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Doiel v. Smith's Food & Drug Centers, Inc.

United States District Court, D. Nevada

September 27, 2019

NEVA DOIEL, Plaintiff,
v.
SMITH'S FOOD & DRUG CENTERS, INC., et al., Defendants.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Plaintiff Neva Doiel sued Defendants Smith's Food & Drug Centers, Inc., the Kroger Co., and Kroger Dedicated Logistics (collectively, “Smith's”), after an employee ran into her while pushing a cart stacked high with food, she fell, and was injured in one of Smith's grocery stores in Dayton, Nevada. (ECF No. 1-1.) Smith's removed the case to this Court. (ECF No. 1.) Before the Court is Plaintiff's motion to remand, which is based on the contention that Smith's' removal was untimely (the “Motion”).[1] (ECF No. 9.) Because Plaintiff's pre-litigation demand letter did not start the removal clock running under applicable Ninth Circuit precedent, and as further explained below, the Court will deny the Motion.

         II. BACKGROUND

         The following allegations come from the Complaint. (ECF No. 1-1.) Plaintiff was shopping in the frozen aisle of a Smith's grocery store in Dayton, Nevada. (Id. at 3-4; see also ECF No. 9-1 at 8-12.) An employee pushed a cart loaded with food into her. (ECF No. 1-1 at 4.) Plaintiff was knocked over and injured. (Id.)

         Plaintiff filed her Complaint in the Second Judicial District Court in and for the County of Washoe (ECF No. 1-1 at 2), and Smith's removed based on diversity jurisdiction (ECF No. 1 at 1). Plaintiff appears to assert a single claim of negligence in her Complaint. (ECF No. 1-1 at 4.) Plaintiff seeks general and special damages in excess of $15, 000 and her costs of suit. (Id.)

         As to Smith's' removal and the arguments presented in the Motion, Plaintiff sent a demand letter on February 6, 2019 to Sedgwick, Smith's' third-party claims administrator, stating that Plaintiff suffered $198, 287.71 in medical expenses and $222, 420.00 in lost wages as a result of this accident. (ECF Nos. 9 at 2, 9-1 at 24.) Sedgwick wrote back on February 12, 2019 that it could neither accept nor reject Plaintiff's demand. (ECF No. 9-1 at 25.) Plaintiff filed her Complaint in state court on April 15, 2019, and Smith's was served on May 2, 2019. (ECF Nos. 1-1 at 2, 9 at 2, 9-2.) Plaintiff filed a notice of exemption from arbitration in the state court proceeding on June 20, 2019 that also identified Plaintiff had incurred medical expenses sufficient to satisfy the amount-in-controversy requirement. (ECF Nos. 9 at 3, 11 at 4.) Smith's removed the case to this Court on July 11, 2019, citing Plaintiff's notice of exemption from arbitration as the document indicating the amount-in-controversy requirement was satisfied. (ECF No. 1 at 2.)

         III. LEGAL STANDARD

         Federal courts are courts of limited jurisdiction, having subject-matter jurisdiction only over matters authorized by the Constitution and Congress. See U.S. Const. art. III, § 2, cl. 1; see also, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A suit filed in state court may be removed to federal court if the federal court would have had original jurisdiction over the suit at the commencement of the action. See 28 U.S.C. § 1441(a). However, courts strictly construe the removal statute against removal jurisdiction, and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (emphasis added). The party seeking removal bears the burden of establishing federal jurisdiction. See Kokkonen, 511 U.S. at 377.

         Removability under 28 U.S.C. § 1446(b) is determined through “examination of the four corners of the applicable pleadings, not through subjective knowledge or a duty to make further inquiry.” Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). The Harris court continued:

Thus, the first thirty-day requirement is triggered by defendant's receipt of an ‘initial pleading' that reveals a basis for removal. If no ground for removal is evident in that pleading, the case is ‘not removable' at that stage. In such case, the notice of removal may be filed within thirty days after the defendant receives ‘an amended pleading, motion, order or other paper' from which it can be ascertained from the face of the document that removal is proper.

Id. (citing 28 U.S.C. § 1446(b)).

         IV. DISCUSSION

         Plaintiff does not request a specific amount of damages in the Complaint, instead alleging both general and special damages in excess of $15, 000. (ECF No. 1-1.) But the parties agree they are diverse and the amount in controversy exceeds ...


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