Opinion
CASE NO.: 2:08cv305-MEF (WO).
February 20, 2009
MEMORANDUM OPINION AND ORDER
This Court is obligated to consider, sua sponte, whether subject matter jurisdiction is present. It must remand the case to state court if it determines that subject matter jurisdiction is absent. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."); Fed.R.Civ.P. 12(h)(3); see also Yusefzadeh v. Nelson, Mullins, Riley Scarborough, LLP, 365 F.3d 1244, 1245 (11th Cir. 2004) (stating that "the district court may not sua sponte decide to remand the case for any procedural defect other than lack of subject matter jurisdiction").
Arguing that this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(a), Defendants Michelin North America, Inc. ("MNA") and Michelin Americas Research Development Corporation ("MARC") removed this action from the Clayton Division of the Circuit Court of Barbour County, Alabama pursuant to 28 U.S.C. § 1441(a) on April 21, 2008. After careful consideration of the applicable law, the Court finds that this case must be remanded.
FACTUAL AND PROCEDURAL BACKGROUND
On September 11, 2007, Shane Seaborn ("Seaborn") filed suit as Administrator of the Estate of Gustavo Perez Lopez ("Lopez") against MNA, MARC, Middle Tennessee Imports, Inc., and several fictitious defendants in the Clayton Division of the Circuit Court for Barbour County, Alabama. On April 21, 2008, MNA and MARC removed the action to this Court invoking its subject matter jurisdiction pursuant to 28 U.S.C. § 1332. On May 1, 2008, Seaborn filed the Motion to Remand (Doc. # 12), which he later withdrew. Nevertheless, the issue before this Court is whether this Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(a). More specifically, because there appears to be no dispute as to the diversity of the citizenship of the parties, the key issue before this Court is whether MNA and MARC have adequately demonstrated that the amount in controversy requirement for 28 U.S.C. § 1332(a) is satisfied.
When the Court granted Seaborn's motion to withdraw the motion to remand on February 10, 2009, it advised the parties of its concerns regarding the existence of subject matter jurisdiction. Furthermore, advised the parties that Seaborn's concession "to the jurisdiction of this Court" was legally insufficient to create subject matter jurisdiction over the action. The Court directed counsel for Seaborn to file a stipulation on or before February 13, 2009, indicating that he is now seeking and was seeking at the time the lawsuit was filed and removed damages in excess of $75,000. The Court informed the parties of its intention to remand the case if a proper stipulation was not filed. Seaborn has not filed such a stipulation.
MNA is a corporate citizen of New York and South Carolina. MARC is a corporate citizen of Delaware and South Carolina. Lopez is deemed a resident of Mexico. Middle Tennessee Imports, Inc. was no longer a party at the time of removal, but in any event it was a corporate citizen of Tennessee. The citizenship of the fictitious parties is to be disregarded.
This case arising out of a motor vehicle accident in Autauga County, Alabama on September 27, 2006, which claimed the life of Lopez. At the time of the roll-over accident, Lopez was a passenger in a vehicle on which a tire manufactured and designed by MNA and MARC separated. Although the accident is alleged to have occurred in Autauga County, Alabama, Seaborn filed suit in the Clayton Division of the Circuit Court of Barbour County, Alabama. In Count One, Seaborn brings claims under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") and the Alabama Wrongful Death Act. In Count Two, Seaborn brings claims for negligence and wantonness. Seaborn demands an unspecified amount of damages under the Alabama Wrongful Death Act.
In their removal papers, MNA and MARC argue that this Court had subject matter jurisdiction over the action pursuant to 28 U.S.C. § 1332(a). In so arguing, they contend that it is facially apparent from the Complaint that the amount in controversy exceeds the jurisdictional requirement, which is currently $75,000. They argue that a claim for wrongful death renders the amount in controversy facially apparent regardless of the inclusion of a specified amount in the Complaint. The Court agrees that there is some commonsense appeal to this contention, however, this Court must follow the law as it is handed down by the Eleventh Circuit Court of Appeals and the United States Supreme Court. As evidence that the claim in this case necessarily exceeded $75,000, MNA and MARC assert that other Alabama wrongful death cases with AEMLD claims have resulted in verdicts far in excess of $75,000.
DISCUSSION
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994); Wymbs v. Republican State Executive Comm., 719 F.2d 1072, 1076 (11th Cir. 1983). As such, federal courts only have the power to hear cases that they have been authorized to hear by the Constitution or the Congress of the United States. Kokkonen, 511 U.S. at 377.Among the cases over which a federal district court may exercise subject matter jurisdiction are civil actions in which only state law claims are alleged if the civil action arises under the federal court's diversity jurisdiction. See 28 U.S.C. § 1332(a). The diversity statute confers jurisdiction on the federal courts in civil actions "between citizens of different states," in which the jurisdictional amount, currently in excess of $75,000, is met. Id.
