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Dapremont v. Supervalu, Inc.

United States District Court, E.D. Louisiana

April 14, 2015

ALERIE DAPREMONT
v.
SUPERVALU, INC., ET AL., Section

ORDER AND REASONS

STANWOOD R. DUVAL, Jr., District Judge.

Before the Court is a Motion to Remand (Doc. 6) filed by plaintiff seeking to have this suit remanded to the Civil District Court for the Parish of Orleans, State of Louisiana. Plaintiff maintains that defendant Moran Foods, LLC d/b/a Save-A-Lot, Ltd. ("Moran") failed to remove this matter timely as required by 28 U.S.C. § 1446(b). Having reviewed the pleadings, memoranda, exhibits and the relevant law, the Court finds merit in this motion.

Background

On April 11, 2013, Valerie Dapremont allegedly tripped and fell due to a piece of wood that was protruding from beneath a produce display in an aisle at defendant's store. (Doc. 5-1, Petition for Damages, ¶ II). The instant suit for damages was filed on February 6, 2014. No specific dollar amount is pleaded, as it is prohibited under Louisiana law to do so in a petition; however, paragraph IV of the petition states that pursuant to La. Code of Civ. Proc. art. 893, "her individual damages could exceed the specific amount of damages necessary to establish the right to a jury trial." This statement means that plaintiff seeks at least $50, 000.00 in damages. La. Code of Civ. Proc. art. 1732.

She alleges that as a result of this accident she "was caused bodily injuries, including, but not limited to her head, arms, teeth and face." (Doc. 5-1, Petition for Damages, ¶ VI). She seeks past, present, future physical and future mental and physical suffering along with past and future medical expenses and loss of income. Id. at ¶ 8. A First Supplemental and Amending petition was filed on March 21, 2014 correcting the corporate name of the defendant.

On June 3, 2014, Plaintiff's counsel provided Plaintiff's medical records which included notations from her treating orthopedic surgeon, Dr. Benjamin Guevara. (Doc. 7-1). In these documents, as of September 4, 2013, Dr. Guevara noted:

She now has a lot of pain again particularly with raising her arm above her head or trying to get dressed. She rates her pain as a 0/10 today but up to 6/10 with certain activities. The MRI showed a large retracted rotator cuff tears of the entire subscapularis, supraspinatus, infraspinatus with possibly very little remaining fibers of the teres minor.

(Doc. 7-1 at 48 of 82). On this same date, he noted that the MRI of the right shoulder showed "large full-thickness tear involving much of the supra humeral rotator cuff. His assessment of that day states:

I Spent (sic) a long time discussing rotator cuff tearing with the patient today. The patient has a massive rotator cuff tear that is likely not repairable. She has surprisingly good strength and range of motion with very little pain considering the extent of her injury. I recommended some physical therapy for her shoulder, since I do not know if I could fix this. We also briefly discussed arthroscopic debridement versus repair and then ultimately a reverse shoulder arthroplasty. She'll followup in about 6 weeks. I gave her a prescription for physical therapy in New Orleans east.

(Doc. 7-1 at 49 of 82). Thus, it appears these documents which were produced to defendant on June 3, 2014, provide the first indication that a rotator cuff injury had occurred that could result in surgery.

She apparently then had an acute flare up on January 13, 2014, at which time she met with Dr. Guevara who recommended a cortisone injection which she accepted. On January 22, 2014 she apparently contacted the doctor to tell him that the injections had not eased the pain. (Doc. 701 at 60 of 82).

On June 3, 2014, responding to an interrogatory propounded in the litigation as to whether she in good faith contended that her damages reach or exceed $75, 000.00 for federal diversity jurisdiction purposes, stated as follows: "Objection. Plaintiff responds, she is not legally qualified to determine if her cause of action exceeds $75, 000.00. Further answering, plaintiff is still under treatment for related injuries and is unable to quantify her damages." (Interrogatory and Answer No. 22, Exhibit F, Doc. 1-7) at 6 of 8). In addition, in her Answers to Interrogatories, plaintiff itemized only $2, 958.00 in medical bills. ((Doc. 7-3, Interrogatory No. 14, at 4 of 8.

On June 20, 2014, Dr. Guevara again treated plaintiff and his notes of this ...


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