2019 WL 654312

United States District Court, N.D. West Virginia.
THE ESTATE OF LINDA FAY FRAIRE, deceased and TERESA ANDERSON, as next friend and on behalf of THE ESTATE OF LINDA FAY FRAIRE, deceased, Plaintiffs,
v.
TRANSAM TRUCKING, INC., a Kansas corporation and JOHN DOE and/or JANE DOE, driver, Defendants.
Civil Action No. 5:18CV177
|
Filed 02/15/2019

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO REMAND
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
*1 This civil action arises out of an accident that occurred in the parking lot of the TA Wheeling Travel Center in Wheeling, Ohio County, West Virginia, when a tractor trailer owned by defendant struck plaintiff’s vehicle. ECF No. 1-1 at 4. Plaintiff, The Estate of Linda Fay Fraire, deceased, and Teresa Anderson, as next friend and on behalf of The Estate of Linda Fay Fraire (hereinafter “plaintiff”), originally filed a complaint in the Circuit Court of Ohio County, West Virginia against defendant TransAm Trucking, Inc., (“TransAm”) and a John Doe/Jane Doe driver.

Defendant TransAm removed this action to this Court on October 23, 2018 pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. ECF No. 1. The plaintiff then filed a motion to remand, which is ripe for decision. ECF No. 6. For the following reasons, the plaintiff’s motion to remand is denied.

I. Background
In the notice of removal, the defendant asserts that this Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1332 because the parties are of diverse citizenship and the amount in controversy exceeds $75,000.00 exclusive of interests and costs based on lost wages and other damages in the form of medical bills. Further, defendant asserts that the notice of removal is timely because it is filed within one year after commencement of the action pursuant to 28 U.S.C. § 1446(c)(l) and within 30 days of receiving an “other paper” for purposes of determining whether the amount in controversy has been met and whether a case has become removable pursuant to 28 U.S.C. § 1446(c). ECF No. 1 at 2.

After removal to this Court, the plaintiff filed a motion to remand arguing that the defendant’s notice of removal is untimely and void of any actual calculations supporting the amount in controversy allegation. ECF No. 6. Plaintiff contends that defendant has had notice of this case by having had service of the complaint through the West Virginia Secretary of State’s office on April 19, 2018. Id. at 1. Plaintiff states that on October 23, 2018, the defendant untimely and improvidently removed this matter to federal court on the basis of a single speculatory document and, on the basis of this sole document, untimely asserted diversity jurisdiction. Id. Plaintiff also contends that defendant has failed to satisfy its burden of proving that the amount in controversy exceeds $75,000.00, and has failed to establish federal jurisdiction. ECF No. 7 at 11. Plaintiff contends that the removal fails for two primary reasons: first, because the removal occurred six months after the defendant received notice of this case, and second, because the “other paper” that defendant relies upon to support jurisdiction comes nowhere near satisfying defendant’s burden to establish jurisdiction. Plaintiff asserts that both the delay and the lack of factual basis in satisfying the amount in controversy requirement of $75,000.00, exclusive of interests and costs, support that this case should be remanded to state court where it was litigated for six months. Id. at 2.

*2 Defendant TransAm filed a response in opposition to the plaintiff’s motion to remand. ECF No. 9. In response, defendant states that instead of removing this matter prematurely, defendant waited until the amount in controversy presented was shown to exceed $75,000.00, exclusive of interests and costs, and then filed the removal documents within 30 days. Id. at 2-3. Defendant contends that based on plaintiff’s answers and responses to certain discovery requests detailed in the notice of removal, the plaintiff provided a total of $56,037.32 in medical bills, which she claims were incurred as a result of the incident. Id. at 3. After efforts to obtain more complete discovery, plaintiff provided a facsimile to defendant to address the deficiencies in her original responses titled “Historical Income Loss for Linda Fraire,” which detailed $67,727.22 in alleged lost wages. Id. Adding only the medical bills and this loss income calculation, defendant argues that plaintiff has now identified a total of $126,764.54 in potential calculable economic damages, with non-specified pain and suffering claimed on top of these amounts. Id. Defendant contends that once the lost income document was received, it was clear, by a preponderance of the evidence, that the amount in controversy exceeded $75,000.00, exclusive of interests and costs. Id.

