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Kidney v. Webster

United States District Court, N.D. New York

February 27, 2017

RICHARD F. KIDNEY, Plaintiff,
v.
JOHN WEBSTER, et al., Defendants.

          MEMORANDUM-DECISION AND ORDER

          LAWRENCE E. KAHN, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This case arises from an alleged slip and fall that took place at a Wal-Mart Supercenter in Vestal, New York, on April 12, 2013. Dkt. No. 2 (“Complaint”) ¶¶ 3-10. On July 7, 2016, Defendants removed this action to the Northern District of New York pursuant to 28 U.S.C. § 1441, asserting diversity jurisdiction under 28 U.S.C. § 1332. Dkt. No. 1 (“Notice of Removal”) ¶ 13. Presently before the Court are Defendants' motion to dismiss for lack of personal jurisdiction, insufficient service of process, and failure to state a claim, and pro se plaintiff Richard F. Kidney's motion to remand. Dkt. Nos. 5 (“Motion to Dismiss”), 21 (“Motion to Remand”). Defendants responded to the Motion to Remand, Dkt. No. 22 (“Response”), and Kidney filed a reply, Dkt. No. 24 (“Reply”). For the following reasons, Defendants' Motion is granted and Kidney's Motion is denied.

         II. BACKGROUND[1]

         Kidney and his family live in Owego, New York. Compl. ¶ 1. The individual defendants-John Webster, Bill Shiohira, Melissa Fahey, Greg Foran, Doug McMillon, and David Stills-are all residents of Arkansas. Notice of Remand ¶¶ 4-9. Webster, Shiohira, and Fahey work for Claims Management, Inc. (“CMI”), which is an arm of Wal-Mart Stores, Inc. Compl. ¶ 2. Foran is the President and CEO of Wal-Mart U.S., McMillon is the President and CEO of Wal-Mart Stores, Inc., and Stills is Vice President of Risk Management at Wal-Mart Stores, Inc. Id. Kidney also named the Wal-Mart Supercenter in Vestal as a defendant, id. at 1, but that store location is not a legal entity and so cannot be sued. The Supercenter in question is operated by Wal-Mart Stores East, LP, which “is a Delaware Limited Partnership with a principal place of business in the state of Arkansas.” Notice of Removal ¶ 10. Kidney appears to have wanted to include Wal-Mart Stores, Inc. and CMI as defendants as well, since one of his causes of action is asserted against “CMI” and “Wal-Mart.” Compl. ¶ 17.[2] Yet neither is named in the caption of the Complaint. Id. at 4. Finally, Kidney included “un-named others” in the caption, id., though the remainder of his Complaint fails to refer to any unnamed persons (not counting Wal-Mart Stores, Inc. and CMI) as potential defendants.

         On April 12, 2013, Kidney took his wife and two children to a Wal-Mart Supercenter in Vestal, New York. Id. ¶ 7. Kidney was wearing “rubber soled sneakers with plenty of tread (traction) on them.” Id. ¶ 9. Inside the Wal-Mart there was a tax preparation booth near the men's bathroom. Id. ¶ 7. Kidney decided to have his taxes done while his wife went shopping. Id. When it was Kidney's turn to have his taxes prepared, he sat down in a chair that faced the tax preparer's desk, “giving [him] a clear and open view of the men[']s room.” Id. Kidney sat there for somewhere between ninety and 150 minutes, and during that time he did not notice anyone entering the men's bathroom to perform cleaning. Id.

         At some point, Kidney and his son entered the men's bathroom. Id. ¶ 8. The sinks were covered with yellow tape, presumably indicating that they were off-limits. Id. “There were no other signs” in the bathroom, and Kidney saw “toilet paper and spills on the floor.” Id. Kidney's son used a urinal and Kidney entered a stall. Id. ¶ 9. The floor in the stall “had urine and toilet paper laying along its base, ” but Kidney asserts that he did not see the urine and toilet paper on the floor while he was sitting on the toilet. Id. He also says he was “not distracted and was using the bathroom for its proposed purpose.” Id. When Kidney got up from the toilet, he slipped and fell, “banging [his] face[] and knees, while twisting [his] back.” Id. When he tried to get up from the floor, he fell again. Id. His next attempt at standing up was successful, and this time he was assisted by his son, who became upset when he saw that his father's face was bleeding. Id. ¶ 10. Kidney left the bathroom to find the rest of his family, and they went to customer service “to warn [customer service] so no one else could get hurt.” Id. The manager sent some employees into the bathroom and “assured [Kidney] that they would take care of the [situation].” Id. The manager then asked Kidney to “fill out an incident report.” Id. Kidney's wife had to fill out the form because he had hurt his hands, but he signed it. Id. Within twenty-four hours of the slip and fall, Kidney went to the emergency room. Id. ¶ 11.

