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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

RUSHING et al v. TARGET CORPORATION OF MINNESOTA

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
2:15-cv-02239 Search Pacer
ACE Group party(s): 
Opposing Party: 
Joyce Patrick Rushing
Court Type: 
Federal
US District Court: 
Eastern District of Louisiana
Date Filed: 
Jun 19 2015

NOTICE OF REMOVAL
NOW INTO COURT, through undersigned counsel comes defendants Target

Corporation and/or Target Corporation of Minnesota, (hereafter sometimes referred to as
“Target”), ACE American Insurance Company, (hereafter sometimes referred to as “ACE”) and
Darrell Mitchell, who hereby request this Honorable Court to remove that certain matter styled,
“Joyce Patrick Rushing versus Target Corporation of Minnesota, Target Corporation, ACE
American Insurance Company and Mr. Darryl” suit number 14-0003578, from the docket of the
21st Judicial District Court in and for the Parish of Tangipahoa, State of Louisiana, (hereinafter
sometimes referred to as the “state court proceeding”), to the United States District Court for the
Eastern District of Louisiana, on the following grounds, to-wit:
1.
On or about December 3, 2014, plaintiff filed a petition for damages against named
defendants Target Corporation and/or Target Corporation of Minnesota, ACE American
Insurance Company, and Mr. Darryl. Plaintiff Joyce Patrick Rushing alleged that she received
personal injuries as a result of being stuck by a motorized shopping cart on or about December 5,
2013 at a Target store location in Hammond, Louisiana.
2.
Plaintiff alleges that she is a resident and domiciliary of the Parish of Tangipahoa, State
of Louisiana. Therefore, plaintiff is a citizen of the State of Louisiana.
3.
Defendants Target Corporation, and/or Target Corporation of Minnesota, are
corporations organized under the laws of the State of Minnesota with their principal place of
business in Minneapolis, Minnesota. Therefore, defendants are citizens of the State of
Minnesota.
4.
Defendant ACE American Insurance Company is a foreign insurance company organized
under the laws of the State of Pennsylvania with its principal place of business in Philadelphia,
Pennsylvania. Therefore, defendant is a citizen of the State of Philadelphia.
5.
In her petition, plaintiff also names as an additional defendant “Mr. Darryl” who is
alleged to be the store manager and who is alleged to be of the full age of majority and domiciled
in the Parish of Tangipahoa, State of Louisiana, and an employee of Target.
6.
The store manger at the time of the incident was Darrell Mitchell, who has filed
exceptions of insufficient sendee against him. Mr. Mitchell is currently a citizen of the State of
Georgia. Plaintiff has no arguable claim under Louisiana Law for recovery against defendant
Mr. Darryl or Darrell Mitchell, and has joined him as a defendant in this matter in order to defeat
diversity jurisdiction and keep this matter in state court.
7.
Because plaintiff has no arguable or reasonable basis on which to state a cause of action
against defendant Mr. Darryl or Darrell Mitchell, the joining of this defendant and the alleged
lack of diversity caused by his presence does not bar removal to this court.
8.
Plaintiff and defendants Target and ACE are citizens of different states.