No reply was filed.

II. Applicable Law
A defendant may remove a case from state court to federal court in instances where the federal court is able to exercise original jurisdiction over the matter. 28 U.S.C. § 1441. Federal courts have original jurisdiction over primarily two types of cases: (1) those involving federal questions under 28 U.S.C. § 1331, and (2) those involving citizens of different states where the amount in controversy exceeds $75,000.00, exclusive of interests and costs pursuant to 28 U.S.C. § 1332(a). However, if federal jurisdiction arises only by virtue of the parties’ diverse citizenship, such an action “shall be removable only if none of the … defendants is a citizen of the State in which such action is brought.” Tomlin v. Office of Law Enforcement Tech. Commercialization, Inc., 5:07CV42, 2007 WL 1376030, at *1 (N.D. W. Va. May 7, 2007). The party seeking removal bears the burden of establishing federal jurisdiction. See In re Blackwater Security Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006); Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction is strictly construed, and if federal jurisdiction is doubtful, the federal court must remand. Hartley v. CSX Transp., Inc., 187 F.3d 422 (4th Cir. 1999); Mulcahey, 29 F.3d at 151.

Further, the court is limited to a consideration of facts on the record at the time of removal. See Lowrey v. Alabama Power Co., 483 F.3d 1184, 1213–15 (11th Cir. 2007) (“In assessing whether removal was proper … the district court has before it only the limited universe of evidence available when the motion to remand is filed.”); O’Brien v. Quicken Loans, Inc., 5:10CV110, 2011 WL 2551163 (N.D. W. Va. June 27, 2011); Marshall v. Kimble, No. 5:10CV127, 2011 WL 43034, at *3 (N.D. W. Va. Jan. 6, 2011) (“The defendant’s removal cannot be based on speculation; rather, it must be based on facts as they exist at the time of removal.”); Fahnestock v. Cunningham, 5:10CV89, 2011 WL 1831596, at *2 (N.D. W. Va. May 12, 2011) (“The amount in controversy is determined by considering the judgment that would be entered if the plaintiff prevailed on the merits of his case as it stands at the time of removal.”) (internal citations omitted).

III. Discussion
There is no dispute that complete diversity exists. The only issues are whether the defendant’s notice of removal was timely and whether the amount in controversy requirement is satisfied.

First, plaintiff argues that the defendant’s notice of removal is untimely because removal occurred six months after the defendant received notice of this case. However, defendant argues that based on plaintiff’s answers and responses to certain discovery requests detailed in the notice of removal, plaintiff provided a total of $56,037.32 in medical bills, which she claims were incurred as a result of the incident. Defendant asserts that the plaintiff’s facsimile of a document on October 5, 2018, titled “Historical Income Loss for Linda Fraire,” which detailed $67,727.22 in alleged lost wages, was defendant’s first notice that the amount in controversy exceeded $75,000.00. Thus, defendant contends that the notice of removal, filed within 30 days of this document, was timely.
*3 The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b)(1).
[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed 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). The only exception to § 1446(b)(3) is that a case may not be removed on the basis of diversity jurisdiction under 28 U.S.C. § 1332 “more than one year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” 28 U.S.C. § 1446(c).

The United States Court of Appeals for the Fourth Circuit has adopted the following test for determining when a defendant could first ascertain that a case is removable:
[W]e will not require courts to inquire into the subjective knowledge of the defendant, an inquiry that could degenerate into a mini-trial regarding who knew what and when. Rather, we will allow the court to rely on the face of the initial pleading and on the documents exchanged in the case by the parties to determine when the defendant had notice of the grounds for removal, requiring that those grounds be apparent within the four corners of the initial pleading or subsequent paper.
Lovern v. General Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997).

