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Callender v. Wal-Mart Louisiana LLC

United States District Court, W.D. Louisiana, Lake Charles Division

January 15, 2015

JACKIE CALLENDER,
v.
WAL-MART LOUISIANA LLC

MEMORANDUM RULING

KATHLEEN KAY, Magistrate Judge.

Before the Court is a motion to remand filed by the plaintiff, Jackie Callender (hereinafter "plaintiff") on October 1, 2014, in response to a Notice of Removal filed by the defendant, Wal-Mart Stores Inc., Wal-Mart Louisiana LLC (hereinafter "defendant") on September 5, 2014. For the reasons given below, the plaintiff's motion is hereby DENIED.

I. FACTS & PROCEDURAL HISTORY

On September 29, 2013, the plaintiff alleges to have slipped and fallen on a liquid substance in a dressing room while visiting Wal-Mart Louisiana LLC store number 107 in Oakdale, Louisiana. As a result of her fall, plaintiff claims she suffered injuries to her back, neck, and shoulders. Thereafter she filed a petition in state court seeking damages for loss of enjoyment of life, mental anguish, past and future medical expenses, and past and future pain and suffering. Doc. 7, att. 3 p. 1. The plaintiff's petition did not provide a specific amount of damages.

On December 19, 2013, the defendant submitted numerous interrogatories and requests for admissions to the plaintiff. Among those interrogatories was one asking: "Does the amount in dispute exceed the sum of $75, 000.00?" Doc. 9, att. 2, p. 2; Id., att. 3, p. 1 On April 8, 2014 the plaintiff responded to the query by stating that "[t]he exact value of this claim is unknown as treatment continues. However, we do not anticipate the value of this claim exceeding $75, 000.00." See Id.

Following these discovery responses the record indicates that the plaintiff had an MRI of the lumbar spine on April 16, 2014. Doc. 9, att. 5, pp. 1-2. In addition, she returned to the doctor twice, once on May 13 and again on June 12, 2014. During those visits, a second MRI of the cervical spine was recommended. Whether this second MRI took place is unclear from the documentation provided but it is evident that the plaintiff was given a referral for physical therapy and that cervical and lumbar spine injections were also recommended. See Doc. 9, att. 6. A summary of the plaintiff's medical expenses indicates that from September 30, 2013, the day after the alleged injury, to July 29, 2014, the plaintiff incurred $5, 365.60 of medical expenses. Id. at p. 7.

On August 11, 2014, counsel for the plaintiff sent a settlement demand letter to the defendant indicating that as a result of the injuries alleged in her complaint, the plaintiff was

... required to undergo extensive physical therapy and conservative treatment for... nine (9) months. Due to the failure of this treatment, [the treating physician] has recommended cervical and lumbar injections. Ms. Callendar has indicated her willingness to pursue all treatment options.
Based on the above, I propose we settle Ms. Callendar's case for $90, 000 plus specials for a total of $95, 365.60 and invite your reasonable counter-offer. Below are several cases supporting this demand.
...

Doc. 9, att. 4, p. 1. The letter then goes on to list no less than three state court cases in which Louisiana's First, Third, and Fourth Circuits have all awarded in excess of $100, 000 for spinal injuries very similar to that alleged by the plaintiff where no surgery was recommended or performed. Id. (citing Fontenot v. Laperouse 774 So.2d 278 (2000); Keller v. City of Plaquemine, 700 So.2d 1285 (1997); Courtney v. Williams, 826 So.2d 594 (2002).

On September 5, 2014, after receipt of this settlement offer, the defendant filed its Notice of Removal in this court. Following removal, on September 10, 2014, the defendant then submitted a counter-offer to the plaintiff's earlier settlement demand letter offering $5, 000 for the resolution of the case. Doc. 7, att. 7, p. 1. Upon receipt of the defendant's post-removal counter-offer, the plaintiff claims that it then submitted to the defendant yet another offer of $72, 500.00. Doc. 7, p. 2. The plaintiff filed the instant motion to remand on October 1, 2014.

In its Notice of Removal, the defendant argues that the settlement demand it received on August 11, 2014 was its "first notice that this case was removable to Federal Court" because it (1) contained a settlement offer far exceeding the jurisdictional requisite amount of $75, 000.00, (2) indicated that plaintiff suffered injuries to her lower back, including multiple disc protrusions in both her lumbar and cervical spine, (3) showed that treatment had failed and that she was required to undergo extensive physical therapy, and finally (4) indicated that cervical and lumbar epidural steroid injections had been recommended and that the plaintiff would be pursuing all recommendations made. Doc. 1, p. 4. The defendant claims that all of this, taken together with the fact that the plaintiff is claiming damages for past and future medical expenses as well as for loss of enjoyment of life, mental anguish, emotional stress, and past and future pain and suffering indicates that the amount in controversy is clearly met. Id. Additionally, the defendant directs our attention to a multitude of Louisiana cases and, notably to those cited by the plaintiff in its settlement offer, supra, which indicate that similar and even lesser injuries than those alleged (i.e. those in which only one spinal disc had been injured) have routinely resulted in general damage awards of at least $50, 000. The plaintiff herein, says the defendant, has allegedly injured numerous discs in both her cervical and lumbar spine and thus her general damages will easily meet the jurisdictional requisite of $75, 000 and, in fact, will likely exceed it. Doc. 9, pp. 11-12.

In support of remand the plaintiff argues that the statements she provided in her discovery responses, namely that "the exact value of this claim is unknown" and that "we do not anticipate the value of this claim to exceed $75, 000" are sufficient to show us to a legal certainty that her claims do not meet the amount required for federal jurisdiction. Doc. 7, att. 1, pp. 3-4. Moreover, says the plaintiff, the "other paper" relied on by the defendant (the settlement demand letter) does not indicate with sufficient certainty that the amount in controversy is met. Indeed, as a general matter, claims plaintiff, "[i]t is common practice for plaintiffs' initial offer of settlement to be higher than the value of the claim, due to the fact that plaintiffs most often reduce ...


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