1. REMOVAL IS PROPER BECAUSE THIS COURT HAS SUBJECT MATTER
JURISDICTION PRUSUANT TO 28 U.S.C. $ 1332.

9.
28 U.S.C. § 1332 provides Federal District courts with concurrent original jurisdiction in
cases “where the amount in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between- citizens of different States.”
A. THE AMOUNT IN CONTROVERSY EXCEEDS $75,000.00.
10.
The petition for damages in the state court proceeding did not expressly set out a specific
amount of damages which the plaintiffs were seeking in the state court proceeding, i.e., the
amount in controversy. The petition only made generic allegations of damages that Joyce
Patrick Rushing sustained, and that her damages included past, present, and future pain and
Case 2:15-cv-02239 Document 1 Filed 06/19/15 Page 4 of 13
suffering and mental anguish; loss of enjoyment of life; disability; medical expenses; and future
medical expenses.
11.
The allegations of the state court petition were not such that it was readily ascertainable
that the action was removable at the time of its filing. Since the filing of the petition for
damages, and within the last 30 days, defendants have received “other paper(s)” which evidence
that the amount which plaintiffs will seek in the state court proceeding, i.e., the amount in
controversy, will exceed $75,000.00, exclusive of interest and costs. Defendants are informed
and believe that the amount in controversy for the matter will exceed $75,000 exclusive of
interest and costs.
12.
By email dated May 16, 2015, defendants received the discovery responses of plaintiff.
In those discovery responses, plaintiff claimed injuries to her back, legs, and arms. At the same
time, plaintiff identified a pending lawsuit against Wal-Mart Stores, Inc. for an incident
occurring on January 18,2014, about 6 weeks after her Target incident, alleging cervical injuries.
Identified medical expenses for both claims were $32,443.67 and plaintiff treated with the same
neurologist since January 23, 2014 for both claims. With regard to the Target alleged injuries,
plaintiff complained of lower back pain with radiation into her legs. She was noted to be using a
walker and limping. In April of 2014, she complained of right shoulder pain that she believes
was related to being run over by a cart from December 5, 2013. Arthropathy and joint pain to
her shoulder was added to her problem list and an injection was recommended and performed on
Case 2:15-cv-02239 Document 1 Filed 06/19/15 Page 5 of 13
May 21, 2014. Plaintiff returned on June 18, 2014 complaining of spasms in her legs. After an
MRI was performed plaintiff received bilateral L2-3 injections on July 14, 2014. Lumbar Medial
branch blocks were then performed on August 8, 2014. Plaintiff returned on September 14, 2014
claiming that the lumbar block provided no relief. She was given treatment options and chose to
under go use of trial IT pump.
13.
The discovery responses did not provide a clear rendition of the amount plaintiff would
seek in recovery against Target, i.e., the amount in controversy. As such, upon receipt of the
discovery responses outlining plaintiff alleged injuries. Defendants submitted a Request for
Admissions to Plaintiff requesting that plaintiff admit that Joyce Patrick Rushing’s alleged
damages from the Target incident did not exceed $75,000, exclusive of interest and costs. On
May 27, 2014 plaintiff responded to the Request for Admissions denying that Joyce Patrick
Rushing’s damages did not exceed $75,000 exclusive of interest and costs.
14.
The state court petition is subject to amendment upon motion of plaintiff at any time,
including the ability to assert damages greater than $75,000, exclusive of interest and costs.
Plaintiffs petition fails to provide a general allegation the claims exceed or is less than the
amount necessary to provide for lack of jurisdiction of federal court due to insufficiency of
damages. La. C.C. P. art. 893.
15.
Nonetheless, based upon plaintiffs Response to the Request for Admissions, which
supplemented plaintiffs discovery responses in the state court proceeding, Defendants are
informed and believes that the amount which plaintiff will seek in the state court proceeding, i.e.,
the amount in controversy, will exceed $75,000, exclusive of interest and costs for the claims of
Joyce Patrick Rushing. While defendants admit no liability, nor any element of damages,
defendants have met their burden of showing that the amount in controversy is in excess of
SEVENTY-FIVE THOUSAND AND NO/lOO ($75,000.00) DOLLARS, exclusive of interest
and costs.

B. COMPLETE DIVERSITY

16.
Defendants Target and Ace are foreign corporations organized under the laws of the
States of Minnesota and Pennsylvania, respectively, which their principal places of business in
Minneapolis and Philadelphia, respectively.
17.
Defendant Mr. Darryl or Darrell Mitchell is a current resident of and domiciled in the
state of Georgia. Regardless, plaintiff has no arguable claim against this defendant and has
joined him as defendant in this matter in order to defeat diversity jurisdiction and keep this
matter in state court. Because plaintiff has no arguable or reasonable basis on which to state a
cause of action against him, the joining of this defendant and any alleged lack of diversity caused
by his presence does not bar removal to this court.
18.
Plaintiff is a resident of and domiciled in the Parish of Tangipahoa, State of Louisiana.
19.
Accordingly, there is complete diversity of citizenship between the plaintiff and the only
non-fraudulent defendants.
20.
This is a civil action over which the United States District Court for the Eastern District
of Louisiana has concurrent original jurisdiction under the provisions of 28 U.S.C. § 1332, et
seq., as the amount in controversy exceeds SEVENTY-FIVE THOUSAND AND NO/100
($75,000.00) DOLLARS, exclusive of interest and costs, and complete diversity exists between
all adverse parties.

