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concluding that "a plaintiff's denial of a request for admission which read ‘you do not claim in excess of $75,000 as total damages in this case’ was not sufficient to support jurisdiction"
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CASE NO. 2:10-cv-0881-MEF.
February 7, 2011.
Steven G. McGowan, Stephen G. McGowan LLC, Dothan, AL, for Plaintiff.
Glenn Edwin Ireland, Justin Isaac Hale, Carr, Allison, Pugh, Howard, Oliver Sisson, Birmingham, AL, for Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Margaret Barker ("Barker") allegedly suffered injuries when three bottles of detergent fell from a shelf in Defendant Dollar General's store and hit Barker on the head. Barker brought suit in the Circuit Court of Barber County, Alabama against Dollar General alleging negligence under Alabama law. (Doc. # 1 Ex. 2). Dollar General removed the case to this Court. (Doc. # 1).
On November 11, 2010, Barker filed a Motion to Remand. (Doc. #9). In its motion which is presently before this Court, Barker argues that the amount in controversy in this case is less than $75,000, and therefore that this Court lacks jurisdiction pursuant to 28 U.S.C. § 1332. For the reasons set forth in this Memorandum Opinion and Order, the Court finds that the Motion to Remand (Doc. # 9) is due to be GRANTED.
I. FACTUAL PROCEDURAL HISTORY
Barker was injured on July 3, 2008 when three bottles of washing detergent fell from a shelf in Dollar General and hit her on the head. (Doc. #1 Ex. 2). The single count complaint alleges the following injuries and damages resulted from the incident: a left occipital scalp hematoma and possible laceration, migraines resulting from the head injury, expenses for medicine, physician's fees, hospital charges, nursing services, and therapy services, pain and suffering, mental anguish and emotional stress. Id. Barker also seeks damages for future medical expenses and residual pain. Id. As set out in her complaint, Barker demands judgment against Dollar General in the sum of $75,000 plus costs. Id.
On May 28, 2010, Dollar General served Barker with requests for admission asking her to admit that the amount in controversy in the case does not exceed $75,000. (Doc. #1 Ex. 1 at 22). On September 20, 2010, Barker denied Dollar General's request for admission, saying "Plaintiff is uncertain as her medical treatment is ongoing." (Doc. #1 Ex. 1 at 30). Barker also produced medical bills totaling $4,117.93. Based only on Barker's response and the bills produced through discovery, Dollar General removed the case to this Court on October 19, 2010. (Doc. # 1).
Barker subsequently filed a Motion to Remand arguing that this Court lacks subject matter jurisdiction over the proceeding because the amount in controversy does not exceed $75,000 as required by 28 U.S.C. § 1332(a). (Doc. # 9). Dollar General contends that Barker's express denial that the amount in controversy does not exceed $75,000 contradicts her complaint's ad damnum clause and demonstrates that the amount in controversy actually exceeds $75,000. (Doc. #11).
Barker is a resident of Alabama. (Doc. # 1). Dollar General is a corporation organized under the laws of Kentucky with its principal place of business in Tennessee. Id. The parties do not contest that complete diversity exists in this case.
II. LEGAL STANDARD
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.
Title 28, United States Code § 1332 confers on federal courts jurisdiction in civil actions "in which the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states." A party may remove the case if it originally could have been brought in federal court. See 28 U.S.C. § 1441(a). If the case is not removable from the face of the complaint, the defendant may file a notice of removal within 30 days of receiving some "other paper" which makes the case removable. See 28 U.S.C. § 1446(b).
However, the non-removing 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.
When a plaintiff specifies an amount of damages in the state court complaint, the "defendant must prove to a legal certainty that plaintiff's claim must exceed" the jurisdictional amount. Id. at 1096. When demonstrating that remand is proper, the "defendant's burden of proof must be a heavy one" because the plaintiff's assessment of her damages "when it is specific and in a pleading signed by a lawyer, deserves deference and a presumption of truth." Id. at 1095.
Recent Eleventh Circuit decisions in Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744 (11th Cir. 2010) and Lowery v. Ala. Power Co., 483 F.3d 1184 (11th Cir. 2007) apply a preponderance of the evidence standard to the amount in controversy analysis when the complaint fails to specify the damages award sought. However, the Eleventh Circuit's decision in Burns — which requires the defendant to demonstrate to a legal certainty that the amount in controversy exceeds $75,000 — remains controlling where the plaintiff's complaint claims a specific prayer for relief. 31 F.3d at 1092; Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356-57 (11th Cir. 1996).
III. DISCUSSION
Because Barker stated a specific amount of damages in her complaint, the legal certainty standard from Burns controls in this case. Burns, 31 F.3d at 1095. Therefore, to avoid remand in this case, Dollar General must prove to a legal certainty that Barker's damages necessarily exceed $75,000. See id. In its notice of removal, Dollar General relies on Barker's denial of the request for admission to prove that the amount in controversy does exceed $75,000 in this case. Barker's denial does not prove to a legal certainty that her damages would exceed $75,000. In fact, Barker herself seems to concede that because of her ongoing medical care, even she is unsure about the amount of her damages. Dollar General also contends that the medical bills Barker produced indicate that the amount in controversy exceeds $75,000. While these documents are not before the Court, Dollar General says that they indicated damages of only $4,117.93. Even in combination with Barker's response to the request for admissions, this evidence does not satisfy the standard set out in Burns.
Additionally, this Court has found that a plaintiff's denial of a request for admission does not "admit the opposite of the proposition offered for admission, but rather is simply to establish that the matter is in dispute." Harmon v. Wal-Mart Stores, Inc., No. 3:08-cv-309, 2009 WL 707403, at *4 (M.D. Ala. March 16, 2009) (Fuller, CJ). In Harmon, this Court found that a plaintiff's denial of a request for admission which read "you do not claim in excess of $75,000 as total damages in this case" was not sufficient to support jurisdiction. Id. at *1, 4. The same must be true here — Barker's denial of the request for admission is not sufficient to support the exercise of jurisdiction in this case.
Barker seems to contend in her Motion to Remand, as does Dollar General, that a preponderance of the evidence standard applies in this case, citing Lowery v. Alabama Power Co. (Doc. # 9) (asserting that "in cases such as this one, where the Complaint does not specify the amount of damages sought," a preponderance of the evidence standard applies). However, as Barker notes two paragraphs later, Barker's complaint clearly does state an amount of damages. Therefore, the preponderance standard is inapplicable, and because Dollar General has not satisfied its burden of establishing to a legal certainty that the amount in controversy exceeds $75,000, this case is due to be remanded.
For the foregoing reasons, it is hereby ORDERED that:
1. Plaintiff's Motion to Remand (Doc. # 9) is GRANTED.
2. This case is REMANDED to the Circuit Court of Barbour County, Alabama.
3. The Clerk is DIRECTED to take appropriate steps to effect the remand.
DONE this the 7th day of February, 2011.
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 1 365 1 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. 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. 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." , , 368 (11th Ci r. 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. , 486 U.S. 196, 201, , , (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); , 890 F.2d 371, 376 (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).