Based on the record before this Court, the plaintiff’s motion to remand must be denied. The plaintiff fails to demonstrate that the defendant’s notice of removal was untimely. This Court finds that the amount in controversy was not readily ascertainable before the plaintiff provided the facsimile containing the lost income figures. Here, the amount in controversy was not apparent from the four corners of the complaint. Further, the amount in controversy requirement was not satisfied when defendant learned that plaintiff Fraire’s medical bills at issue totaled $56,037.62. This Court agrees with defendant that the amount in controversy did not become apparent until the document titled “Historical Income Loss for Linda Fraire,” which detailed $67,727.22 in alleged lost wages, was provided to the defendant by the plaintiff on October 5, 2018. Thus, this Court agrees with defendant that the reasons for the timing and the justifications for the procedure followed in removing this action were clearly illustrated in defendant’s notice of removal. Ultimately, this matter was timely removed within one year after commencement of the action pursuant to 28 U.S.C. § 1446(c)(l) and within 30 days of receiving an “other paper” for purposes of determining whether the amount in controversy has been met and whether the case has become removable pursuant to 28 U.S.C. § 1446(c).

Second, as to whether the amount in controversy requirement is satisfied, this Court finds that adding only the medical bills and the lost income calculation, as defendant contends, equals a total of $126,764.54 in potential calculable economic damages, with non-specified pain and suffering claimed on top of these amounts. As stated earlier, the amount in controversy requirement cannot be based on speculation or “what ifs” that may occur. Rather, the court is limited to a consideration of facts on the record at the time of removal. See Lowrey, 483 F.3d at 1213–15. Before the plaintiff’s medical bills and lost income document, the amount of recoverable damages was unknown and speculative at best. Speculation regarding the amount in controversy requirement fails to satisfy the burden that the removing party bears. See In re Blackwater Security Consulting, LLC, 460 F.3d at 583. Because the defendant would have only been able to speculate as to what the amount of damages might have been based on the complaint alone, and because the medical bills alone did not satisfy the amount in controversy requirement, removal would have been improper before the document titled “Historical Income Loss for Linda Fraire,” which detailed $67,727.22 in alleged lost wages, was provided.

*4 Lastly, to the extent that plaintiff argues that the amounts in the loss income sheet were not actually to plaintiff, and that the document titled “Historical Income Loss for Linda Fraire” is “speculative” because Fraire received $4,468.62 in disability benefits during the time of her recovery, this Court finds that plaintiff’s lost income damages is clearly an amount in controversy, in addition to the plaintiff’s $56,037.32 in medical bills, for purposes of determining whether diversity jurisdiction exists.

Upon review, this Court finds that the defendant’s notice of removal was timely and proper and the amount in controversy requirement is satisfied.

IV. Conclusion
For the above reasons, this Court finds that it has subject matter jurisdiction in this civil action under 28 U.S.C. § 1332(a). Accordingly, the plaintiff’s motion to remand (ECF No. 6) is DENIED.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to counsel of record herein.

All Citations
Slip Copy, 2019 WL 654312

2019 WL 573435

United States District Court, W.D. Missouri, Western Division.
MARIE L. MITCHELL, et al., Plaintiffs,
v.
GARY MIMS, et al., Defendants.
No. 4:18-cv-00515-DGK
|
February 12, 2019

ORDER ON DISCOVERY DISPUTE
GREG KAYS, JUDGE UNITED STATES DISTRICT COURT
*1 This case arises out of a motor vehicle collision in Boone County, Missouri. Plaintiffs allege Defendant Gary Mims (“Mims”), an employee of Defendants Hogan Dedicated Services, LLC, and Hogan Transports, Inc., (“Hogan Defendants”) negligently drove his tractor-trailer combination into the rear of Plaintiffs’ vehicle on I-70 highway. Plaintiffs claim the Hogan Defendants are vicariously liable for the acts of Mims, and that they negligently hired and retained Mims as a driver. Now before the Court is a discovery dispute regarding the disclosure of Mims’ medical records, employment records, and driving records (Docs. 50, 55, 59, 61).

