Opinion
CASE NO. 2:08-CV-806-WKW.
February 18, 2009
MEMORANDUM OPINION AND ORDER
Before the court is a Motion to Remand (Doc. # 4), filed by Plaintiffs William Stokes and Kelli Burgess (collectively "Plaintiffs"). Defendants Clayton Homes, CMH Homes, Inc., and CMH Manufacturing, Inc. ("Defendants"), submitted a Response to Motion to Remand (Doc. # 7). For the reasons set forth below, the court finds that the Motion to Remand (Doc. # 4) is due to be granted.
I. FACTS AND PROCEDURAL HISTORY
On or about August 9, 2008, Plaintiffs filed this lawsuit in the Circuit Court of Covington County, Alabama, alleging federal and state law claims arising from their purchase of a manufactured home from Defendants. (Compl. 4 (Ex. to Doc. # 5).) For each claim — breach of express warranty, breach of implied warranties, violation of the Magnuson-Moss Warranty Act ("Act"), 15 U.S.C. § 2301, and three counts of negligence — Plaintiffs seek unspecified damages. (Compl. 5-8.) In particular, on their claim brought pursuant to the Act, Plaintiffs seek damages for "loss of value, loss of use, and mental anguish" (Compl. ¶ 19), but do not quantify the value of these damages.
On October 2, 2008, Defendant CMH Manufacturing, Inc., removed the case to federal court on the basis of the complaint, predicating subject matter jurisdiction and removal on 28 U.S.C. §§ 1331, 1441, and 1446. (Notice Removal (Doc. # 5).) Specifically, CMH Manufacturing, Inc., alleges that the court may exercise federal question jurisdiction over the complaint because one of the counts alleges a cause of action under the Act. (Notice Removal 3.) The other two named Defendants joined in the removal. (Notice Removal 3 (Ex. C).) Defendants contend that the $50,000 jurisdictional amount-in-controversy requirement under the Act is satisfied. (Notice Removal 3.) Contesting this assertion, Plaintiffs filed the present Motion to Remand within thirty days of removal and, in support of their motion, submitted the affidavit of their counsel, Thomas B. Albritton, Esq. ("Mr. Albritton"). (Albritton Aff. (Ex. A to Doc. # 4).)
II. STANDARD OF REVIEW
"[F]ederal courts have a strict duty to exercise the jurisdiction that is conferred upon 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." Burns, 31 F.3d at 1095.
III. DISCUSSION
The Act implicates the court's federal question jurisdiction under 28 U.S.C. § 1331. There is generally no congressionally-mandated amount in controversy requirement when subject matter jurisdiction is based upon a federal question stemming from a violation of the Constitution, laws, or treaties of the United States. See § 1331. However, the Act specifies that unless there is more than $50,000 at issue, any action brought under the Act is to be heard in state court. 15 U.S.C § 2310(d)(3)(B) ("No claim shall be cognizable [in federal district court] if the amount in controversy is less than the sum or value of $50,000 (exclusive of interest[] and costs) computed on the basis of all claims to be determined in this suit.").
As grounds for their Motion to Remand, Plaintiffs contend that Defendants have not met their burden of establishing that the Act's $50,000 jurisdictional amount-in-controversy requirement is met. "When the complaint does not claim a specific amount of damages, `the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement.'" Allen v. Toyota Motor Sales, U.S.A., Inc., 155 F. App'x 480, 481 (11th Cir. 2005) (quoting Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)). For purposes of assessing the amount-in-controversy requirement under the Act, a court may consider "economic losses relating to the purchase of the home[,] . . . as well as personal injury damages arising only from §§ 2304(a)(2), (a)(3), or 2308," Grant v. Cavalier Mfg., Inc., 229 F. Supp. 2d 1332, 1336 (M.D. Ala. 2002) (citing Hughes v. Segal Enters., Inc., 627 F. Supp. 1231, 1239 (W.D. Ark. 1986)). Under the Act, the court cannot consider any damages sought for the state law claims. See Ansari v. Bella Auto. Group, Inc., 145 F.3d 1270, 1272 (11th Cir. 1998) (per curiam) ("[T]he amount in controversy for purposes of Act § 2310(d)(3)(B) does not include damages flowing from any pendent state law claim brought by a plaintiff.").
