                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2001-IA-01372-SCT

WAL-MART SUPER CENTER AND BESAM, INC.

v.

EVA LONG


DATE OF JUDGMENT:                           8/21/2001
TRIAL JUDGE:                                HON. JAMES B. FLOYD, III
COURT FROM WHICH APPEALED:                  LEE COUNTY COURT
ATTORNEYS FOR APPELLANTS:                   W. O. LUCKETT, JR.
                                            ROBERT M. TYNER, JR.
                                            J. KEITH PEARSON
ATTORNEYS FOR APPELLEE:                     LEROY D. PERCY
                                            GRAY TOLLISON
                                            GARY L. CARNATHAN
NATURE OF THE CASE:                         CIVIL - PERSONAL INJURY
DISPOSITION:                                AFFIRMED AND REMANDED - 06/26/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE PITTMAN, C.J., WALLER AND CARLSON, JJ.

       PITTMAN, CHIEF JUSTICE, FOR THE COURT:


¶1.    Eva Long filed a complaint in the County Court of Lee County against Wal-Mart

Super Center (Wal-Mart) seeking $75,000 for injuries she suffered in an accident involving

a mechanical door. Over a year later, she requested leave to increase the ad damnum clause

from $75,000 to $750,000; to transfer jurisdiction to the circuit court; and to add additional

defendants. The trial court granted leave to amend and transferred the case to circuit court.
The county court’s order was stayed, and this Court granted the defendants permission to file

this interlocutory appeal, see M.R.A.P. 5., which presents two issues: (1) whether the county

court erred by granting leave to amend; and (2) do county courts have the authority to

transfer cases to the circuit court. This Court affirms and remands.

                                          FACTS

¶2.    On August 30, 1998, Long suffered a broken hip after she was allegedly struck by an

automatic door at the Wal-Mart Super Center in Tupelo. She filed suit on July 20, 2000 in

the County Court of Lee County seeking $75,000 damages.1 Wal-Mart filed a third-party

complaint against Besam, Inc., the manufacturer of the automatic-door. (We will refer to

Wal-Mart and Besam collectively as “Wal-Mart”.)

¶3.    On July 27, 2001, Long requested leave to amend the ad damnum clause of her

complaint, to join the store’s manager as an additional defendant, and to transfer the matter

to circuit court. A telephonic hearing was conducted on August 17, 2001. Opposing the

request, Wal-Mart argued that because it was not sought until after the expiration of the one-

year deadline for removal to federal court, Long delayed her request in an effort to prevent

them from exercising their right to removal.2 They submitted that this was a “classic

example of forum manipulation” and that because they may not now seek removal, they

would suffer actual prejudice if the decision granting the amendment is affirmed.

       1
         Controlling in the instant matter is Miss. Code Ann. § 9-9-21 (2002), which limits
the jurisdiction of county courts to matters not exceeding $75,000 in value. Effective July
1, 2003, the Legislature extended such jurisdiction to include matters not exceeding
$200,000 in value. H.B. 973, 2003 Miss. Laws ch. 429.
       2
      28 U.S.C. § 1446(b) prohibits removal of a diversity action one year from the
commencement of the action.

                                              2
¶4.    Long argued that the amendment would not prejudice Wal-Mart’s defense. Counsel

for Long insisted that there was no dilatory motive or bad faith for the delay and assured the

court that the delay was unintentional.

¶5.    Ultimately, the county court held that the delay did not cause Wal-Mart to suffer

actual prejudice. The county court granted Long's request to amend the ad damnum clause

and ordered the matter transferred to circuit court, who would have to decide whether to

allow the store manager to be joined.

                                STANDARD OF REVIEW

¶6.    Motions for leave to amend a complaint are left to the sound discretion of trial court.

Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 961 (Miss. 2002) (citing Preferred

Risk Mut. Ins. Co. v. Johnson, 730 So.2d 574 (Miss. 1998)(collecting authorities)). The

Court reviews such determinations under an abuse of discretion standard. Moeller, 812

So.2d at 961 (collecting authorities). Unless convinced that trial court abused its discretion,

the Court is without authority to reverse. Id.

¶7.    Although the trial court has discretion to allow an amendment, and should do so freely

under the proper circumstances, it should not allow amendment when to do so would

prejudice the defendant. Johnson, 730 So.2d at 579; Hester v. Bandy, 627 So.2d 833, 839

(Miss.1993).

                                          ANALYSIS

       I.      DID THE COUNTY COURT ERR IN ALLOWING THE
               PLAINTIFF TO AMEND HER COMPLAINT?




                                                 3
¶8.    The first issue is whether the Wal-Mart suffered “actual prejudice” after Long was

allowed to amend her complaint. This requires the Court to consider what bearing the federal

right to removal has on the state's policy to freely allow amendments.

¶9.    Although never alleged by Long, the trial court granted leave based on new medical

bills. Wal-Mart stresses that no additional medical treatment has been needed and that

virtually all medical treatment relating to the accident occurred in the years 1998 and 1999,

well before the filing of the original complaint. Wal-Mart submits that this finding is

erroneous.

¶10.   Further, Wal-Mart argues that Long should have known the nature and extent of her

damages but chose to file in county court. The only change in circumstances, Wal-Mart

points out, is the appearance of Gray Tollison, counsel for the Long.

¶11.   Counsel for Long attributes the delay to his recent association in the case and that it

was not until his evaluation that it was discovered the actual medical damages exceeded

$80,000. Wal-Mart emphasizes that Long had been represented by competent counsel, Gary

L. Carnathan, who is still participating, and that, Tollison's evaluation was based on no new

information.

¶12.   The rule regarding amendments is clear. Leave to amend should be freely granted

whenever justice so requires. Miss. R. Civ. P. 15 cmt.. See also Moeller, 812 So.2d at 962.

Amendments should be denied only if they "would cause actual prejudice to the opposite

party." Id. (emphasis added). See also TGX Intrastate Pipeline Co. v. Grossnickle, 716

So.2d 991, 1011 (Miss. 1997). Applications for leave to amend pleadings should be prompt

and not the result of an inexcusable want of diligence. Id. at 1011; William Iselin & Co.

                                             4
v. Delta Auction & Real Estate Co., 433 So.2d 911, 913 (Miss. 1983) (cited in Natural

Mother v. Paternal Aunt, 583 So.2d 614, 617 (Miss. 1991)). See also V. A. Griffith,

Mississippi Chancery Practice § 392, at 378 (2d ed. 1950).

¶13.   Amendments which are permitted in the latter stages of litigation may deny the

important policy favoring finality of judgments and the expeditious termination of litigation.

William Iselin & Co., 433 So.2d at 911. Thus, the policy to freely grant amendments is not

allowed to encourage delay, laches and negligence. Id. Examples of when motion to amend

may be prejudicial include: where it would burden the adverse party with more discovery,

preparation, and expense, particularly where the adverse party would have little time to

investigate and acquaint itself with the matter. Id. (cited in Natural Mother, 583 So.2d at

617). See also Grossnickle, 716 So.2d at 1011.

¶14.   Surprisingly, only one court has specifically addressed whether the loss of the federal

right to remove an action causes a defendant to suffer actual prejudice. Tyrrell v. Wal-Mart

Stores Inc., 719 N.Y.S.2d 163 (N.Y. App. Div. 2000), rev’d on other grounds, 762 N.E.2d

921 (N.Y. 2001). In Tyrrell, a jury returned a verdict in favor of a plaintiff which exceeded

the damages sought in the complaint. Tyrrell, 770 A.D.2d at 770. The defendant appealed

after the judge granted plaintiff’s motion to increase the ad damnum clause. Id. The

defendant argued that the trial court improperly authorized the plaintiff to amend the

complaint. Id. at 772. Because the defendant failed to show that the ability to defend was

in any way hindered or that the trial was manifestly unfair, the court held that the inability

to remove the case was insufficient to demonstrate the kind and extent of prejudice to

preclude the amendment. Id.

