Opinion
Civil Case No. 5:12-cv-00188-JMH
02-13-2013
HENRIETTA J. SHEARER, Plaintiff, v. OHIO CASUALTY INSURANCE CO. AND AMERICAN FIRE AND CASUALTY GROUP, Defendants.
MEMORANDUM OPINION & ORDER
This matter is before the Court on Plaintiff Henrietta Shearer's motion to remand this case to Fayette Circuit Court. (D.E. 21). The time has passed for Defendants to file a response, and the Court interprets Defendants' lack of response to Plaintiff's motion as an indication that they have no objection to a remand. With this in mind, this matter is now ripe for review.
Currently, this case is before this Court pursuant to diversity jurisdiction under 28 U.S.C. § 1441(b). Pursuant to 28 U.S.C. § 1447(c), "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." § 1447(c). In support of her motion to remand, Plaintiff has stipulated that she will not seek more than $74,999.99 in damages, thereby removing this case from federal diversity jurisdiction. (D.E. 21).
In the past, the Sixth Circuit has held that a plaintiff's post-removal stipulation to less than the amount in controversy requirement does not require remand back to state court. See Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868 (6th Cir. 2002). However, the Rogers decision was abrogated by Powerex Corp. v. Reliant Energy Servs., 551 U.S. 224 (2007), in which the Supreme Court held that "a case can be properly removed and yet suffer from a failing in subject-matter jurisdiction that requires remand." Id. at 232. District courts within the Sixth Circuit have relied on the Powerex decision to grant a plaintiff's motion to remand if the plaintiff stipulates that her damages will not exceed $75,000. See Baldori v. Delta Air Lines, Inc. , No. 1:11-CV-102, 2011 WL 1212069, at *3-4 (W.D. Mich. Mar. 29, 2011) (holding that the plaintiff's stipulation that his damages will not exceed $75,000 deprived the court of jurisdiction and entitled the court to remand the case to state court); Captain v. Wal-Mart Stores East, Inc., No. 10-501-HJW-JGW, 2010 WL 4875702, at *1 (S.D. Ohio Oct. 7, 2010) (granting the plaintiff's motion to remand in light of the plaintiff's stipulation that her total damages cannot exceed $75,000); Stratton v. Konecranes, Inc., No. 5:10-CV-66-KSF, 2010 WL 2178544, at *3 (E.D. Ky. May 28, 2010) (denying remand where the defendant's showing that the amount in controversy more likely than not exceeded $75,000 was not rebutted, and the plaintiff refused to stipulate to a lesser amount of damages).
Accordingly, IT IS ORDERED:
1) that Plaintiff's motion to remand (D.E. 21) is GRANTED;
2) this matter is REMANDED to Fayette Circuit Court pursuant to 28 U.S.C. § 1447(c);
3) that the Clerk shall STRIKE THIS ACTION FROM THE ACTIVE DOCKET.
Signed By:
Joseph M. Hood
Senior U.S. District Judge