Riddle v. Lowe's Home Ctrs., Inc.

• Decision Date: 14 July 2011
• Docket Number: No. 2:11–cv–0044.,2:11–cv–0044.
• Citation: 802 F.Supp.2d 900
• Parties: Roger RIDDLE, Plaintiff, v. LOWE'S HOME CENTERS, INC., Defendant.
• Court: U.S. District Court — Middle District of Tennessee

802 F.Supp.2d 900

Roger RIDDLE, Plaintiff,

v.LOWE'S HOME CENTERS, INC., Defendant.

No. 2:11–cv–0044.

United States District Court, M.D. Tennessee.

July 14, 2011.

Adam S. Major, Christopher D. Markel, Markel & Major, Chattanooga, TN, for Plaintiff.

Richard E. Spicer, Spicer Rudstrom, PLLC, Nashville, TN, for Defendant.

MEMORANDUM

KEVIN H. SHARP, District Judge.

Defendant Lowe's Home Centers, Inc. (“Defendant” or “Lowes”) filed a Motion to Dismiss (Docket Entry No. 5), to which Plaintiff Roger Riddle (“Plaintiff”) filed a response (Docket Entry No. 7). Further, as directed by the Court's Order (Docket Entry No. 11), Plaintiff filed a supplemental brief on jurisdiction (Docket Entry No. 14), and Defendant filed a response (Docket Entry No. 15). For the reasons discussed herein, the Court retains jurisdiction of this cause of action, and Defendant's Motion to Dismiss will be granted.

FACTUAL AND PROCEDURAL HISTORY

On or about April 5, 2010, Plaintiff visited the Cookeville, Tennessee location of Lowes. He purchased numerous four by six pieces of plywood. ¹ Plaintiff did so by loading each from the store shelf onto a cart provided by Lowes and rolling the same to the checkout. After checking out, but before exiting the premises, Plaintiff approached an employee of Defendant who was stationed at the exit door with a walkie talkie and requested assistance loading the plywood onto his truck. Plaintiff was told that no such help was available, after asking two times.² Plaintiff then pulled his vehicle to the front of the store and began loading the plywood onto the bed of his truck. In the process, Plaintiff sustained severe personal injury.

Subsequently, Plaintiff returned to the store to complain of his injury, whereupon the store manager pointed out several persons whose exclusive job it was to load purchased items, such as that purchased by Plaintiff, onto vehicles.

Plaintiff initiated this action in the Circuit Court of Putnam County, Tennessee, on March 22, 2011 (Docket Entry No. 1 Ex. 1). On or about April 15, 2011, Defendant filed a Notice of Removal causing the action to be removed to this Court based on diversity jurisdiction under 28 U.S.C. § 1332 (Docket Entry No. 1).

ANALYSIS

Plaintiff brought this action against Defendant, alleging various state law claims, including negligence, negligent misrepresentation, intentional misrepresentation, and violation of the Tennessee Consumer Protection Act. Defendant filed a Motion to Dismiss for failure to state a claim on each count.

On June 1, 2011, the Court ordered supplemental briefing by the parties as to subject matter jurisdiction and any removal issues; supplementary briefs have been filed. The Court will address this issue first then proceed to the Motion to Dismiss.

I. Jurisdiction

In response to the pending Motion to Dismiss, Plaintiff indicated that he may challenge removal of the state court action to this Court based upon subject matter jurisdiction and/or that he may raise the issue of defective filing. (Docket Entry No. 8 at 2). Plaintiff further stated that he filed and served an Amended Complaint on Defendant adding a party defendant prior to the Notice of Removal filing. ( Id.). There are inconsistencies and confusion between the parties regarding the timing of service of process and/or lack thereof in conjunction with the Amended Complaint.

Specifically, Plaintiff claims before any responsive pleading had been filed to the original Complaint, he filed an Amended Complaint on March 25, 2011, adding “John Doe,” an unidentified employee of Lowes. (Docket Entry No. 14 at 2). On April 6, 2011, copies of the Amended Complaint and Summons were served upon Corporation Service Company, the registered agent for service of process for Lowes.³ ( Id.). In its Notice of Removal, Defendant made no reference to Plaintiff's Amended Complaint nor did the style utilized in the notice reflect that Plaintiff had named John Doe as an additional defendant to this action. ( Id.). Defendant, claims, however, that it is has never been served with the Amended Complaint. (Docket Entry No. 15 at 1). Defendant maintains it was served on April 6, 2011, but with original Complaint and Summons—not the amended one.⁴ ( Id.).