When a case is originally filed in state court, a party may remove it if the case originally could have been brought in federal court. See 28 U.S.C. § 1441(a). Accord, Lowery v. Alabama Power Co., 483 F.3d 1184, 1207 (11th Cir. 2007), cert. denied, 128 S. Ct. 2877 (2008) ("the party seeking a federal venue must establish the venue's jurisdictional requirements" and therefore removing defendants bear that burden in the context of a motion to remand). However, the non-moving party may move for remand, which will be granted if "it appears that the district court lacks subject matter jurisdiction." See 28 U.S.C. § 1447(c). Because removal jurisdiction raises significant federalism concerns, "removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand." Burns, 31 F.3d at 1095.
Recently the Eleventh Circuit Court of Appeals provided significant clarification of "existing principles of law governing removal generally — who bears the burden of establishing that removal is proper, how that party can satisfy its burden, and how a district court must proceed in evaluating its jurisdiction after removal." Lowery, 483 F.3d at 1187. Although Lowery arose in the context of a removal pursuant to the Class Action Fairness Act of 2005 ("CAFA"), it is quite plain from the text of Lowery that the holdings of the case are not limited solely to cases removed under CAFA. In Lowery, the Eleventh Circuit Court of Appeals reiterated that in cases, such as this one, where the complaint does not specify the amount of damages sought, "the removing party bears burden of establishing the jurisdictional amount by a preponderance of the evidence." 483 F.3d at 1208-09, 1210. The Court cautioned, however, that "[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. Under this approach, jurisdiction is either evident from the removing documents or remand is appropriate." Indeed, "in assessing the propriety of removal, the court considers the documents received by the defendant from the plaintiff — be it the initial complaint or a later received paper — and determines whether that document and the notice of removal unambiguously establish federal jurisdiction." Id. at 1213. The defendant and the court may not speculate about the amount in controversy, nor should "the existence of jurisdiction" be "divined by looking to the stars." Id. at 1215. Importantly, the Lowery court stated that it is
highly questionable whether a defendant could ever file a notice of removal on diversity grounds in a case such as the one before us — where the defendant, the party with the burden of proof, has only bare pleadings containing unspecified damages on which to base its notice-without seriously testing the limits of compliance with Rule 11. Unlike the typical plaintiff who originally brings a diversity action in federal court, the removing defendant generally will have no direct knowledge of the value of plaintiff's claims.Id. at 1215. "When a plaintiff seeks unliquidated damages and does not make a specific demand, therefore, the factual information establishing the jurisdictional amount must come from the plaintiff." Id. at 1215. Indeed, the Lowery court specifically rejected a removing defendant's attempt to satisfy its burden of proving amount in controversy by reliance on jury verdicts in other supposedly similar cases. Id. at 1189, 1220-21.
Lowery was not the first time the Eleventh Circuit Court of Appeals had stated that reliance on damages awards in other cases was insufficient. See, e.g., Federated Mut. Ins. Co. v. McKinnon Motors, LLC., 329 F.3d 805, 809 (11th Cir. 2003) ("mere citation to what has happened in the past does nothing to overcome the indeterminate and speculative nature of [the removing defendant's] assertion [that subject matter jurisdiction existed under § 1332] in this case.").
For obvious reasons, Lowery was a cornerstone for Plaintiff's arguments in support of the now-withdrawn motion to remand. MNA and MARC attempt to distinguish Lowery, but the Court finds those arguments to be unpersuasive. Indeed, in this Court's view, Lowery and its progeny dictate remand of this action. See, e.g., Lowery, 483 F.3d 1184; Thibodeaux v. Paccar, Inc., ___ F. Supp. 2d ___, 2009 WL 27225 (M.D. Ala. Jan. 6, 2009) (Fuller, C.J.) (following Lowery and remanding wrongful death case); Yates v. Medtronic, Inc., 08-0337-KD-C, 2008 WL 4016599 at *10-*12 (S.D. Ala. Aug. 26, 2008) (same). As this Court has previously noted, the "measure of damages in an Alabama wrongful death claim is not the value of human life but rather the wrongfulness of the defendant's conduct." Thibodeaux, 2009 WL 27225 at *3. Here, the removing defendants' argument, at its heart, is a plea based on notion that the amount in controversy here is necessarily high because the case involves the loss of human life. This view is contrary to Alabama law. The real issue here is the wrongfulness of the defendant's conduct. That is the true measure of damages in this case and that is also something about which there is currently no evidence before this Court. The plea of the removing defendants for this Court to conclude that the amount in controversy exceeds $75,000 is merely a request that this Court speculate about the probable amount of a verdict in this case. That is precisely what Lowery prohibits. Thus, because this Court finds that MNA and MARC have failed to carry their burden of establishing the jurisdictional amount by a preponderance of the evidence, this case must be remanded.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED as follows:
1. This case is REMANDED to the Clayton Division of the Circuit Court of Barbour County, Alabama.
2. The Clerk is DIRECTED to take appropriate steps 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 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. 1983). 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 judg ment 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: , , , 69S.Ct. 1221, 1225-26, (1949); , , (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : 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).