Counts v. Spar Marketing Force, Inc.
8:21-cv-00338
| D. Neb. | Sep 22, 2021Background
- Plaintiff Octavius Counts, a non-prisoner independent contractor, alleges he was seriously injured on July 12, 2021 while stocking the bottom shelf at a Walmart Supercenter in Omaha when multiple cases of canned soup fell on him.
- Counts alleges a senior project coordinator employed by Spar Group instructed a team member to touch the overstock shelf while Counts was on his hands and knees and failed to warn him.
- Counts filed pro se, was granted in forma pauperis status, and the court conducted an initial review under 28 U.S.C. § 1915(e)(2).
- Counts alleges Nebraska citizenship; Spar Group is a Delaware corporation with its principal place of business in Michigan. Counts seeks $115 million in damages.
- The court found diversity jurisdiction plausible (amount in controversy not shown to be legally impossible to exceed $75,000) and that the complaint states a plausible negligence claim, so the case survives preservice dismissal and will proceed to service.
- Counts’ subpoena seeking Walmart video and premises inspection was treated as a motion and denied without prejudice for lack of a showing supporting expedited discovery; the U.S. Marshal will serve process without prepayment and the case is removed from the pro se docket.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether complaint should be dismissed under §1915(e)(2) for failure to state a claim | Counts alleges facts showing negligence (supervisor ordered shelf touched while he was vulnerable and failed to warn) | (No formal defense in record) Alleged deficiency: insufficient factual detail to plead plausibly | Court: complaint sufficiently alleges a plausible negligence claim; not dismissed preservice |
| 2. Diversity jurisdiction / amount in controversy | Counts alleges Nebraska citizenship and $115,000,000 damages | Spar could contest amount as speculative / implausible | Court: diversity exists; amount-in-controversy not shown to be legally certain to be below $75,000, so jurisdiction proper |
| 3. Early discovery / subpoena for Walmart video | Counts sought subpoena and inspection of premises to obtain video evidence | Opposing view: discovery premature under local general order; no showing of need for expedited discovery | Court: subpoena (treated as motion) denied without prejudice for lack of proper showing and because pre-progression discovery is restricted |
| 4. Service of process and IFP service by U.S. Marshal | Counts entitled to rely on Marshal service while proceeding IFP | No dispute noted; defendant to be served per Fed. R. Civ. P. 4(h) | Court: Clerk to provide summons/USM-285; Marshal to serve without prepayment; extension granted to complete service |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (establishes plausibility standard for pleading).
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (applies and explains plausibility pleading standard).
- Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843 (8th Cir. 2014) (pro se complaints are liberally construed; complaint must give fair notice).
- Peterson v. The Travelers Indem. Co., 867 F.3d 992 (8th Cir. 2017) (amount-in-controversy must not be shown to be legally certain to be below threshold to defeat jurisdiction).
- Wright v. First Student, Inc., 710 F.3d 782 (8th Cir. 2013) (in forma pauperis plaintiffs entitled to rely on U.S. Marshals for service).
- Moore v. Jackson, 123 F.3d 1082 (8th Cir. 1997) (28 U.S.C. § 1915(d) compels officers of the court to issue and serve process in IFP cases).