The original Complaint (hereinafter referred to as the “Complaint”) was attached to the Notice of Removal filed by Defendant. As such, the Complaint has been made a part of the court record in this cause of action. Nevertheless, since there are discrepancies regarding the Amended Complaint, the Court will address the issue of jurisdiction and its interplay with a fictitious defendant.

To establish original jurisdiction through diversity, the matter in controversy must exceed the sum of $75,000 and must be between citizens of different states. 28 U.S.C. § 1332(a). Diversity jurisdiction requires complete diversity; that is, no defendant may be a citizen of the same state as any plaintiff. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373–74, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978); Lampton v. Columbia Sussex Corporation, 2010 WL 3075752, *2 (E.D.Mich. Aug. 5, 2010).

Under 28 U.S.C. § 1441(b), an action brought in state court is removable “only if none of the parties in interest properly joined as defendants is a citizen of the state in which such action is brought.” As such, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). The court should resolve questions in favor of remand to state court, as the burden of proving proper federal jurisdiction is on the removing party. See Gafford v. Gen. Elec. Co., 997 F.2d 150, 155 (6th Cir.1993). Whether Defendant has the right to remove this case must be determined from the allegations in the Complaint at the time of removal. Holloway v. Pacific Indem. Co., 422 F.Supp. 1036, 1037 (E.D.Mich.1976) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1939)); Lampton, 2010 WL 3075752 at *2.

The Sixth Circuit has consistently relied on a strict interpretation of the language of this statute, disregarding fictitious defendants' citizenships without reference to any other factors. See, e.g., Curry v. U.S. Bulk Transp., Inc., 462 F.3d 536, 539 (6th Cir.2006); Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 948 (6th Cir.1994); Farris v. JPMorgan Chase Bank, No. 09–CV–14094–DT, 2010 WL 420015, *1, 2010 U.S. Dist. LEXIS 6991, *2–*3 (E.D.Mich. Jan. 28, 2010). The language of 28 U.S.C. § 1441(a) clearly and unambiguously states that the court may not consider the citizenship of a fictitious defendant for the purpose of determining whether to remand a case founded upon diversity jurisdiction. Lampton, 2010 WL 3075752 at *3. “Once [an] individual is properly joined, the court's diversity jurisdiction [would] be destroyed and a remand order [would] be proper pursuant to 28 U.S.C. § 1447(c).” Id. at *4; see also Curry, 462 F.3d at 539–40.

Plaintiff alleges upon information and belief that John Doe is an employee of Lowes and a resident of Putnam County, Tennessee. (Docket Entry No. 14 at 2). Consequently, he argues that his presence in the action destroys complete diversity between the parties as required by 28 U.S.C. § 1332. ( Id. at 3). Plaintiff further submits that “the distance between Cookeville, Tennessee and the nearest border of contiguous state (Kentucky) is more than 100 miles ... [and] it would be highly unlikely that any individual employed at the Lowe's store located in Cookeville, Tennessee, including Defendant John Doe, would be a citizen of any state other than Tennessee.” ( Id. at 7).

Defendant asserts that this Court has original jurisdiction because there is complete diversity among the parties. (Docket Entry No. 15 at 2). Plaintiff is a citizen of White County, Tennessee, and Defendant Lowes is a North Carolina Corporation. ( Id.). Defendant asserts that John Doe defendant is treated as a fictitious person, and as such, John Doe's citizenship should be disregarded in determining the court's jurisdiction over this case pursuant to 28 U.S.C. § 1441(a). ( Id. at 5).

At the time of removal, this Court had subject matter jurisdiction in accordance with the requirements of diversity jurisdiction under 28 U.S.C. § 1332, wherein the matter in controversy exceeded $75,000 and was between citizens of different states (Tennessee and North Carolina). Even if the Court accepts the Amended Complaint (adding John Doe as a party defendant), jurisdiction in this court is proper. The citizenship of John Doe, a fictitious defendant, cannot be considered for the purpose of determining whether to remand a case founded upon diversity jurisdiction.

Hence, the Court will retain jurisdiction in this matter.

II. Motion to Dismiss

The Federal Rules of Civil Procedure require Plaintiff to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed R. Civ. P. 8(a)(2). In deciding a motion to dismiss under Rule 12(b)(6), the court will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir.2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002). The court must assume that all of the factual allegations are true, even if they are doubtful in fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In contrast, legal conclusions are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).

Generally, a complaint does not need to contain “detailed factual allegations,” although its allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. “Blanket assertions” or a “formulaic recitation of the elements of a cause of...