statutes ‘are to be strictly construed against removal and all doubts should be resolved in favor of remand.'” Peters v. Stop & Shop, No. 13-6085, 2013 WL 5781199, at *2 (D.N.J. Oct. 25, 2013) (citing Steel Valley Auth. v. Union Switch and Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)). Upon the removal of an action, a plaintiff may move to remand the matter back to state court based on “(1) lack of district court subject matter jurisdiction or (2) a defect in the removal process.” Scott v. Estes Express Lines, Inc., No. 17-0963, 2017 WL 4268039, at *1 (D.N.J. Sep. 26, 2017) (citing PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir. 1993).
“An action that has been removed can be remanded to state court, pursuant to 28 U.S.C. § 1447(c), if the removal procedure was defective.” Peters, 2013 WL 5781199, at *2. Any failure to file a notice of removal “within the statutory timeframe is sufficient grounds to remand an action to state court.” Id. Under 28 U.S.C. § 1446(b), “if an initial pleading is removable, a defendant has thirty days after receipt of the initial pleading to file its notice of removal.” Id. However, if the initial pleading is not removable, “a defendant has thirty days from receipt of an amended pleading, motion, order or “other paper” from which the defendant can first determine that the matter is removable” to file a notice of removal. Id.
Id. Using this approach, the relevant test is what the pleadings said regarding the amount in controversy, not what the defendants purportedly knew. Id.
Under the subjective-inquiry approach, the thirty-day period for removal begins once a defendant can “reasonably and intelligently conclude from the pleadings that the amount in controversy exceeds the jurisdictional minimum.” Carroll v. United Air Lines, Inc., 7 F.Supp.2d. 516, 521 (D.N.J. 1998). Therefore, the initial pleading does not need to state the amount in controversy for the thirty-day period to start running. Peters, 2013 WL 5781199, at *2. “In the context of a personal injury suit between diverse parties . . . ‘courts have held that allegations of severe injuries along with pain and suffering will alert the defendant that an amount in excess of the jurisdictional amount is at issue' and trigger the running of the thirty-day removal period.” Carroll, 7 F.Supp.2d at 521-22 (quoting Turner v. Wilson Foods Corp., 711 F.Supp. 624, 626 (N.D.Ga. 1989)).
Although the Third Circuit has...
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