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Herkenhoff v. Supervalu Stores, Inc.

United States District Court, E.D. Missouri, Eastern Division

August 8, 2014

KATHERINE HERKENHOFF, Plaintiff,
v.
SUPERVALU STORES, INC. d/b/a SHOP N SAVE, et al. Defendants.

MEMORANDUM AND ORDER

STEPHEN N. LIMBAUGH, Jr., District Judge.

On June 16, 2014, this Court ordered the parties to address this Court's subject matter jurisdiction in light of the addition of new defendants to the complaint. Plaintiff responded with a motion to remand (#40) and a motion to file her third amended complaint (#41). Defendants responded with oppositions to the plaintiff's two motions and five motions to dismiss (one for each defendant) (#s 47, 49, 51, 53, 54). In addition, defendants have filed a motion for sanctions (#59). Because all the pending motions preceding the motion to remand pertain to earlier versions of the complaint, the earlier motions (#s 16, 17, 18, 24, 25, 26, 35, 36) will be denied as moot.

Plaintiff has not filed reply memorandums in support of its motion to remand and motion for leave. Nor has plaintiff filed responses to the pending motions to dismiss or motion for sanctions. The time for doing so has passed, however, so the Court will proceed on the current record.

I. Factual Background and Procedural History

According to the complaint, plaintiff is a Missouri citizen who, on April 4, 2012, presented a written prescription for Lamotrigine 200mg pills to the defendant Supervalue Stores, Inc. (d/b/a Shop n Save Pharmacy) in Florrisant, Missouri. Defendant pharmacist Fred Tichy signed off on the prescription and provided plaintiff with a prescription bottle labeled Labetalol HCL 200 mg pills. Plaintiff ingested the pills and, on April 15 and 29, 2012, plaintiff experienced dizziness and fainted. Plaintiff fell to the ground both times as a result.

On May 1, 2012, plaintiff visited her family doctor complaining of severe back pain. On May 2, 2012, plaintiff received a refill prescription from the same Shop n Save Pharmacy. Defendant pharmacist Lindsay Reel signed off on a refill, and the prescription bottle contained Labetalol HCL 200mg pills. Plaintiff again experienced dizziness and fainted, falling to the ground a third time, on May 15, 2012

Plaintiff called Shop n Save Pharmacy to refill her prescription on May 29, 2012. Defendant pharmacist Lindsay Reel informed plaintiff that they had made a mistake in filling her prescription, and defendant Reel told plaintiff to stop taking the Labetalol medication.

Plaintiff continued to experience back pain. On or about June 14, 2012, Plaintiff went to the emergency room at DePaul Hospital. Plaintiff was diagnosed with a fracture of her tailbone.

Plaintiff filed this lawsuit in the Circuit Court of St. Louis City on July 19, 2103, naming as defendants Supervalue Stores, Inc. and Shop n Save Pharmacies, Inc.. Supervalue Stores does business as "Shop n Save" and is a citizen of Minnesota and Delaware. Supervalu Pharmacies, Inc. does business as "Shop n Save Pharmacies" and is a citizen of Minnesota. Defendants (then Supervalue Stores and Supervalue Pharmacies) removed to this Court citing diversity jurisdiction under 28 U.S.C. § 1332. The parties had complete diversity of citizenship because plaintiff is a citizen of Missouri and defendants are citizens of Minnesota and Delaware. And the $75, 000 amount in controversy requirement was met because plaintiff sought at least $50, 000 plus attorneys' fees and punitive damages in her complaint; defendants also noted that she had demanded $100, 000 to settle the case.

Plaintiff filed a Second Amended Complaint on May 15, 2014. The amended complaint included as defendants Shop n Save Warehouse Foods, Inc., Fred Tichy, and Lindsay Reel. Each of the new defendants is a citizen of Missouri.

II. Motion to Remand (#40)

Federal courts are courts of limited jurisdiction. Diversity jurisdiction, relied upon here by defendants, requires an amount in controversy greater than $75, 000 and complete diversity of citizenship among the litigants. 28 U.S.C. § 1332(a). In light of this Court's June 16, 2014 Order (#34), the plaintiff moved to remand her case back to the Circuit Court for the City of St. Louis. Plaintiff contends that this Court lacks diversity subject matter jurisdiction because (1) three of the defendants are Missouri citizens and thus share citizenship with plaintiff, and (2) plaintiff seeks damages of well under the $75, 000 amount-in-controversy requirement.

A. Amount in Controversy

With respect to the amount in controversy, defendants contend that plaintiff may not now attempt to deprive this Court of jurisdiction by amending her pleadings. Indeed, it has long been the case that the amount in controversy is determined at the time of removal, and events occurring afterwards to reduce the amount recoverable do not oust jurisdiction. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 290 (1938). A plaintiff may not simply amend her pleading to seek damages below the statutory threshold in order to secure remand. See, e.g., Johnson v. Texas Roadhouse Holdings, LLC, No. 4:10cv36 CDP, 2010 WL 4177655, *2 (E.D. Mo. Oct. 20, 2010). Here, plaintiff originally pleaded damages of $50, 000 for each of her two counts, and she also requested punitive damages and attorneys' fees, easily meeting the statutory threshold. Plaintiff also had ...


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