         Soon after the incident, “Walmart through CMI called [Kidney] asking that he not hire an attorney.” Id. ¶ 18. Wal-Mart told him that the case could be settled if he submitted the appropriate paperwork, and that Webster would be in charge of his case. Id. Kidney claims that Webster and his coworkers at CMI then “tried to wear [him] down . . . by [engaging in] stalling tactics.” Id. ¶ 19. Webster “fail[ed] to expedite litigation by repeatedly saying required medical releases were missing.” Id. Webster also told lies and engaged in deception, for example by changing his address from one in Arkansas to one in Kentucky without informing Kidney. Id. ¶ 20. As an another example of the deceit to which he was subjected, Kidney points to Webster or CMI's failure to respond to his request to see a copy of the incident report his wife had filled out for him. Id. ¶ 22. Webster eventually made a settlement offer that Kidney considered too small to “help with much more than a fraction of the debt caused” by the incident. Id. ¶ 21.

         Shiohira, another CMI employee, also worked on Kidney's case, and Kidney appears to allege that Shiohira lied to and deceived him as well. Id. ¶¶ 28-30. Kidney says Shiohira sent him a letter dated October 6, 2014, which stated that more information was needed before a settlement offer could be made. Id. ¶ 29. This “contradict[ed the] previous letter from Webster saying all medicals were received and a settlement offer was made.” Id. Fahey, who also worked for CMI, sent another letter to Kidney on February 10, 2015. Id. ¶ 35. Kidney had never heard of Fahey before he received this letter. Id. ¶ 37. In the letter, Fahey told Kidney that it appeared Wal-Mart had exercised reasonable care, and it would typically not make a payment on this kind of case. Id. But Fahey said the previous settlement offer of $5, 000 would stand for twenty days after the date of the letter. Id.; Reply Ex. B at 3.[3] Kidney felt this offer was inadequate; he describes it in the Complaint as “ridiculously low.” Compl. ¶ 37. Kidney does not explicitly say in his Complaint that he rejected the offer, though he implies that he did so when he asserts that “[e]ven though defendants have not paid anything to the plaintiff they reported . . . to Medicare that they did.” Id. ¶ 60.[4]

         The Complaint contains no indication that Foran, McMillon, or Stills had anything to do with Kidney's case, and Kidney appears to hold them responsible for what CMI and its employees did to him under some kind of respondeat superior theory. Id. ¶¶ 43-44, 49-50, 55-56.

         Kidney draws several other legal conclusions from the events just recounted. He says that “Defendants devised and executed a scheme to defraud” him. Id. ¶ 23. He also claims that he was the victim of intentional infliction of emotional distress at the hands of each individual defendant. Id. ¶¶ 27, 33, 41, 47, 53, 59. He accuses Defendants of engaging in “racketeering activity, ” id. ¶ 36, and he notes that “at a certain time during discovery there should be enough evidence to charge some or all of the defendants with crimes, ” id. at 20.

         On April 20, 2016, Kidney filed his Complaint in the Supreme Court of the State of New York, County of Tioga. Compl. at 4. Beginning June 7, 2016, Defendants started to receive copies of the Complaint that Kidney had sent them. Notice of Removal ¶ 2. Then, on July 7, 2016, Defendants removed this action to the Northern District of New York. Id. ¶ 15. Defendants moved to dismiss the Complaint on July 14, 2016, arguing that Kidney had failed to properly serve Defendants, that the Court lacked personal jurisdiction over the individual defendants, that any claims related to the incident at the Wal-Mart and its aftermath are barred by the applicable statutes of limitations, and that the remaining allegations in the Complaint fail to state a plausible claim for relief. Dkt. No. 5-2 (“Memorandum”) at 1. In lieu of responding to the Motion to Dismiss, Kidney moved to remand on the ground that diversity jurisdiction is defeated by the manager of the Vestal Wal-Mart, an alleged defendant residing in New York whose identity remains unknown to Kidney because Defendants have withheld it from him. Mot. to Remand ¶¶ 6, 10.

         III. DISCUSSION

         A. Motion to Remand

         28 U.S.C. § 1441(a) permits a defendant to remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction” to a district court of the United States. The Second Circuit has recognized that, “[i]n light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability.” Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941)). But a court “should be cautious about remand, lest it erroneously deprive [a] defendant of the right to a federal forum.” Contitrade Servs. Corp. v. Eddie Bauer Inc., 794 F.Supp. 514, 516 (S.D.N.Y. 1992) (quoting Manas y Pineiro v. Chase Manhattan Bank, N.A., 443 F.Supp. 418, 419 (S.D.N.Y. 1978)).

