Tucker v. Walmart Stores E., L.P.

• Decision Date: 31 May 2019
• Docket Number: CIVIL ACTION NO. 3:18-CV-02284
• Parties: SHIRLEY TUCKER, Plaintiff, v. WALMART STORES EAST, L.P. et al., Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

SHIRLEY TUCKER, Plaintiff,
v.
WALMART STORES EAST, L.P. et al., Defendant.

CIVIL ACTION NO. 3:18-CV-02284

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

May 31, 2019

(MEHALCHICK, M.J.)

MEMORANDUM

Presently pending before the Court is a motion to remand the above-captioned action to the Court of Common Pleas of Pike County, Pennsylvania, filed by Plaintiff, Shirley Tucker (hereinafter "Tucker") on February 15, 2019. (Doc. 6). Upon detailed review of the arguments raised by the Parties in their respective briefs, for the reasons provided herein, Plaintiff's Motion to Remand (Doc. 6) shall be GRANTED.

I. BACKGROUND AND PROCEDURAL HISTORY

Tucker commenced this action against the Defendants, Wal-Mart Stores East, L.P. and Wal-Mart Stores, Inc. (collectively referred to as "Defendants"), in the Court of Common Pleas of Pike County on September 20, 2018. (Doc. 1-2, at 3-9).¹ In her complaint, Tucker alleges that she suffered injuries in a Wal-Mart store on September 24, 2016 when an unsecured stack of boxes fell on her. (Doc. 1-2, at 4-5). As a result of this incident, the complaint asserts a

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negligence cause of action against the Defendants and seeks damages in an amount in excess of "$40,000,00, together with all costs and disbursements." (Doc. 1-2, at 7).

On December 18, 2018, Tucker completed service of the complaint on the Defendants. (Doc. 6, at 1, ¶ 2). However, prior to being served with the complaint,² the Defendants filed a notice of Removal on November 28, 2018. (Doc. 1). Tucker filed a motion to remand to the Court of Common Pleas of Pike County, along with a brief in support thereof,³ on February 15, 2019. (Doc. 6). Defendants filed a reply and brief in opposition on March 1, 2019. (Doc. 7; Doc. 8), and Tucker subsequently filed two separate reply briefs on March 8, 2019. (Doc. 9; Doc. 10).

Having been fully briefed, this matter is now ripe for adjudication.

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II. REMOVAL STANDARD

The removal of cases from state courts to federal courts is governed by 28 U.S.C. §§ 1441-1455. Under § 1441(a), a defendant may remove "any civil action brought in a state court of which the district courts of the United States have original jurisdiction . . . to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). In the case at bar, Defendants filed a notice of removal pursuant to 28 U.S.C. § 1441(b), invoking diversity of citizenship under 28 U.S.C. § 1332(a). (Doc. 1, at 2). This provision states that a district court "shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs," between "citizens of different states." 28 U.S.C. § 1332(a)(1).

Section 1446 of the removal statute further sets forth the procedures for removal, explaining that a defendant seeking removal of an action must file a petition for removal with the district court that contains "a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants" in the state court action. 28 U.S.C. § 1446(a). In addition, a notice of removal "shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.]." 28 U.S.C. §§ 1446(b). After a case has been removed, a plaintiff may move to remand the action back to state court under 28 U.S.C. § 1447(c) for "(1) lack of district court subject matter jurisdiction or (2) a defect in the removal procedure." Ramos v. Quien, 631 F.Supp.2d 601, 607 (E.D. Pa. 2008) (quoting PAS v. Travelers Ins. Co., 7 F.3d 349, 352 (3d Cir.1993)). However, a "motion to remand the case on the basis of any defect other than lack of subject

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matter jurisdiction must be made within 30 days after the filing of the notice of removal[.]." 28 U.S.C. § 1447(c).

Because federal courts are courts of limited jurisdiction, both the Supreme Court of the United States and the Third Circuit Court of Appeals have recognized that removal statutes are to be strictly construed against removal with all doubts resolved in favor of remand. See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 - 109 (1941); Samuel-Bassett v. KIA Motors America, Inc., 357 F.3d 392, 396 (3d Cir. 2004) (citing Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)). "If the citizenship of the parties is not disclosed in the complaint, the case is not removable unless the defendant can affirmatively plead and later prove the existence of diversity." Balilaj v. Marshalls, Inc., No. CIV.A. 03-5908, 2004 WL 437448, at *2-4 (E.D. Pa. Mar. 2, 2004) (citing 16 James Wm. Moore et al., Moore's Federal Practice ¶ 107.14 (3d ed. 2002)); see also Rosenfield v. Forest City Enterprises, L.P., 300 F. Supp. 3d 674, 674-75 (E.D. Pa. 2018) ("[W]here, as here, it is not apparent from the face of the complaint that a case is removable, a defendant may remove within thirty days of receipt of an amended complaint, motion, order, or 'other paper' from which it may first be ascertained that the case is removable.") (citing 28 U.S.C. § 1446(b)3)). The Third Circuit has also repeatedly held that "the party asserting federal jurisdiction in a removal case bears the burden of showing, at all stages of the litigation, that the case is properly before the federal court." Frederico v. Home Depot, 507 F.3d 188, 193 (3d Cir. 2007); see also Samuel-Bassett, 357 F.3d at 396. Moreover, "a defendant utilizing diversity for removal must show that diversity existed not only upon removal but also at the time of commencement of the action in state court." Fiorentino v. Huntingside Assocs., 679 F. Supp. 3, 5 (E.D. Pa. 1987) (citing Kerstetter v. Ohio Casualty Ins.