                                              5
¶15.   Wal-Mart’s argument is premised on the fact that, as originally filed, the case was not

removable. However, a closer examination of the original complaint and a review of federal

law reveals that they are mistaken.

¶16.   First, the federal courts allow defendants to remove a case even though the damages

alleged by a plaintiff are less than the federal jurisdictional amount.3 In such circumstances,

the Fifth Circuit adopted the “preponderance of evidence” standard. De Aguilar v. Boeing

Co.,47 F.3d 1404 (5th Cir. 1995)(De Aguilar II).

¶17.   In De Aguilar II, the relatives of victims of a plane crash filed a wrongful death

action in state court and alleged damages less than jurisdictional limit. De Aguilar II, 47

F.3d at 1408. Concerned that plaintiffs may engage in manipulative and "creative" pleading

in bad faith, the court applied the “legal certainty test” as set forth in St. Paul Mercury

Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938).

47 F.3d at 1409-11. “In order for a federal court to decline jurisdiction, ‘it must appear to

a legal certainty that the claim is really for less than the jurisdictional amount.’” Id. at 1409.

The Fifth Circuit stated:

       [w]e hold that if a defendant can show that the amount in controversy actually
       exceeds the jurisdictional amount, the plaintiff must be able to show that, as
       a matter of law, it is certain that he will not be able to recover more than the
       damages for which he has prayed in the state court complaint. Such a rule is
       necessary to avoid the sort of manipulation that has occurred in the instant
       case.

Id. at 1411.



       3
        To invoke diversity of citizenship jurisdiction, the value of the matter in controversy,
exclusive of interest and costs, must exceed $75,000. 28 U.S.C. § 1332.

                                                6
       [T]he plaintiff's claim remains presumptively correct unless the defendant can
       show by a preponderance of the evidence that the amount in controversy is
       greater than the jurisdictional amount. The preponderance burden forces the
       defendant to do more than point to a state law that might allow the plaintiff to
       recover more than what is pled. The defendant must produce evidence that
       establishes that the actual amount in controversy exceeds [the jurisdictional
       amount].

Id. at 1412.

       Once a defendant is able to show that the amount in controversy exceeds the
       jurisdictional amount, removal is proper, provided plaintiff has not shown that
       it is legally certain that his recovery will not exceed the amount stated in the
       state complaint.

Id.

¶18.   As an illustration of a “legal certainty”, the court suggested a party opposing removal

file a binding stipulation or affidavit with the complaint. Id. at 1412 (citing In re Shell Oil

Co., 970 F.2d 355 (7th Cir. 1992)).4

¶19.   Concerned about the difficulty defendants have in satisfying their burden under the

“legal certainty test,” the United States District Court for the Southern District of Mississippi

discussed how a defendant can ascertain that the case has become removable. McLain v. Am.

Int’l Recovery, Inc., 1 F. Supp. 2d 628, 631 (S.D. Miss. 1998). The court stated:

       [If] defense counsel believes that the damages are in excess of the
       [jurisdictional limit], the defendant can have the case properly removed
       utilizing state court discovery rules. Specifically, the defense lawyer can have
       the plaintiff admit through a deposition, an interrogatory, or a request for
       admission that his damages do not exceed $75,000.



       4
         Arguing that De Aguilar II is not controlling, the dissent cites Allen v. R & H Oil
& Gas Co., 63 F.3d 1326 (5th 1995) and Harris v. Benham Group, 2002 WL 31050999
(N.D. Miss. 2002). We note that both cases cite De Aguilar II and that Allen applied the
principles and held similarly.

