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Robinson v. Peck

United States District Court, N.D. Georgia, Atlanta Division

November 12, 2014

LARRY ROBINSON, Plaintiff,
v.
ANTHONY PECK and ADVANCE STORES COMPANY, INCORPORATED, D/B/A ADVANCE AUTO PARTS, Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Plaintiff Larry Robinson's ("Robinson" or "Plaintiff") Motion to Remand ("Motion" [6]).

I. BACKGROUND

On April 25, 2014, Plaintiff filed his Complaint ("Complaint" [1.1]) in the State Court of DeKalb County, Georgia.[1] Plaintiff asserts that, on May 6, 2012, he was injured at Defendant Advance Auto Parts' ("Advance" or Defendant") store in Chamblee, Georgia. Plaintiff alleges that, when he exited the store, he "slipped and fell on a liquid that had fallen or accumulated on and remained on the surface near the exit area of the store premises." (Compl. at ¶ 7). Plaintiff alleges that Anthony Peck ("Peck") was the General Manager at the time of the accident and had "overall responsibility to keep the premises in good repair and free of defects and dangers to the public who would come upon the premises as business invitees." (Compl. at ¶ 2). Plaintiff further asserts that Advance and its agents were negligent in failing to warn him of the "dangerous condition imminently perilous to Plaintiff." (Id. at ¶ 10). Plaintiff states that he suffered "severe injuries of body and mind [that he] still suffers, and continues to suffer... [and was] permanently partially disabled." (Id. at ¶¶ 12, 15). Plaintiff seeks general and special damages, in unspecified amounts, "the costs of this action, " and "further relief that the Court or jury may deem fair, just, and equitable." (Id. at ¶ 18).

On April 30, 2014, a process server personally served a copy of the Complaint and Summons on Advance's registered agent in Marietta, Georgia.

On May 1, 2014, process server Roberto Zayas ("Zayas") attempted to serve Peck by leaving a copy of the Complaint and Summons with current store manager, Phillip Johnson.[2]

On May 20, 2014, Zayas attempted to serve Peck at 3862 Pleasant Oak Drive, Lawrenceville, Georgia. (Ex. A [6.1] at 10). There, he purportedly encountered Martha Johnson in the driveway. Zayas asked whether Peck lived at the address. According to Zayas, she would not confirm or deny whether Peck lived there.[3] (Id.). Based on Ms. Johnson's evasive response, Zayas states that he had reason to believe Peck resided at the address and placed the Summons and Complaint in Ms. Johnson's hands. (Id.). She allegedly threw the papers to the ground, stating that she did not want to get involved in the matter and told Zayas that she would notify Peck that he was searching for him. (Id.). Zayas states that he "notoriously served Anthony Peck by leaving Summons, Complaint and Appointing order in hand of Ms. Martha Johnson." (Id.).

On May 20, 2014, Defendant's counsel sent a proposed stipulation to Plaintiff's counsel, requesting that Plaintiff stipulate that his damages are less than $75, 000. ("Proposed Stipulation" [1.7]). Plaintiff did not sign the stipulation.

On May 29, 2014, Defendant removed the DeKalb County action to this Court on the basis of diversity jurisdiction. (Notice at ¶ 7). In support of removal, Defendant states that Plaintiff is a citizen of Chamblee, DeKalb County, Georgia and that Advance is a corporation "formed under the laws of the State of Delaware" and headquartered in Roanoke, Virginia. (Id. at ¶ 8). Defendant asserts that Peck was not served and thus was not required to join the removal because he was not a party at the time of removal.[4] Defendant further contends that complete diversity exists between Plaintiff and Advance. Defendant claims that the amount in controversy requirement is also met because Plaintiff did not sign Advance's requested stipulation that Plaintiff's damages in this action do not exceed $75, 000 exclusive of interests and costs.[5] (Id. at ¶ 9).

On June 26, 2014, Plaintiff filed his Motion to Remand. Plaintiff argues that removal was improper because Peck, a properly served defendant in this action, did not join in the removal. (Mot. at ¶¶ 1-6). Plaintiff also asserts that Plaintiff and Peck are citizens of Georgia and thus complete diversity does not exist. (Id. at ¶ 7). Finally, Plaintiff argues that Defendant did not meet its burden to show, by a preponderance of the evidence, that the jurisdictional amount requirement is met.

On July 10, 2014, Advance filed its Brief in Opposition to Plaintiff's Motion to Remand ("Opposition" [8]). Defendant argues that Peck was fraudulently joined to defeat diversity and his citizenship is not considered to determine if diversity exists.[6] (Opp. at 5). Defendant argues also that Peck was not properly served, is not a party to the case, and was not required to join the removal. (Id. at 10-13). Defendant reiterates that Plaintiff refused to stipulate to limit his claim for damages to $75, 000, and argues further that the nature of the damages he alleges establishes, by a preponderance of the evidence, that the jurisdictional amount was met. (Id. at 14-15).

II. DISCUSSION

A. Legal Standard

"Any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant." 28 U.S.C. § 1441(a). Federal district courts have original jurisdiction over claims in which the amount in controversy exceeds $75, 000 and is between citizens of different ...


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