Background
Plaintiffs’ complaint alleges that on October 27, 2017, Mims negligently drove a commercial vehicle into the back of their vehicle, causing injuries. Plaintiffs also allege the Hogan Defendants negligently hired, retained, and monitored Mims and negligently entrusted him with the commercial vehicle. Mims timely answered and raised affirmative defenses, including contributory negligence.

As part of discovery, Plaintiffs served interrogatories and requests for production on Defendants. Defendants then served Objections and Responses on Plaintiffs. Defendants did not sign the Objections and Responses under oath, and their responses to Plaintiffs’ interrogatories simply referred Plaintiffs to Mims’ deposition testimony or Defendants’ Rule 26(a)(1) initial disclosures. Recognizing the inadequacy of these responses, Defendants agreed to sign their responses under oath, withdraw their references to other documents, and supplement all but one response:1 Mims did not agree to provide Plaintiffs with a list of all the medical professionals that saw or treated him the five years preceding the accident.

Then, on January 15, 2019, Plaintiffs served fifteen subpoenas on Mims’ former employers and medical providers, as well as one subpoena on the Missouri Driver’s License Record Center. Defendants do not dispute that Mims’ driving records are discoverable, but they contend Plaintiffs request is too broad. Defendants also claim the other fifteen subpoenas should be quashed because they contain privileged information.

The parties met and conferred but could not reach an agreement related to the disclosure of the medical and employment records or the scope of the driver’s license inquiry. The parties have now submitted their briefing,2 and the issues are ripe for ruling.

Standard
A district court has wide discretion in handling pretrial discovery matters. Chavis Van & Storage of Myrtle Beach, Inc. v. United Van Lines, LLC, 784 F.3d 1183, 1198 (8th Cir. 2015). A party generally may obtain discovery regarding any nonprivileged matter that is relevant to any claim or defense if it is proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). Proportionality is weighed by considering “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. The rule requires a party objecting to discovery to show specifically how each discovery request is irrelevant or otherwise not subject to discovery. See id. at 33(b)(4), 34(b).

*2 In a diversity case such as this one, the Court applies state privilege law, not federal law. Baker v. Gen. Motors Corp., 209 F.3d 1051, 1053 (8th Cir. 2000)

Discussion
First, the Court must address whether Mims has standing to challenge subpoenas issued to third parties. Under Rule 45, a court “must quash or modify a subpoena that … requires disclosure of privileged or other protected matter, if no exception or waiver applies.” Fed. R. Civ. P. 45(d)(3)(A)(iii). Parties have standing to object to subpoenas under Rule 45 when they have “some personal right or privilege with regard to the documents sought.” 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2459 (3d ed.); e.g., Enviropak Corp. v. Zenfinity Capital, LLC, 2014 WL 4715384, at *4 (E.D. Mo. Sept. 22, 2014). Here, Mims has a personal right to his medical, employment, and driving records. Thus, he has the ability to object to the subpoenas seeking these records. The Court now turns to the substance of the parties’ disputes.

Although both Plaintiffs and Defendants have discovery issues, all disputes relate to three main issues: 1) Mims’ medical records, 2) Mims’ employment records, and 3) Mims’ driving record. The Court addresses each issue in turn.

I. Mims’ medical records are privileged.
As to Mims’ medical records, Plaintiffs request this Court compel Mims to list his medical providers for the last five years, while Defendants request the Court quash the subpoenas issued to Mims’ medical providers.

Missouri recognizes a physician-patient privilege that applies to medical records and all aspects of discovery. State ex rel. Dean v. Cunningham, 182 S.W.3d 561, 563 (Mo. 2006). Where the defendant has not placed his medical condition in controversy, the physician-patient privilege is not waived. Cerro Gordo Charity v. Fireman’s Fund American Life Ins. Co., 819 F.2d 1471, 1477-80 (8th Cir. 1987).