         Moreover, federal courts may not hear a case in the absence of subject matter jurisdiction. A lack of subject matter jurisdiction may not be waived and may be raised by motion or sua sponte at any time. Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 107 (2d Cir. 1997); see also Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). In the absence of subject matter jurisdiction, federal courts must remand a removed case to state court. 28 U.S.C. § 1447(c).

         Defendants argue that remand is inappropriate because the Court has diversity jurisdiction over the case. Resp. at 2. Diversity jurisdiction requires “complete” diversity among the parties-that is, no adverse parties may be citizens of the same state. Herrick Co. v. SCS Commc'ns, Inc., 251 F.3d 315, 322 (2d Cir. 2000) (citing Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978)); accord St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005) (“Diversity is not complete if any plaintiff is a citizen of the same state as any defendant.”). For purposes of diversity jurisdiction, a corporation is a citizen of any state in which it is incorporated, as well as the state where it maintains its principal place of business. 28 U.S.C. § 1332(c)(1); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 94 (2005).

         Diversity jurisdiction also requires that there be more than $75, 000 in controversy. 28 U.S.C. § 1332(a). A removing defendant need show only “a ‘reasonable probability' that the claim is in excess of the statutory jurisdictional amount.” United Food & Commercial Workers Union v. Centermark Props. Meriden Square, Inc., 30 F.3d 298, 304-05 (2d Cir. 1994) (quoting Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994)). The burden of meeting the amount-in-controversy requirement is “hardly onerous . . . for we recognize a rebuttable presumption that the claim is in excess of the statutory jurisdictional amount.” Scherer v. Equitable Life Assurance Soc'y of the U.S., 347 F.3d 394, 397 (2d Cir. 2003).

         The amount-in-controversy requirement has been met here, because Kidney seeks at least $2, 050, 000 in damages from Defendants. Compl. ¶ 60. Kidney is a New York citizen, and every named defendant is either an Arkansas or Delaware citizen. Id. ¶¶ 1-2; Resp. at 2. But Kidney argues that complete diversity is lacking because “one defendant, ” the manager of the Vestal Wal-Mart, is “also a resident from New York.” Mot. to Remand at 4. Kidney describes the manager as “a witness and a critical part of the occurrences of the day of my injuries, ” and he claims that Defendants are preventing him from obtaining the manager's identity. Id.

         Section 1441(b)(1) provides that “[i]n determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.” In other words, “the citizenship of a fictitious defendant . . . may be ignored in determining whether the requisite diversity exists. So as long as there is complete diversity between each plaintiff and each of the known and named defendants, the case may be removed.” Bowen v. Home Depot, No. 01-CV-2411, 2001 WL 920263, at *1 (E.D.N.Y. Aug. 1, 2001); see also Lederman v. Marriott Corp., 834 F.Supp. 112, 113 (S.D.N.Y. 1993) (“So-called ‘Doe' defendants are disregarded for purposes of determining diversity of citizenship jurisdiction under 28 U.S.C. § 1332 in cases removed to United States district courts pursuant to 28 U.S.C. § 1441.”).

         Kidney included “un-named others” in the caption of his Complaint, Compl. at 4, and he appears to argue that one of the unnamed defendants is the manager of the Vestal Wal-Mart. One problem with this argument is that the Complaint does not contain any indication that Kidney regards the manager as a defendant. The manager makes only a brief appearance, sending a team of employees into the men's bathroom and asking Kidney to fill out an incident report. Id. ¶ 10. Further, none of the causes of action in the Complaint is directed at the manager. Id. ¶¶ 19-60. So while the caption includes a reference to “un-named others, ” there is really nothing in the Complaint to give Defendants notice that Kidney views the manager as a defendant. And Kidney's Motion to Remand refers to the manager as a “vital witness, ” Mot. to Remand at 4, lending further support to the idea that Kidney does not intend the manager to be a defendant in this case. In any event, since § 1441(b)(1) forbids consideration of fictitious defendants in determining whether removal was proper, and since all the named defendants are diverse from Kidney, removal to this Court was indeed proper, and Kidney's Motion must be denied.

         Kidney suggests that Defendants are improperly maintaining diversity jurisdiction by withholding the identity of the manager from him. Mot. to Remand at 4. But again, the most plausible reading of Kidney's filings is that he considers the manager a witness with important information rather than a defendant. And the Court is aware of no authority requiring Defendants to disclose the identity of someone such as the manager before discovery begins. See Newcombe v. Adolf Coors Co., 157 F.3d 686, 690 (9th Cir. 1998) (finding, in the removal context, that “the defendants were under no legal obligation to disclose the [potential defendant's] identity prior to ...


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