Opinion
5:09-CV-358 (CAR).
January 22, 2010
ORDER ON MOTION TO REMAND
This case is before the Court on Plaintiff's Motion to Remand [Doc. 9]. Plaintiff asserts that Defendant's removal of this action was improper and moves the Court to remand the case back to the Superior Court of Bibb County, Georgia, where the case was originally filed. Defendant filed a Response to the Motion [Doc. 11]. After review of the arguments of the parties and relevant authorities, the Court finds that Defendant has failed to present evidence of an amount in controversy sufficient to support subject matter jurisdiction in this Court. Accordingly, and for the reasons discussed below, Plaintiff's Motion to Remand [Doc. 9] is hereby GRANTED, and the case is remanded to the Superior Court of Bibb County, Georgia.
BACKGROUND
The present action arises under the laws of Georgia to recover disability benefits under a non-ERISA plan administered by Defendant. Plaintiff originally brought this suit in the Superior Court of Bibb County, Georgia. In her Complaint, Plaintiff seeks to "recover all benefits available under the benefits plan," "additional bad faith penalties," litigation costs and reasonable attorneys fees, and "further relief as the Court deems just and proper." (Doc. 1, Ex. 1). Upon review of the Complaint, Defendant filed a timely Answer and Notice of Removal [Doc. 1] of the action to this Court based on diversity of citizenship jurisdiction. Plaintiff then filed the present motion seeking remand and an award of payment of just costs, actual expenses, and attorneys fees incurred.
DISCUSSION
1. Subject Matter Jurisdiction
Federal courts have subject matter jurisdiction over state law claims only where the dispute is between citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. In this case, the amount in controversy is at issue because Plaintiff's Complaint does not specify an exact amount of damages. Where damages are unspecified, a defendant seeking removal based on diversity jurisdiction must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement of $75,000. Lowery v. Ala. Power Co., 483 F.3d 1184, 1208-09 (11th Cir. 2007). If the evidence available is insufficient to establish jurisdiction, "neither the defendants nor the court may speculate in an attempt to make up for the notice's failings." Id. at 1214-15. "The absence of factual allegations pertinent to the existence of jurisdiction is dispositive and, in such absence, the existence of jurisdiction should not be divined by looking to the stars."Id. at 1215. In Lowery, the Eleventh Circuit explained that in assessing whether removal is appropriate, the district court is limited to the "evidence available when the motion to remand is filed-i.e., the notice of removal and accompanying documents."Id. at 1214. Additionally, only accompanying documents received by the defendant from the plaintiff may be considered. Id. at 1215, n. 6.
To establish the jurisdictional amount here, Defendant attached the Affidavit of Beth Rutkowski (Doc. 1, Ex. 3), a document generated by Defendant. It would be improper for the Court to consider Defendant's Affidavit because the document was not received by Defendant from Plaintiff. See Innovative Health Wellness LLC v. State Farm Mut. Auto. Ins., No. 08-60786-CIV, 2008 WL 3471597 (S.D. Fla. Aug. 11, 2008) (holding that defendant improperly relied upon documents, such as affidavits, not supplied by the plaintiff to establish the jurisdictional amount (citing Lowery, 483 F.3d at 1211)). Because Plaintiff's Complaint does not seek specific damages and Defendant fails to show any other accompanying documents received by Plaintiff to show the requisite jurisdictional amount, the Court is left to speculate Plaintiff's damages. Accordingly, Defendant has not met the burden of showing the amount in controversy exceeds $75,000.
Defendant also attempts to rely on an October 1, 2009 e-mail between Plaintiff's counsel and Defendant's counsel to establish the jurisdictional amount. However, this e-mail was not submitted by Defendant at the time of removal and therefore may not be considered by the Court. See Lowery, 483 F.3d at 1213 n. 64 (holding that the Court must consider only the evidence in the record at the time the Motion to Remand was filed). Thus, the courts of the State of Georgia retain their jurisdiction over this dispute, and the case is REMANDED to the Superior Court of Bibb County, Georgia, for further proceedings.
2. Costs and Attorneys Fees
Plaintiff also seeks just costs and any actual expenses, including attorney fees, incurred as a result of the removal in accordance with 28 U.S.C. § 1447(c). An award of attorney's fees is in the sole discretion of the Court. Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005). In Martin, the United States Supreme Court held that "[a]bsent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal." Id. at 141. The Court must balance "the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, while not undermining Congress' basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied."Id. at 140.
In this case, the Court finds that Defendant did have an objectively reasonable basis for seeking removal, and therefore Plaintiff is not entitled to costs and attorneys fees. Id. at 139. In determining whether removal is objectively reasonable, a court should "consider the objective validity of the removal party's efforts[] at the time that party attempted to remove the case." Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004). In Plaintiff's Motion to Remand, the Court could not consider an October 1, 2009 e-mail written by Plaintiff's counsel to Defendant's counsel because the e-mail was not an accompanying document to Defendant's Notice of Removal. However, the e-mail set forth Plaintiff's counsel's estimate of damages in an amount exceeding $75,000. Defendant knew the contents of this e-mail before filing its Notice of Removal, and the Court finds that this e-mail is an objectively reasonable basis to seek removal. Therefore, the Court will not award costs and attorneys fees to Plaintiff.
CONCLUSION
After considering the arguments of the parties and the Affidavit attached to Defendant's Notice of Removal, the Court finds that Defendant has failed to show by a preponderance of the evidence that the amount in controversy meets the statutory requirement. Subject matter jurisdiction is therefore lacking in this case, and Plaintiff's Motion to Remand is GRANTED. The Court hereby ORDERS that this action be REMANDED to the State Court of Bibb County, Georgia.