Judge rules Dollar General missed deadline in personal injury case

By Karen Kidd | Dec 14, 2018

U.S. District Court Judge Mark A. Kearney  

PHILADELPHIA — A personal injury case against Dolgencorp, parent company of Dollar General retail stores, is on its way back to a Pennsylvania state court after a federal judge ruled last month that the company's attempt to remove the case to U.S. district court took too long.

Dolgencorp had 30 days from the date it was served to have it removed, U.S. District Court Judge Mark Kearney, on the bench in the Pennsylvania Eastern District, said in his 12-page memorandum issued Nov. 29.

"Dolgencorp should have removed this action in September 2018 within 30 days of service of the complaint because it could have reasonably and intelligently concluded the amount in controversy exceeded $75,000. Because Dolgencorp failed to timely remove, we remand this case to state court in the accompanying order."

Under federal law, a defendant may remove a state action to federal jurisdiction so long as it can show the U.S. district court has "original jurisdiction" in a case. Dolgencorp moved to remove the case to the district court in Eastern Pennsylvania because Dolgencorp claims the amount in controversy far exceeds $75,000 and is between citizens of different states.

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Defendants in such cases have 30 days from the date of service to file for removal.

Andrew Bracken, a Pennsylvania resident, filed his personal injury suit against Dolgencorp in Philadelphia County Common Pleas Court this past August, claiming he was injured while unloading goods at a Dollar General store in Elmira, New York, according to the background portion of Kearney's memorandum. 

Last month, Dolgencorp moved for the case to be removed to federal court, claiming Bracken's complaint didn't provide a "good faith basis to determine an amount in controversy."

In its amended notice of removal, Dolgencorp claimed that Bracken stated in a case management conference memorandum filed with the common pleas court that he could document a demand that would total about $650,000. That amount, along with the diversity of all parties in the case, is enough to justify removal to federal court, Dolgencorp claims.

In his motion to send the case back to the common pleas court, Bracken claimed the removal to federal court was untimely because a far lower amount, $50,000, could have been "reasonably and intelligently concluded" when he filed the suit.

In his memorandum, Kearney said Bracken's description of his injuries in his original complaint could lead to a reasonable conclusion that the amount of damages could be high enough to warrant removal to federal court. Bracken's alleged injuries included "severe and permanent injuries," "internal injuries of an unknown nature," "severe aches, pains and mental anxiety and anguish and a severe shock to his entire nervous system" and that he would continue to incur expenses. 

"Resolving all doubts in favor of remand, we find these allegations sufficed to put more than $75,000 in controversy," the memorandum said.  

Kearney also noted that Dolgencorp filed its motion to remove the case to federal court on Nov. 1, 72 days after being served. Kearney also acknowledged that other courts have denied remand in similar cases but said he was "not persuaded by these cases in light of Dolgencorp's reasoning for its late removal."

"Dolgencorp also argues Mr. Bracken failed to plead a specific damage figure other than pleading an amount in excess of' $50,000," Kearney's memorandum said. "But under the Pennsylvania Rules of Civil Procedure, Mr. Bracken could only plead whether the amount in controversy exceeded ''the jurisdictional amount requiring arbitration referral by local rule,' which, in Philadelphia, is $50,000. Indeed, Pennsylvania's rules prohibited [Bracken] from being any more specific than he plead."

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