United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING PLAINTIFF'S MOTION
TO REMAND (DOC. 4) 
COHN UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.”
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.
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.
Lots participated in the case evaluation proceedings. The
panel valued Johnson's claim in the amount of $600, 000.
Big Lots rejected the evaluation.
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.
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).
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