n. DEFENDANTS HAVE STATISFIED THE PROCEDURAL REQUIREMENTS
FOR REMOVAL

21.
Defendants Target Corporation, and/or Target Corporation of Minnesota, were served
with the Petition for Damages through their registered agent for service of process on December
15, 2014. Defendant ACE American Insurance Company was served with the Petition for
Damages on December 17, 2014. Defendant Mr. Darryl or Darrell Mitchell was purportedly
served with the Petition for Damages on December 5, 2014. All defendants were served with
plaintiffs First Amending and Supplemental Petition for Damages on March 27, 2015. An
exception of insufficient service is currently pending in state court on Darrell Mitchell’s behalf.
22.
The original Petition for Damages, nor the First Amending and Supplemental Petition for
Damages did not allege damages sufficient to where it was readily ascertainable that the case is
on which was removable. The original petition and amending and supplemental petitions only
made general allegations of damages without information as to medical expenses or treatment
rendered. Those generic allegations did not allow for removal at the time of service of same
upon defendants.
23.
Plaintiff’s subsequent Responses to the Request for Admissions constitutes “other
papers” under 28 U.S.C. §1446(b) (3) from which it may first be ascertained that the case is one
which is or has become removable. The Responses to the Request for Admissions was received
on May 27, 2015. This Notice of Removal is being filed within thirty (30) days after first receipt
by defendants of a copy of another paper/pleading from which it may first be ascertained that the
case is one which is or has become removable. This notice of removal is further being filed
within one year of commencement of the action. Therefore, this Notice of Removal is timely
under 28 U.S.C. § 1446(b)(3) and 28 U.S.C. § 1446(c).
24.
Jurisdiction is founded in the existence of diversity jurisdiction under 28 U.S.C. § 1332,
which grants federal courts concurrent original jurisdiction over claims where the matter in
controversy exceeds the sum or value of SEVENTY-FIVE THOUSAND AND NO/100
($75,000.00) DOLLARS, exclusive of interest and costs, and is between citizens of different
states.
25.
The 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana, is
located within the Eastern District of Louisiana pursuant to 28 U.S.C. § 98(a). Therefore, venue
is proper in accordance with 28 U.S.C. § 1441(a).
26.
No previous application has been made by defendants in this case for the relief requested
herein.
27.
Defendants wish to remove the claims which have been asserted by plaintiff in the state
court proceeding to the United States District Court for the Eastern District of Louisiana. The
claims that plaintiff, Joyce Patrick Rushing, now asserted in the state court proceeding are claims
between citizens of different states involving more than $75,000, exclusive of interest and costs.
The claims which plaintiff, Joyce Patrick Rushing, has asserted in the state court proceeding,
therefore, fall within the jurisdiction of the United States District Court and may properly be
removed to the United States District Court for the Eastern District of Louisiana. See, 28 U.S.C.
§ 1332,28 U.S.C. §§ 1441 & 1446-1451.
28.
Target Corporation and/or Target Corporation of Minnesota, ACE American Insurance
Company, and Darrell Mitchell, confer in removal of the matter and respectfully requests that
this Notice of Removal be filed into the record of the United States District Court for the Eastern
District of Louisiana, effecting a removal of that certain matter styled, “Joyce Patrick Rushing
versus Target Corporation of Minnesota, Target Corporation, ACE American Insurance
Company and Mr. Darryl” suit number 14-0003578, from the docket of the 21st Judicial District
Court in and for the Parish of Tangipahoa, State of Louisiana.
29.
Pursuant to 28 U.S.C. § 1446(a), a copy of the Petition, the First Amending and
Supplement Petition, The Request for Admissions, and Responses to Request for Admissions are
attached hereto as exhibits A, B, C, and D, respectively. Pursuant to 28 U.S.C. § 1446(d), a copy
of this Notice of Removal is being served upon counsel for Joyce Patrick Rushing, and a copy is
being filed with the Clerk of Court for the 21st Judicial District Court for the Parish of
Tangipahoa, State of Louisiana.
30.
Defendants are entitled to and request trial by jury of all issues herein.

WHEREFORE, defendants, Target Corporation and/or Target Corporation of Minnesota,
ACE American Insurance Company, and Mr. Darryl/Darrell Mitchell, hereby removes this action
from the 21st Judicial District Court for the Parish of Tangipahoa, State of Louisiana, to the
docket of the United States District Court for the Eastern District of Louisiana.
 

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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