The Eleventh Circuit, albeit in an unpublished opinion, applied the preponderance-of-the-evidence standard when evaluating whether the removing defendant had established that the Act's amount-in-controversy requirement was satisfied where the complaint contained unspecified damages, Allen, 155 F. App'x at 481; see also Anderson v. Lotus Cars USA, Inc., No. 8:06-cv-1944, 2007 WL 1229105 at *1 (M.D. Fla. Apr. 26, 2007) (same). No contrary argument having been advanced, this court shall do the same.
In their Notice of Removal, Defendants assert that the base price of the home at issue was $59,918.24, which alone satisfies the jurisdictional requirement of the Act (Notice Removal 3), but this would only be the correct measure of the amount in controversy if Plaintiffs indicated that they were seeking a refund of the purchase price of their home. Plaintiffs have made no such assertion.
If they had, it is not certain that they would recover more than $50,000, since the refund amount would be reduced by the value that Plaintiffs received from their use of the home. See Ready v. River Birch Homes, No. 07-0031-WS, 2007 WL 841740, at *4 (S.D. Ala. Mar. 15, 2007) (Regarding a mobile home purchased for $58,277.39, "Plaintiffs do not automatically, necessarily stand to gain $58,277.39 or more if they prevail on a claim for refund based upon breach of warranty.").
Not only have Plaintiffs not claimed a refund for the purchase price of their home, but they also have asserted that, "[w]hen they filed the [] Complaint, [they] did not intend to seek damages in an amount that exceeds $49,999.00, exclusive of interest and costs, on the claims brought pursuant to the . . . Act," (Albritton Aff. ¶ 2), and that they "will not seek nor will they accept, damages or a judgment [for violation of the Act] in an amount that exceeds $49,999.00" (Albritton Aff. ¶ 3).
In response to this affidavit, Defendants argue that Plaintiffs' "post-removal" affidavit "cannot divest the [c]ourt of jurisdiction." (Resp. 2.) Defendants are correct that a plaintiff cannot reduce his claim after removal to defeat federal court jurisdiction. (Resp. 4 (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90 (1938).) Here, in the complaint, the amount of damages requested under the Act is unspecified, which makes the amount in controversy sufficiently unclear to deter the court from exercising jurisdiction. The affidavit serves only to clarify the amount in controversy by providing that, when the complaint was filed, less than $49,999 was sought under the Act (Albritton Aff. ¶ 2), and there is no indication that the damages sought changed prior to the date when the action was removed. Cf. Hardy v. Jim Walter Homes, Inc., No. 06-0687-WS-B, 2007 WL 1889896, at *3 n. 6 (S.D. Ala. June 28, 2007) (noting that, "[u]nder firmly entrenched Circuit precedent, [post-removal] affidavits are properly considered to clarify the amount in controversy at the time of removal" in diversity actions where damages sought in the complaint are unspecified). On this record, the affidavit neither repudiates nor reduces the jurisdictional amount sought in the removed complaint. To the contrary, the court finds that the affidavit clarifies that, at the time the complaint was removed, the amount in controversy was less than $50,000. Accordingly, the court finds that Defendants' sole argument for rejecting the affidavit is not persuasive and that Defendants have not met their burden of showing by a preponderance of the evidence that more than the jurisdictional amount under the Act has been sought. Consequently, the court cannot exercise jurisdiction on the basis of federal question jurisdiction.
Under the well-pleaded complaint rule, "jurisdiction exists only when a federal question is affirmatively and distinctly present on the face of the plaintiffs' properly pled complaint." Ferrari v. Am. Home Products Corp., No. 02-CV-1300-CAP, 2002 WL 34459574 at *3 (citing Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998).)
In their response, Defendants raise an additional and separate jurisdictional argument for why removal is appropriate. (Resp. 6.) Citing Mr. Albritton's affidavit, Defendants now claim that there is more than $75,000 at issue on all claims, which is sufficient to invoke the court's diversity jurisdiction, see 28 U.S.C. § 1332. (Resp. 6.) Specifically, Defendants point to Mr. Albritton's attestations that, while damages are capped under the Act (Albritton Aff. ¶ 2), the damages sought on the state law claims "exceed[] $50,000" (Albritton Aff. ¶ 3). (Resp. 6.) Defendants assert that § 1332's amount-in-controversy requirement is met by adding together $49,999 (the amount Defendants say Plaintiffs seek under the Act) and $50,000 (the minimum amount Plaintiffs seek on their state law claims). (Resp. 6.) In other words, Defendants assert that Mr. Albritton's affidavit provides an additional jurisdictional basis upon which to base removal. (Resp. 6.)
That there is complete diversity of citizenship between Plaintiffs and Defendants is not in dispute.