                                               7
Id. at 631.

¶20.     In the instant case, Wal-Mart’s argument that the case was not removable is

incorrect. Based on De Aguilar II, Wal-Mart could have sought removal. However, they

did not seek to exercise their right provided under federal law. Had they been more diligent,

Long would have been required to stipulate whether the amount in controversy would exceed

$75,000. Our reliance on De Aguilar II is to rebut Wal-Mart’s argument that matter was not

removable.

¶21.   We note that Wal-Mart still may have its day in federal court. Until recently, the

federal courts were less strict in the enforcement of the amount in controversy requirement,

in comparison to the one-year deadline on removal provided under 28 U.S.C. § 1446(b). But

in Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003), the Fifth Circuit

reaffirmed the applicability of equitable tolling where a plaintiff has attempted to manipulate

the statutory rules. Id. at 428-29. The court stated:

       Section 1446(b) is not inflexible, and the conduct of the parties may affect
       whether it is equitable to strictly apply the one-year limit...[The Plaintiff’s]
       forum manipulation justifies application of an equitable exception in the form
       of estoppel. In enacting § 1446(b), Congress intended to "reduc[e] opportunity
       for removal after substantial progress has been made in state court." Congress
       may have intended to limit diversity jurisdiction, but it did not intend to allow
       plaintiffs to circumvent it altogether. Strict application of the one-year limit
       would encourage plaintiffs to join nondiverse defendants for 366 days simply
       to avoid federal court, thereby undermining the very purpose of diversity
       jurisdiction.

Id. at 426-27 (footnotes omitted). Thus in Tedford, it is apparent that the Fifth Circuit has

developed its own methods for policing forum manipulation.




                                              8
¶22.   This Court holds that the amended complaint does not cause Wal-Mart to suffer actual

prejudice. Wal-Mart knew the state’s policy on amended pleadings. Based on the original

complaint, Wal-Mart could have sought removal. Nevertheless, Wal-Mart chose not to

protect its federal statutory right of removal and now requests the Court to oblige. This

Court is not the guardian for the jurisdiction of the federal courts.

¶23.   Wal-Mart has not shown how its ability to defend was hindered or how a trial in state

court would be manifestly unfair. Therefore, the county court did not abuse its discretion

in granting leave to amend.

       II.    DID THE COUNTY JUDGE ERR IN GRANTING THE
              MOTION TRANSFERRING THE CASE TO CIRCUIT
              COURT?




                                              9
¶24.   Miss. Code Ann. § 9-9-21 governs the jurisdiction of county courts.5 Wal-Mart

argues that under § 9-9-21 county courts do not have the authority to transfer a case to circuit

courts by granting an amendment that effectively divests itself of jurisdiction. The Court

disagrees.

¶25.   As previously noted, leave to amend should be freely granted. Such a policy should

not be hindered by the limited jurisdiction of the county courts. Accordingly, we find that

county courts have the authority to grant an amendment even though by doing so it will

divest itself of jurisdiction and require the matter to be transferred to either the chancery or




       5
              (1) The jurisdiction of the county court shall be as follows: It
              shall have jurisdiction concurrent with the justice court in all
              matters, civil and criminal of which the justice court has
              jurisdiction; and it shall have jurisdiction concurrent with the
              circuit and chancery courts in all matters of law and equity
              wherein the amount of value of the thing in controversy shall
              not exceed, exclusive of costs and interest, the sum of Seventy-
              five Thousand Dollars ($75,000.00), and the jurisdiction of the
              county court shall not be affected by any setoff, counterclaim or
              cross-bill in such actions where the amount sought to be
              recovered in such setoff, counterclaim or cross-bill exceeds
              Seventy-five Thousand Dollars ($75,000.00). Provided,
              however, the party filing such setoff, counterclaim or cross-bill
              which exceeds Seventy-five Thousand Dollars ($75,000.00)
              shall give notice to the opposite party or parties as provided in
              Section 13-3-83, and on motion of all parties filed within twenty
              (20) days after the filing of such setoff, counterclaim or cross-
              bill, the county court shall transfer the case to the circuit or
              chancery court wherein the county court is situated and which
              would otherwise have jurisdiction.

