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Defense lawyers take note: When it comes to removal petitions, you can put away your calculators because you’re not allowed to add up the claims of multiple plaintiffs to meet the federal minimum — even if they’re married. In Sdregas v. The Home Depot Inc., U.S. District Judge Bruce W. Kauffman held that when a married couple files a slip-and-fall lawsuit, with the injured spouse alleging negligence and the other suing for loss of consortium — each demanding in excess of $50,000 — the defendant cannot remove the case to federal court since the two claims cannot be combined to meet the $75,000 minimum for federal diversity jurisdiction. As a result, Kauffman, of the Eastern District of Pennsylvania, remanded the suit to the Philadelphia Court of Common Pleas. According to the suit, Afroditi Sdregas was walking in a Home Depot store in Bucks County, Pa., when a screw that had been left on the floor became embedded in the sole of her shoe, causing her to slip and fall on the concrete floor. Attorney Thomas R. Hurd of Philadelphia-based Monteverde, McAlee, Fitzpatrick, Tanker & Hurd filed the suit, alleging that Sdregas suffered serious injuries, including a concussion, back pain, dizziness, depression and incontinence. Her husband, Demitros Sdregas, joined the suit with a loss of consortium claim. Home Depot’s lawyers, Robert B. Lawler and Renee Berger of Philadelphia’s Wilbraham, Lawler & Buba, removed the suit to U.S. District Court. When Hurd moved for a remand to state court, the defense lawyers argued that federal diversity jurisdiction was met because the amount in controversy was clearly in excess of $75,000. In their brief, the defense team argued that the nature of Afroditi Sdregas’ injuries and the size of her medical bills proved that while her lawsuit demanded “in excess of $50,000,” the claim was certain to be worth more than $75,000. As proof, the defense team pointed to a bill for nearly $15,000 for an emergency room visit and a five-day hospital stay. They also noted that Sdregas continued to seek treatment after leaving the hospital — visiting an ophthalmologist, a neuropsychologist, a psychiatrist and her family doctor — and that she is 65 and has a history of diabetes. But Judge Kauffman found that the defense lawyers had no proof of the costs of the post-hospital treatment since they hadn’t submitted records of the actual expenses. Likewise, Kauffman found the defense had no evidence of the value of Demitros Sdregas’ consortium claim. And while husband and wife were each seeking in excess of $50,000, Kauffman found that the two claims “cannot be aggregated for purposes of meeting the amount in controversy requirement.” Kauffman cited the 3rd Circuit’s 1999 decision in Meritcare Inc. v. St. Paul Mercury Insurance Co. which held that “the rule is long-standing and seemingly well-settled … that the claims of several plaintiffs, if they are separate and distinct, cannot be aggregated for purposes of determining the amount in controversy. The rule applies even if the plaintiffs have a community of interest, but fall short of establishing a single title or right in which they have a common and undivided interest.” Under Pennsylvania law, Kauffman said, “a loss of consortium claim, even though it is derivative of an injured spouse’s personal injury claim, is a separate and distinct cause of action.” The federal removal statute, Kauffman said, puts the burden on the removing party to prove the amount in controversy, and case law makes clear that judges should strictly construe the statute and resolve all doubts in favor of remand. In a footnote, Kauffman pointed out that his colleagues are all over the map on the issue of the standard of proof to be used in deciding such questions. He found that trial judges within the 3rd Circuit have variously defined the standard as “legal certainty,” “preponderance of the evidence” and “reasonable probability.” In Meritcare, Kauffman said, the 3rd Circuit “appears to have used the legal certainty standard.” Under the legal certainty test, the trial court should remand “only if the court determines that a reasonable jury could not return a verdict in excess of the jurisdictional threshold.” Kauffman closed the footnote by saying that even under the legal certainty test, Home Depot had not met its burden. In his final paragraphs, Kauffman rejected Hurd’s petition for reimbursement of costs and expenses, including attorney fees, incurred as a result of the removal proceedings. Since Home Depot’s removal petition was premised on the demand of each plaintiff for in excess of $50,000, Kauffman found that the motion was not “frivolous” nor “entirely unfounded.”

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