Mims alleges his medical records are protected by the physician-patient privilege, and because he has not put his medical condition at issue, the privilege is not waived. Plaintiffs acknowledge medical records are generally privileged, but argue Mims has put his medical condition at issue by making contradictory statements regarding whether he has undergone a sleep study, by exhibiting symptoms of a disqualifying condition, and by answering questions regarding his medical history.

Mims has not put his medical condition at issue simply by responding to deposition questions or invoking contributory negligence. See State ex rel. Hayter v. Griffin, 785 S.W.2d 590, 592 (Mo. Ct. App. 1990) (finding the defendant did not put his medical condition at issue by responding to deposition questions and invoking comparative negligence as a defense); accord State ex rel. Stinson v. House, 316 S.W.3d 915, 919 (Mo. 2010). And the two cases Plaintiffs cite do not support their argument that Mims has waived his privilege or put his medical condition at issue. See Garrett v. Albright, No. 2:06-CV-00785, 2008 WL 795627, at *2 (W.D. Mo. Mar. 21, 2008) (denying the defendant’s motion to dismiss plaintiff’s claims that the defendant driver was driving while impaired within the meaning of 49 C.F.R. § 392.3, the employers should be vicariously liable, and the employers breached various duties to prevent an unsafe driver from causing the collision); see also Parker v. Crete Carrier Corp., 158 F. Supp. 3d 813 (Neb. 2016) (finding that an employer did not violate the ADA when it required drivers with over 33 BMI to undergo a sleep study). Thus, Mims’ medical records are protected by the physician-patient privilege, and Plaintiffs cannot, by virtue of their own claims, waive the privilege on his behalf. Mims does not assert damages or seek recovery for any physical or mental injuries. Nor has Mims claimed that he suffered a lapse of consciousness or other medical condition at the time of the accident. Plaintiffs also do not identify any specific medical issue Mims suffered from but speculate that he could have sleep apnea. This speculation is not grounds to go on a “fishing expedition” through Mims’ entire medical history.

*3 That said, Mims has made contradictory statements as to whether he had a sleep study prior to 2018. In July 2017, Mims indicated he had previously underwent a sleep study (Doc. 53-9), but at his deposition in January 2019, he testified the first sleep study he underwent was in December 2018 (Doc. 59-2 at 1-2). These inconsistencies put at issue Mims’ prior history of sleep apnea, which is relevant to determining whether Mims was drowsy while driving. Thus, the Court will permit some limited discovery into Mims’ medical history. Plaintiffs are entitled to discover whether Mims has had a sleep study within the five years preceding the accident, and if he has, they are entitled to the results of those studies.

Plaintiffs are also entitled to any medical examinations that Mims underwent for purposes of being medically qualified under the Federal Motor Care Safety Act. “The physician-patient privilege extends only to information acquired by the physician for the purposes of prescribing and treatment.” Griffin, 785 S.W.2d at 595. Thus, any attempt to be certified as medically qualified under the Federal Motor Care Safety Act is discoverable. Mims must disclose to Plaintiffs any medical professional who examined him for the purpose of obtaining his commercial driver’s license within five years preceding the accident.

II. Plaintiffs must narrow the time and scope of their request for employment records.
Mims claims his employment records are not relevant, and even if they were relevant, they are privileged. Plaintiffs respond that his employment records are relevant to whether he was unfit to be a commercial driver and whether the Hogan Defendants were aware he was a risk.

Missouri recognizes a right of privacy in personnel records that is “fundamental” and should not be lightly disregarded or dismissed. State ex rel. Delmar Gardens North Operating LLC v. Gaertner, 239 S.W.3d 608, 611-612 (Mo. 2007). This does not mean that employment records are never discoverable; where the information is sufficiently related to the issues in the pleadings, employment records are discoverable. Id. A request for an entire personnel file, however, is overbroad. Id.