Assuming, without deciding, that Defendants properly raised a new and independent basis for removal in their responsive brief, the issue concerns the propriety of the removal based upon diversity jurisdiction, which turns on the sufficiency of the evidence supporting the amount in controversy presented by Plaintiffs' claims.
There is no challenge to the manner in which Defendants raise this alternative ground for removal. The sole basis for removal was predicated on federal question jurisdiction, but after receipt of Mr. Albritton's affidavit, Defendants asserted diversity jurisdiction as an additional ground for removal. See Lowery v. Ala. Power Co., 483 F.3d 1184, 1214 n. 66 (11th Cir. 2007) ("[I]n some limited circumstances, a defendant may effectively amend a defective notice of removal upon receipt of additional evidence that supplements the earlier-filed notice. For example, such a situation might arise where, after filing an insufficient notice of removal but before remand is ordered, the defendant receives a paper from the plaintiff that would itself provide sufficient grounds for removal.").
When a plaintiff challenges removal pursuant to 28 U.S.C. § 1447(c) in a timely motion to remand, the plaintiff is specifically challenging the propriety of removal itself on the basis of either a procedural defect or lack of subject-matter jurisdiction. Lowery v. Ala. Power Co., 483 F.3d 1184, 1213 1215 n. 64 (11th Cir. 2007). In this case, the affidavit from Mr. Albritton, see supra note 5, and the notice of removal constitute the universe of documents that the court may consider. See Lowery, 483 F.3d at 1213-14. This evidence and the notice of removal must " unambiguously establish federal jurisdiction." Id. at 1213 (emphasis added); see also id. at 1213 n. 63 ("[T]he documents received by the defendants must contain an unambiguous statement that clearly establishes federal jurisdiction." (emphasis added)). The jurisdictional amount must be "either stated clearly on the face of the documents before the court, or readily deducible from them," Id. at 1211, or the case must be remanded. "[N]either the defendants nor the court may speculate in an attempt to make up for the notice's failings." Id. at 1214-15.
If the plaintiff challenges removal after the thirty-day period for a timely remand motion, the issue is no longer the propriety of removal, "but instead, whether subject matter jurisdiction exists at all." Lowery, 483 F.3d at 1214 n. 64.
The two statements upon which Defendants rely in Mr. Albritton's affidavit — that no more than $49,999 is sought for the claim under the Act, and that Plaintiffs seek at least $50,000 on their state law claims — do not clearly or unambiguously show that more than $75,000 is at issue in this case. (Albritton Aff. ¶ 3.) The court declines to impute meaning to these statements which Plaintiffs, as masters of their complaint, did not intend, by interpreting Plaintiffs' statements as an indication that they are seeking $99,999 or more ($49,999 under the Act and $50,000 or more under state law) in damages. First, Defendants assert that the affidavit represents that Plaintiffs "intend to seek damages in the amount of $49,999 pursuant to the [Act]." (Resp. 6.) That, however, is not what the affidavit says; it says that "damages in an amount that exceeds $49,999" are not being sought. (Albritton Aff. ¶ 2.) The affidavit does not provide that Plaintiffs are seeking $49,999 under the Act, and nothing less. Thus, the affidavit is ambiguous as to whether it is stating a maximum amount of damages or merely declaring that the Act's $50,000 threshold has not been met and the amount in controversy has not been unambigiously established, as required under Lowery, 483 F.3d at 1213 n. 63. ("[T]he documents received by the defendants must contain an unambigious statement that clearly establishes federal jurisdiction."). Second, Defendants omit reference to the attestation that "Plaintiffs only filed a claim under [the Act] for the purposes of recovering attorney's fees." (Albritton Aff. ¶ 3.) In Ansari, the Eleventh Circuit held that attorney's fees are costs within the meaning of § 2310(d)(3)(B), and are not included in the amount in controversy. 145 F.3d at 1271. Plaintiffs' attestation cuts against Defendants' argument that $49,999 is a plausible number to be used in the jurisdictional equation above because Mr. Albritton's affidavit creates an ambiguity as to the amount in controversy.
Defendants simply have not satisfied their burden under Lowery of showing that § 1332's amount in controversy requirement is unambiguously met. Accordingly, the court cannot exercise jurisdiction and must remand the case.
IV. CONCLUSION
For the foregoing reasons, it is ORDERED:
1. Plaintiffs' Motion to Remand (Doc. # 4) is GRANTED.
2. This case is REMANDED to the Circuit Court of Covington County, Alabama.
3. The Clerk of the Court 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).