K MART CORPORATION, PETITIONER,
v.
CONCEPCION FERNANDEZ, RESPONDENT
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K Mart sought a writ of certiorari to review a discovery order denying its motion to compel responses to a request for admissions regarding the amount of damages claimed. The court denied the petition, finding that while the circuit court's reasoning was technically erroneous, K Mart had not demonstrated irreparable injury warranting relief.
Although the circuit court's reasoning that a request for admissions about damage amounts is facially improper was erroneous, K Mart has not demonstrated irreparable injury because the record is insufficient to evaluate Fernandez's inability to quantify damages, and Fernandez's subsequent offer of judgment below the removal threshold indicates K Mart is unlikely to exercise its removal right.
[1] A request for admissions may be used to ascertain the amount in controversy for the purpose of removal to federal court.
[2] A court may deny a petition for a writ of certiorari if the petitioner has not demonstrated an irremediable loss of rights.
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Join FLexlaw to unlock all legal intelligence“the subject matter of the request is not proper for a request for admissions”
The circuit court's stated reason for denying K Mart's motion to compel, which the appellate court found to be erroneous as a matter of law.
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Join FLexlaw to unlock all legal intelligenceFernandez sued K Mart for injuries allegedly caused by defective cough medicine. K Mart served a request for admissions asking whether Fernandez was c…
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[*847] PER CURIAM.
K Mart Corporation petitions this court for a writ of certiorari to review a discovery order. We deny the petition.
Respondent Concepcion Fernandez sued K Mart after allegedly having purchased and consumed “defective cough medicine.” K Mart, a Michigan corporation, served a request for admissions which asked, inter alia, whether Fernandez “[is] claiming damages in the amount of $50,000 or less.” In the event Fernandez had indicated her claim would exceed that amount, K Mart asserts it would have petitioned for removal to federal court pursuant to 28 U.S.C. §§ 1332 and 1441. However, Fernandez objected that the request was not proper in that it “does not seek an admission of fact or law designed to narrow or simplify the issues for trial, nor [is] it ... calculated to lead to the discovery of admissible evidence.” She also purported to be unable at this time to determine the exact amount of damages she might seek at trial. The circuit court denied K Mart’s motion to compel Fernandez to respond to the request for admissions, stating that “the subject matter of the request is not proper for a request for admissions.”
We agree with K Mart that the circuit court’s order, as worded, is in error. See, e.g., Steele v. Underwriters Adjusting Co., Inc., 649 F.Supp. 1414 (M.D.Ala.1986); Bonnell v. Seaboard Air Line Railroad Co., 202 F.Supp. 53 (N.D.Fla.1962) (suggesting request for admissions is a proper method to ascertain the amount in controversy for removal purposes). Moreover, because 28 U.S.C. § 1446(b) imposes a limit of one year from commencement of the action to petition for removal, K Mart believes it will suffer the “irreparable injury” of losing this right unless Fernandez is compelled to answer at some point prior to that one-year deadline.
Nevertheless, we are not persuaded that K Mart faces the prospect of an irremediable loss of rights. First of all, the record before us is insufficient to determine whether the circuit court ceased its inquiry after concluding K Mart’s request for admissions was facially improper, or whether the court also considered the merits of Fernandez’s assertion not to be able to quantify her damages at this stage in the proceedings. Assuming the circuit court did both, we have been provided no basis for evaluating the reasonableness of that assertion. Additionally, the record indicates that Fernandez subsequently made an offer of judgment for less than the $50,000 removal threshold. Therefore, unless circumstances change, we have no reason to conclude that K Mart is likely to exercise its right of removal to federal court.
Petition for writ of certiorari denied.
CAMPBELL, A.C.J., and SCHOONOVER and BLUE, JJ., concur.
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