802 F. Supp. 2d 900
M.D. Tenn.2011Background
- Lowe's moved to dismiss and court retained jurisdiction over the action, which was removed from state court on diversity grounds.
- Plaintiff purchased plywood at Lowe's Cookeville store on April 5, 2010, loaded it onto a cart, and later attempted to load it onto his truck without assistance.
- Plaintiff was denied loading assistance at the exit after requesting help twice, then loaded the plywood himself and was injured.
- Store management later indicated there were employees whose exclusive job was to load purchases, suggesting a potential duty argument.
- Plaintiff filed suit March 22, 2011 in state court; removal occurred April 15, 2011; issues arose regarding the timing and scope of service of the Amended Complaint naming a fictitious John Doe.
- Court granted Lowe's motion to dismiss, and held jurisdiction proper despite John Doe and ultimately dismissed negligence, misrepresentation, and TCPA claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does John Doe destroy complete diversity? | Plaintiff argues John Doe is a Lowes employee and destroys diversity. | Lowe's treats John Doe as a fictitious defendant; citizenship disregarded for removal analysis. | No complete diversity; but court held jurisdiction remains proper and John Doe's citizenship disregarded for removal analysis. |
| Did Lowe's owe a duty to assist loading purchased plywood? | Plaintiff contends Lowe's duty to provide loading assistance existed due to routine practice. | There is no Tennessee duty to assist in loading; custom does not create a legal obligation. | Duty to assist not recognized; negligence claim dismissed. |
| Whether negligent misrepresentation claim survives reliance standards. | Defendant allegedly provided false loading-assistance information relied upon by plaintiff. | Reliance was not reasonable given plaintiff could have sought information from management or other staff. | Negligent misrepresentation claim dismissed for lack of justifiable reliance. |
| Whether intentional misrepresentation claim survives under heightened pleading. | Employee knowingly misrepresented availability of loading assistance. | Claim requires heightened pleading and failure of reasonable reliance defeats it. | Intentional misrepresentation claim dismissed; pleaded with insufficient specificity and not reasonably relied upon. |
| Whether TCPA claim is viable given the injury-based damages. | TCPA claim arises from unfair/deceptive conduct causing damages and injury. | Damages linked to personal injuries do not constitute an ascertainable loss of money or property under TCPA. | TCPA claim dismissed as it seeks damages from personal injuries, not independent ascertainable losses. |
Key Cases Cited
- Curry v. U.S. Bulk Transp., Inc., 462 F.3d 536 (6th Cir. 2006) (strict interpretation of diversity; fictitious defendants ignored for removal)
- Alexander v. Elec. Data Sys. Corp., 13 F.3d 940 (6th Cir. 1994) (diversity jurisdiction and fictitious defendants contemplated in removal)
- Holloway v. Pacific Indent. Co., 422 F. Supp. 1036 (E.D. Mich. 1976) (addressed remand and jurisdiction principles in removing actions)
- Mick v. The Kroger Co., 37 Ill.2d 148, 224 N.E.2d 859 (Ill. 1967) (store policy on loading does not create legal duty)
- Gafford v. Gen. Elec. Co., 997 F.2d 150 (6th Cir. 1993) (burden of proving federal jurisdiction lies on the removing party)