Miss. Code Ann. § 9-9-21(1) (2002).



                                              10
circuit courts. Such authority is incidental M.R.C.P. 15's policy to freely allow leave to

amend and in accordance with the policy to provide complete remedy.

                                    CONCLUSION

¶26.   We find that the decision to grant leave to amend does not cause the Wal-Mart to

suffer actual prejudice. Further, we find that the county court has the power transfer an

action to chancery or circuit court. This power is incidental to the policy to freely allow

amendments to pleadings and the policy favoring a complete remedy. Therefore, we affirm

the county court’s order and remand this case for further proceedings consistent with this

opinion.

¶27.   AFFIRMED AND REMANDED.

     McRAE, P.J., WALLER, DIAZ, EASLEY, CARLSON AND GRAVES, JJ.,
CONCUR. SMITH, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY COBB, J.


       SMITH, PRESIDING JUSTICE, DISSENTING:

¶28.   In my view the County Court of Lee County abused its discretion when it granted

Long leave to amend her complaint thus causing Wal-Mart to suffer “actual prejudice.” Miss.

R. Civ. P. 15 cmt. See also TGX Intrastate Pipeline Co. v. Grossnickle, 716 So. 2d 991,

1001 (Miss. 1997); Hester v. Bandy, 627 So. 2d 833, 839 (Miss. 1993); William Iselin &

Co. v. Delta Auction Real Estate Co., 433 So. 2d 911, 913 (Miss. 1983); Saxon v. Harvey,

190 So.2d 901 (Miss.1966); 6 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane,

Federal Practice and Procedure, Civil § 1481 (1990). Because of Long's delay in amending,

Wal-Mart was unable to seek federal removal under 28 U.S.C. § 1446(b). If Long’s original


                                            11
complaint had stated a claim greater than $75,000, Wal-Mart could have availed itself of its

right to federal removal in this case based on diversity jurisdiction. However, since under

28 U.S.C. §§ 1332 & 1441(b), the damage claim must be in excess of $75,000, Wal-Mart

could not remove this case to federal court when the original complaint was filed. Instead

of amending her complaint before the one year deadline passed, she waited until 7 days after

the deadline to increase her damages from $75,000 to $750,000.

¶29.   The requested amendment, whether intentional or not, is a clear example of forum

manipulation. Even if not an intentional attempt to manipulate the forum, the appearance of

manipulation is too great based on the circumstances surrounding this case and the resulting

extreme prejudice to Wal-Mart. Long appears to have manipulated her pleadings to initially

file in state court and wait a year before increasing her claims for damages.

¶30.   There are certain limits on permitting amendments. A failure of full justice on the

merits can occur when leave to amend is not granted, however:

       it is [also] true that good faith and a reasonable diligence are expected of
       parties in equity and of their solicitors, and that every party when he comes
       into court will in the first instance unfold his whole case or defense in
       accordance with the rules that govern the pleadings and proceedings therein.

Miss. R. Civ. P. 15 cmt. An application to amend should not be granted when the applicant

does not meet the standard of due diligence. See Natural Mother v. Paternal Aunt, 583 So.

2d 614, 617 (Miss. 1991); William Iselin, 433 So. 2d at 913. In this case, I believe the

amendment was requested after an inexcusable and calculated delay.

¶31.   In Natural Mother, this Court held that a plaintiff must exercise due diligence when

filing a motion to amend the complaint. 583 So. 2d at 617 (citing William Iselin & Co., 433


                                            12
So. 2d at 913); see also Grossnickle, 716 So. 2d at 1011. The grant of an amendment can

cause the adverse party to incur additional discovery, preparation and expense, particularly

when that party would have little time to investigate and become acquainted with the new

matter. Natural Mother, 583 So. 2d at 617. See also Grossnickle, 716 So. 2d at 1011.

