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finding that the plaintiff's allegations that she fell and broke her jaw, knocked out some of her teeth, injured her shoulder, incurred medical bills and that she was seeking compensatory and punitive damages were not sufficient to support the defendant's contention, by a preponderance of the evidence, that the amount in controversy was satisfied
Summary of this case from Grable v. Taser International, Inc.Opinion
CASE NO. 2:08-cv-492-WKW (WO).
July 10, 2008
MEMORANDUM OPINION AND ORDER
This case is before the court on the plaintiff's Motion for Remand (Doc. # 7). The court finds that the motion is due to be GRANTED.
I. FACTS AND PROCEDURAL HISTORY
The facts as set forth in the complaint are as follows. Plaintiff Debra Howell ("Howell") tripped and fell in a hole in the defendant's parking lot. (Compl. ¶ 4.) As a result of her fall, she experienced a broken jaw, damaged and knocked out teeth, an injured right shoulder and arm, and medical bills. ( Id. ¶ 7.) She alleges that the defendant negligently or wantonly failed to maintain the premises and to warn her of the dangerous condition. ( Id. ¶ 5.)
On May 27, 2008, Howell commenced an action in the Circuit Court of Barbour County. She did not include an ad damnum clause in her complaint. On June 23, 2008, the defendant removed the case (Doc. # 1). On July 7, 2008, Howell moved to remand the case. (Doc. # 7.) If the court granted her motion, she stated that she would amend her complaint to limit the amount of damages to an amount not to exceed $74,999.00. (Mot. Remand ¶ 3.) The court did not order briefing from the parties because it is evident from the Notice of Removal that removal was improper.
The complaint names Fields Realty, LLC, as the defendant. In the Notice of Removal, the defendant states that the correct defendant is Eufaula Fields, LLC. (Notice of Removal ¶ 3.)
II. STANDARD OF REVIEW
Federal courts have a strict duty to exercise the jurisdiction conferred on them by Congress. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). However, "[f]ederal courts are courts of limited jurisdiction." Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Thus, with respect to cases removed to this court pursuant to 28 U.S.C. § 1441, the law of the Eleventh Circuit favors remand where federal jurisdiction is not absolutely clear. "[R]emoval statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand." Id.
III. DISCUSSION
Diversity jurisdiction exists when there is diversity of citizenship and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. 28 U.S.C. § 1332. The parties do not contest that there is diversity of citizenship. The issue is whether the amount in controversy requirement is met.To determine the amount in controversy, a court first looks to the amount alleged in the complaint. Burns, 31 F.3d at 1095. If the plaintiff does not specifically allege an amount in controversy, the removing defendant must establish the amount in controversy by a preponderance of the evidence. Lowery v. Ala. Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007), cert. denied, 76 U.S.L.W. 3540 (U.S. Apr. 1, 2008) (No. 07-1246).
In resolving a motion to remand under the preponderance of evidence standard, "[i]f the jurisdictional amount is either stated clearly on the face of the documents before the court, or readily deducible from them, then the court has jurisdiction. If not, the court must remand." Id. at 1211. The universe of evidence a court can draw upon in evaluating the propriety of removal is usually limited to the notice of removal and accompanying documents. Id. at 1214. As the Eleventh Circuit explained in Lowery, a defendant who can meet the preponderance of the evidence standard also could have met the more stringent legal certainty standard. Id. at 1211 n. 59. The two standards are essentially the same at the motion to remand stage because when applying the preponderance of evidence standard the court has only the removal documents before it, resulting in the court applying "a fact weighing standard to a fact-free context." Id. at 1209.
The defendant has not met its burden of showing that the amount in controversy is met here. The defendant claims that the amount in controversy requirement is met because Howell "alleges permanent injuries and damages, including punitive damages, which are of a nature and extent that the undersigned reasonably believes will give rise to a claim of $75,000.00, or more." (Notice of Removal ¶ 7 (emphasis added).) Belief — even if it is reasonable — that the amount in controversy is met does not establish by a preponderance of the evidence that it is, in fact, met. Indeed, the court finds that the defendant has presented no evidence that the amount in controversy requirement is met.
The defendant also relies on Howell's claim for punitive damages as evidence that the amount in controversy is sufficient to confer jurisdiction. As this court has previously stated, a defendant does not meet its burden by pointing out that the plaintiff seeks punitive damages: "[T]his argument begs the question of what those punitive damages are likely to be — a question that [the defendant] bears the burden of answering." Moore v. CNA Found., 472 F. Supp. 2d 1327, 1332 (M.D. Ala. 2007); see also Fields v. Travelers Indem. Co., No. 08-cv-155, 2008 WL 2225756, at *3 (M.D. Ala. May 28, 2008); Le v. ArciTerra Group, LLC, 07-cv-1070, 2008 WL 2020436, at *4 (M.D. Ala. May 9, 2008); Watson v. Nuvell Fin. Servs., LLC, No. 07-cv-640, 2008 WL 110923, at *3 (M.D. Ala. Jan. 9, 2008); Daniel v. Nationpoint, No. 07-cv-639, 2007 WL 4533121, at *3 (M.D. Ala. Dec. 19, 2007). Simply put, a demand for punitive damages is insufficient to satisfy the amount in controversy requirement.
IV. CONCLUSION
This case is due to be remanded because the defendant failed to establish by a preponderance of the evidence that removal was appropriate, and this court is therefore without jurisdiction.
Accordingly, it is ORDERED that:
1. The plaintiff's Motion to Remand (Doc. # 7) is GRANTED;
2. This case is REMANDED to the Circuit Court of Barbour County, Alabama;
3. The Clerk is DIRECTED to take all steps necessary to effect the remand.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , , (11th Cir. 1989); , , , , , (1964). : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).