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Johnson v. Big Lots Stores, Inc.

United States District Court, E.D. Michigan, Southern Division

December 5, 2017




         I. Introduction

         This is a tort case. Plaintiff Carolanne Johnson is suing defendant Big Lots Stores, Inc. (Big Lots) claiming that Big Lots was negligent when an employee struck Johnson with a cart, injuring her ankle while she was shopping at a Big Lots store.

         Before the Court is Johnson's motion to remand on the grounds that the motion is untimely and Big Lots waived the right to remove. For the reasons that follow, the motion is DENIED.

         II. Background

         On October 27, 2016, Johnson filed a complaint in Wayne County Circuit Court. Johnson sought damages for “permanent injuries, which injuries have caused her pain, suffering, disability and mental anguish and will in the future cause to suffer from the same.” Johnson plead in excess of $25, 000; the jurisdictional threshold.

         On February 14, 2017, Big Lots served its First Set of Interrogatories and Requests for Production of Documents on Johnson. The discovery requests sought information related to Johnson's medical expenses, lost wages, and alleged damages. In response, Johnson identified medical expenses and lost wages in the amount of $15, 570.72. Further, in response to Interrogatory No. 8, in which Big Lots specifically requested that Johnson “provide an accounting demonstrating the amount of ... alleged damages.” Johnson responded that they would be “provided as discovery progresses.” During Johnson's deposition, Big Lots asked Johnson if there is “a specific dollar amount of damages” that she was seeking. Johnson's counsel interrupted, and said that they “were not prepared to give that today.”

         Big Lots eventually filed a motion to compel. The state court granted the motion and directed Johnson to provide additional discovery responses. Johnson provided supplemental responses. Again in response to Interrogatory No. 8 regarding damages, Johnson stated that an accounting of her alleged damages would be “provided as discovery progresses.” Discovery closed on September 26, 2017 and no further response was provided.

         The case was eventually submitted to Michigan's case evaluation process under M.C.R. 2.403 which provides for mandatory case evaluation in tort cases. See M.C.R. 2.403(A)(2). A case evaluation hearing was scheduled for September 26, 2017. The parties were directed to submit case evaluation summaries by September 12, 2017. Big Lots submitted a timely summary. Johnson, however, did not submit her case evaluation summary until September 25, thirteen days late and the day before the scheduled evaluation hearing. In her case evaluation summary, Johnson claimed damages in the amount of $850, 000, and further stated that she would seek $975, 000 in damages if Big Lots refused to admit liability.

         Big Lots participated in the case evaluation proceedings. The panel valued Johnson's claim in the amount of $600, 000. Big Lots rejected the evaluation.

         Four days after receiving Johnson's case evaluation summary and three days after the case evaluation proceedings, on September 29, 2017, Big Lots removed the case to federal court on the grounds of diversity.

         III. Legal Standard

         A defendant in a civil action brought in state court may remove the action to federal court, provided that the federal court has original jurisdiction. 28 U.S.C. § 1441(a). The federal court has original diversity jurisdiction when the matter is between citizens of different states and the amount in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs. 28 U.S.C. § 1332(a)(1).

         A case shall be removed within 30 days after the receipt by the defendant of copy of the initial pleading setting forth the claim for relief upon which the action is based. 28 U.S.C. § 1446(b)(1). However, when removal is not ascertainable from the original petition, but in the course of state court litigation it becomes apparent that the case is removable to federal court, the party may file a "notice of removal within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28. U.S.C. §1446(b)(3). A case becomes removable if the plaintiff performs a voluntary act which effects a change rendering a case subject to removal by the ...

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