¶32.    In Red Enterprises, Inc. v. Peashooter, Inc., 455 So.2d 793 (Miss. 1984) (quoting

Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)), we agreed that the rules

require the leave to be freely granted but only when it appears to the lower court that there

is no unjust apparent or declared reason, “such as undue delay, bad faith or dilatory motive

on the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,

[or] futility of the amendment, etc.” Id.

¶33.    The majority points to De Aguilar v. Boeing Co., 47 F.3d 1404 (5th Cir. 1995)(De

Aguilar II), as Fifth Circuit precedent which would have allowed Wal-Mart to have filed

in federal court despite Long’s originally alleged amount in controversy. In De Aguilar II,

the Fifth Circuit announced that the defendant need only show by a preponderance of the

evidence that the amount in controversy is greater than the jurisdictional amount. Id. at

1412.    However, De Aguilar II also states that to some extent, the plaintiff is “still the

master of his own claim.” Id. (citations omitted). The defendant must produce evidence

that shows that the actual amount in controversy exceeds the jurisdictional amount provided

the plaintiff has not shown that she is “legally certain” her recovery will not exceed the

amount stated in the complaint. Id. De Aguilar II describes how a plaintiff might meet the

legal certainty test by citing a state law which prohibits recovery in excess of the ad damnum

                                             13
clause. Id. However, without such a statute, “litigants who want to prevent removal must

file a binding stipulation or affidavit with their complaints.” Id. (citing Guance v. St. Paul

Mercury, 488 U.S. 488 U.S. 950, 109 S.Ct. 38, 102 L.Ed.2d 372 (1988); In re Shell Oil Co.,

970 F.2d 355, 356 (7th Cir. 1992)). In effect, this ruling requires plaintiffs to show that they

are bound irrevocably by their state pleadings. Id.

¶34.   There is good reason for the majority's overlooking or not citing subsequent cases.

In my view, the following cited federal cases from Mississippi are more on point and

controlling here. In Allen v. R & H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995), a

Mississippi case, the court points out that removal cannot be based on conclusory allegations.

Id. at 1335 (citing Gaus v. Miles, Inc., 980 F.2d 564, 567 (9th Cir. 1992)). The

jurisdictional amount must be judged at the time of removal with post-removal affidavits

allowed only if relevant to that period of time. Id. at 1135-36. If when looking at the

complaint, the amount sought by the plaintiff is not “facially apparent,” the district court may

determine that the amount in controversy exceeds the jurisdictional amount. Id. ¶35.

       Additionally, McClain v. American Intern. Recovery, Inc., 1 F. Supp. 2d 628 (S.D.

Miss. 1998), is a solid example of the problem with the majority’s reasoning based on De

Aguilar II. The McClain court stated that “until a defendant receives in writing, a statement

that suggests that a plaintiff plans to seek more than $75,000 in damages, the case is not

removable to federal court” Id. at 631. The problems exist because “[e]ven if a defendant

asks a plaintiff to stipulate that the damages are below the jurisdictional amount, if the

plaintiff refuses to stipulate, the case cannot be removed based solely on this refusal.” Id.

Harris v. Benham Group, 2002 WL 31050999 (N.D. Miss. 2002), also lends support to my

                                              14
departure from the majority. Unless the defendant can meet its burden, the plaintiff may

avoid federal diversity jurisdiction by pleading, in good faith, state court damages below the

required jurisdictional amount. Id. at 1.

¶36.   In this case, Long’s original complaint specifically alleged an amount in controversy

less than the jurisdictional amount. Whether or not made in good faith, Long’s complaint did

not give the federal court jurisdiction. Long’s amendment should have been denied as unjust

since Wal-Mart has suffered actual prejudice. Therefore, I would reverse county court’s

order granting Long leave to amend and transferring this case to circuit court, and I would

remand this case for further proceedings in the County Court of Lee County.

¶37.   For these reasons, I respectfully dissent.

       COBB, J., JOINS THIS OPINION.




                                             15