Here, Plaintiffs have requested from Mims’ former employers the “complete and unedited employment file for Gary Mims including but not limited to the complete employment file, applications for employment, medical records, DOT physical and accompanying documents, driver’s file, medical file and termination/separation records” (Doc. 42). Plaintiffs have not otherwise limited their requests in time or scope.

Plaintiffs are not entitled to Mims’ “complete employment file.” See State ex rel. Madlock v. O’Malley, 8 S.W.3d 890, 891 (Mo. banc 1999) (finding that a request for employment records that is not limited in time and scope should be denied); accord, Crowe v. Booker Transp. Servs., Inc., No. 4:11-CV-690-FJG, 2013 WL 294184, at *3-4 (W.D. Mo. Jan. 30, 2013) (accord). But under the broad construction of relevancy in the discovery context, the Hogan Defendant’s knowledge and handling of Mims’ prior employment history is relevant to its hiring and retaining Mims. Thus, the following are discoverable: Mims’ applications for employment, medical records, DOT physical and accompanying documents, driver’s file, medical file, and termination/separation records.

The Court is, however, concerned that some of Mims’ prior employers may be too far removed in time to be relevant and proportional to the needs of Plaintiffs’ claims. Therefore, the Court limits discovery into Mims’ prior employment records to the last five years prior to his employment by the Hogan Defendants.

III. Plaintiffs are entitled to Mims’ driving record for the last five years.
*4 Finally, Mims requests the Court limit the subpoena to the Missouri Driver’s License Record Center to his commercial driving records from the five years preceding the accident because records older than five years and unrelated to his commercial driver’s license have no relevance to the issues in this case. Plaintiffs argue Mims’ entire driving record is relevant to their claims and for impeachment.

Here, Mims’ driving records—both commercial and personal—are not privileged and certainly meet the low threshold for relevance; they are reasonably calculated to lead to the discovery of information relevant to the issue of liability. See Fed. R. Civ. P. 26(b)(1). Nevertheless, the older the driving records, the less relevance they have to the Defendants’ conduct related to the 2017 accident. Thus, the Court limits Plaintiffs’ discovery of Mims’ driving records—both commercial and personal—to the five years preceding the accident.

Conclusion
Accordingly, the Court ORDERS:
• Mims shall disclose to Plaintiffs any medical professional who examined him for the purpose of obtaining his commercial driver’s license in the five years preceding the accident. He shall also disclose any sleep studies performed in the five years preceding the accident.
• Plaintiffs’ subpoenas to Mims’ medical providers are quashed to the extent they were served on Mims’ treatment doctors. Plaintiffs are entitled to discover any sleep studies Mims underwent within the five years preceding the accident and any medical examinations that Mims underwent within five years preceding the accident for purposes of being medically qualified under the Federal Motor Care Safety Act.
• Plaintiffs’ subpoenas to Mims’ former employers are limited to employment records related to applications for employment, medical records, DOT physical and accompanying documents, driver’s file, medical file, and termination/separation records for the five years prior to his employment by the Hogan Defendants.
• Plaintiffs’ subpoenas to the Missouri Driver’s License Record Center are limited to the five years preceding the accident.

To the extent that Mims is concerned with privacy, this Court has entered a Protective Order (Doc. 44) that Plaintiffs may use to protect Mims’ privacy. And, of course, just because any of the aforementioned documents are discoverable does not mean they will be admissible at trial. The Court defers ruling on their admissibility.

IT IS SO ORDERED.

All Citations
Slip Copy, 2019 WL 573435

Footnotes

1

This is hardly a concession. It is well established that a response to an interrogatory must be made under oath and “should be complete in itself and should not refer to other documents.” Budget Rent–A–Car of Mo., Inc. v. Hertz Corp., 55 F.R.D. 354, 356 (W.D. Mo. 1972).

2

After reviewing the parties briefs, the Court canceled the teleconference, determining argument was not needed to resolve this dispute.