EAST ST. LOUIS – St. Clair County resident Toni Perrin concealed the value of a suit against retailer Dillard’s in bad faith to defeat federal jurisdiction, U.S. District Judge David Herndon ruled on July 13.

He denied a motion to remand Perrin’s personal injury suit to St. Clair County circuit court, where lawyer Lanny Darr of Alton filed it in 2015.

Herndon granted a bad faith exception to a rule that prohibits removal more than a year after commencement of an action in state court.

He wrote that Perrin deliberately failed to disclose an amount in controversy in excess of the $75,000 requirement for federal diversity jurisdiction.

Perrin’s suit fits the other requirement, a difference in state citizenships.

Herndon wrote that the history of the case lulled Dillard’s into believing the jurisdictional amount had not been met.

Perrin claims she slipped on vomit and fell at Dillard’s in St. Clair Square, in 2013.

She filed an arbitration proceeding in St. Clair County circuit court in 2015, seeking $50,000 plus costs.

Dillard’s served an interrogatory for the dollar amount of damages.

Darr answered,“Plaintiff’s suit was filed in AR division which is for claims of $50,000 orless.”

At an arbitration hearing before Associate Judge Heinz Rudolf in December 2015, Perrin testified that back surgery might be beneficial.

Rudolf entered anaward, which Perrin rejected.

She moved for transfer to the law docket, and Rudolf granted it in January 2016.

Dillard’s moved for summary judgment, and Associate Judge Christopher Kolker denied it this Jan.30.

He set a bench trialfor April 19.

On Jan. 31, Darr served a demand for $350,000.

On Feb. 23, Dillard counsel David Dimmitt of Maplewood, Mo., removed the suit on the basis of diversity jurisdiction.

On March 13, Darr moved to remand the action to St. Clair County.

He argued that Dillard’s knew the claim exceeded $50,000 after arbitration, when Perrin moved for transfer to the law docket.

He argued that a deposition of surgeon Thomas Lee also put Dillard’s on notice.

“Under any theory of removal, the defendant’s actions are too late to achieve federal court jurisdiction,” Darr wrote.

He wrote that seeking removal on the eve of trial was the type of activity that U.S. Code was intended to prevent.

He wrote that Dillard’s conduct warranted an award of fees and expenses.

On April 12, Dimmitt wrote that Perrin knew she would need back surgery in 2015, but didn’t communicate that to Dillard’s.

He wrote that bad faith doesn’t have to amount to malicious or unsavory conduct.

He wrote that it exists,“if the plaintiff deliberately failed to disclose the actual amount in controversy to prevent removal.”

“Moreover, plaintiff did not testify at her arbitration proceeding about the need for back surgery.”

His argument convinced Herndon, who held that the motion for transfer from arbitration to the law docket did not put Dillard’s on notice.

“Had the motion to transfer been accompanied with an update in discovery a contrary conclusion may result.”

He found no affirmative conclusion that surgery was necessary in a note that surgeon Lee signed last year.

“In fact, the note indicated epidural steroids were effective in relieving her pain; she experienced no acute distress, good range of lumbo sacral spinemotion, and normal gait,” Herndon wrote. 

He wrote that most importantly, Lee estimated she would need six steroid injections over the next two years. 

Herndon concluded that convoluted medical records and failure to supplement interrogatory responses satisfied the bad faith exception.

He has set trial next May.    

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