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Co., 496 F.Supp. 1305, 1307 (E.D. Pa. 1980)); Ellerbee v. Union Zinc, Inc., 881 F.Supp. 162, 164 (E.D. Pa. 1995).

III. DISCUSSION

In moving to remand, Tucker argues that the Defendants have not sufficiently established the jurisdictional requirement of diversity of citizenship. (Doc. 6, at 1-2, ¶ 4). Specifically, Tucker alleges the notice of removal failed to assert that diversity existed between the parties upon the filing of the complaint in state court,⁴ and that "the record is devoid of any fact...sufficient to create jurisdiction in this court." (Doc. 6, at 2, ¶ 5; Doc. 6, at 7). In response, the Defendants argue that Tucker does not challenge removal based on a lack of diversity in fact—rather, she challenges removal based on alleged pleading defects in the notice of removal. (Doc. 8, at 5, 8). The Defendants further state that the removal petition established the necessary diversity between the parties, as they relied on an incident report that indicated Tucker's citizenship was diverse from that of the Defendants. (Doc. 8, at 4).

A. THE NOTICE OF REMOVAL FAILS TO ADEQUATELY ALLEGE THAT DIVERSITY OF CITIZENSHIP EXISTS BETWEEN THE PARTIES

In challenging the propriety of removal, Tucker claims that the Defendants failed to adequately allege the parties' citizenship at the time of the filing of the complaint. (Doc. 6, at 6-7). As discussed supra, "[i]f the grounds [for removal] are premised on diversity, the notice [of removal] must allege diversity at the time of the commencement of the action and at the time of

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the notice filing." Moser v. Bostitch Div. of Textron, Inc., 609 F. Supp. 917, 918-19 (W.D. Pa. 1985). Here, the Defendants' notice of removal avers as follows:

3. Plaintiff is a resident of Sullivan County, NY. (A true and correct copy of the Incident Report illustrating Plaintiff's residency is attached hereto and incorporated by reference herein as Exhibit "B.")

4. Walmart Stores East, L.P., is a foreign limited partnership formed in Delaware with a principal place of business in Bentonville, AR. See Ex. A.

5. The Partners of Walmart Stores East, L.P., are WSE Management, LLC (general partner), and WSE Investment, LLC (limited partner). Both are Delaware limited liability companies with principal places of business in Arkansas. The sole member of WSE Management, LLC, and WSE Investment, LLC, is Walmart Stores East, LLC, an Arkansas limited liability company with a principal place of business in Bentonville, Arkansas. The sole shareholder of Walmart Stores East, LLC, is Walmart, Inc. (formerly known as Wal-Mart Stores, Inc.), a Delaware corporation with a principal place of business in Arkansas. Accordingly, no partner or controlling entity of Defendant, Walmart Stores East, L.P., is a citizen of or has a principal place of business in the Commonwealth of Pennsylvania.

(Doc. 1, at 2-3) (emphasis added).

Based on these allegations, Tucker asserts that the notice of removal does not properly allege diversity existed between the parties at the time she filed this action in state court or upon the Defendants' removal. (Doc. 6, at 6-7; Doc. 9, at 2, ¶ 4; Doc. 10, at 4).

According to the Defendants, the notice of removal alleges that Tucker is a citizen of Sullivan County, New York. (Doc. 8, at 4). However, upon review, it is evident that the notice of removal simply states that Tucker is a resident of New York without referring to her citizenship. (Doc. 1, at 2). The terms "resident" and "citizen" are not interchangeable for diversity purposes and have distinct definitions under the law. See McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006) ("Citizenship is synonymous with domicile and the domicile of an individual is his true, fixed and permanent home and place of habitation.")

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(internal citations omitted); Krasnov v. Dinan, 465 F.2d 1298, 1300 (3d Cir. 1972) ("Where one lives is prima facie evidence of domicile, but mere residency in a state is insufficient for purposes of diversity.") (citations omitted). As such, the allegation that Tucker is a resident...