Opinion
Civil Action No. 21-cv-00884-CMA-STV
05-25-2021
BRUCE ELLSWORTH, Plaintiff, v. HOME DEPOT USA INC., and TRICAM INDUSTRIES, INC., Defendants.
ORDER DENYING MOTION TO REMAND
This matter is before the Court on Plaintiff's "Objection to Removal of State Court Action" (Doc. # 10), which the Court construes as a motion to remand. ("Motion"). The Motion is denied for the following reasons.
I. BACKGROUND
This is a product-liability case. Plaintiff alleges that he was injured when a ladder he was using collapsed beneath him. (Doc. # 5, ¶¶ 13-14). The ladder was allegedly manufactured by Tricam Industries, Inc. and sold by Home Depot USA Inc. (Doc. # 5, ¶ 13). Plaintiff is now suing Tricam and Home Depot, alleging negligence, breach of warranty, and strict liability. (Doc. # 5, ¶¶ 46-72). Plaintiff initially filed this lawsuit in state court before Defendants removed it to this Court on grounds of diversity jurisdiction.
Plaintiff now objects to removal. Under 28 U.S.C. § 1446, a defendant may not remove a case on diversity grounds unless the amount in controversy exceeds $75,000. Plaintiff argues that the amount in controversy is less than $75,000, and that this Court therefore lacks jurisdiction to hear the case. (Doc. # 10). Defendants counter that Plaintiff's pleadings and settlement demand show that the amount in controversy exceeds $75,000. (Doc. # 15). The Court agrees with Defendants.
II. LEGAL STANDARD
"[A] defendant seeking to remove a case to a federal court must file in the federal forum a notice of removal 'containing a short and plain statement of the grounds for removal.'" Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014) (quoting 28 U.S.C. § 1446(a)). When removal is based on diversity of citizenship, the notice must allege that the amount in controversy exceeds $75,000. 28 U.S.C. § 1446(c)(2)(B); Dart Cherokee Basin, 574 U.S. at 83-84.
"[A] defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold," and "the defendant's amount-in-controversy allegation should be accepted when not contested by the plaintiff." Dart Cherokee Basin, 574 U.S. at 87, 89. However, if "the plaintiff contests, or the court questions, the defendant's allegation," the defendant must prove the amount in controversy by a preponderance of the evidence. Id. at 89; 28 U.S.C. § 1446(c)(2)(B). There are several ways to meet this burden, including offering admissions the plaintiff made in state court; calculating the amount in controversy based on the types of damage alleged; or "by reference to the plaintiff's informal estimates or settlement demands." McPhail v. Deere & Co., 529 F.3d 947, 954 (10th Cir.2008) (quoting Meridian Security Ins. Co. v. Sadowski, 441 F.3d 536, 541-42 (7th Cir. 2006)).
III. ANALYSIS
As an initial matter, Plaintiff has failed to properly challenge removal. Plaintiff's argument against removal is exactly two sentences long: "The Plaintiff, Bruce Ellsworth, objects to the removal of the state court action because the amount in controversy is less than 75,000.00. Please see paragraph 9 of Plaintiff's Amended Complaint." (Doc. # 10). Paragraph 9 of the Amended Complaint reads, in its entirety: "The amount in controversy is less than $75,000." (Doc. # 5). This argument does not plausibly establish the amount in controversy.
"[W]hen a defendant's assertion of the amount in controversy is challenged . . . both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied." Dart Cherokee Basin, 574 U.S. at 88 (citing § 1446(c)(2)(B)). Plaintiff, however, provides no proof of the amount in controversy; he simply cites his own conclusory allegation that "[t]he amount in controversy is less than $75,000." (Doc. # 10). This statement is not sufficient to challenge jurisdiction.
Furthermore, even if this Court were to accept Plaintiff's threadbare argument as a proper jurisdictional challenge, that challenge would nevertheless fail because Defendants have demonstrated, by a preponderance of the evidence, that the amount in controversy exceeds $75,000.
Defendants point to two pieces of evidence to show that the amount in controversy exceeds $75,000: (1) the case cover sheet Plaintiff filed in state court, which states that the amount in controversy exceeds $100,000 (Doc. # 1-4); and (2) Plaintiff's $125,000 settlement demand (Doc. # 1-9). (Doc. # 15, ¶ 6). Both of these documents plausibly establish an amount in controversy greater than $75,000.
The cover sheet, which Plaintiff filed in state court along with his Complaint, states that Plaintiff is seeking more than $100,000 in damages: "This party is seeking a monetary judgment against another party for more than $100,000.00, including any penalties or punitive damages, but excluding attorney fees, interest and costs." (Doc. # 1-4, p. 2). Plaintiff's counsel signed and certified the cover sheet, stating: "based upon information reasonably available to me at this time, I certify that the value of this party's claims against one of the other parties is reasonably believed to exceed $100,000." (Doc. # 1-4, pp. 2-3). "[A] Colorado civil cover sheet constitutes adequate notice of the amount in controversy." Estrada v. Martin Marietta Materials, Inc., No. 20-CV-00375-REB-SKC, 2020 WL 1303287, at *2 (D. Colo. Mar. 19, 2020), (citing Paros Properties, LLC v. Colo. Casualty Ins. Co., 835 F.3d 1264, 1272 (10th Cir. 2016)). Further, "recent decisions from district courts in Colorado have found the representations of the Civil Cover Sheet sufficient to support removal." Id. Therefore, the representations in Plaintiff's cover sheet constitute convincing evidence that the amount in controversy exceeds $75,000.
Further, Plaintiff's counsel represented in a settlement demand letter that Plaintiff was seeking $125,000 to settle the case out of court. (Doc. # 1-9, p. 9). "[A] plaintiff's proposed settlement amount is relevant evidence of the amount in controversy," and "it is permissible for a district court to consider settlement offers when deciding the jurisdictional question." McPhail, 529 F.3d at 956 (internal quotation omitted). Thus, Plaintiff's settlement demand also suggests that the amount in controversy exceeds $75,000.
Taken together, the civil case cover sheet and Plaintiff's settlement demand establish, by a preponderance of the evidence, that the amount of controversy exceeds $75,000. Therefore, this Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1446.
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion (Doc. # 10) is DENIED.
DATED: May 25, 2021
BY THE COURT:
/s/_________
CHRISTINE M. ARGUELLO
United States District Judge