Sierminski v. Transouth Financial Corp., No. 99-4371

Citation216 F.3d 945
Decision Date26 June 2000
Docket NumberNo. 99-4371
Parties(11th Cir. 2000) Bonnie SIERMINSKI, Plaintiff-Appellant, v. TRANSOUTH FINANCIAL CORPORATION, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Appeal from the United States District Court for the Southern District of Florida.

(No. 96-07402-CV-NCR), Norman C. Roettger, Jr., Judge.

Before TJOFLAT, RONEY and FAY, Circuit Judges.

RONEY, Circuit Judge:

This retaliatory discharge case was originally filed in state court and removed to federal court. The appeal raises the question, one of first impression in this Circuit, whether in determining the propriety of removal, the district court may consider evidence submitted after the removal petition is filed. We hold that the Court may consider such evidence, but only to establish the facts present at the time of removal. Plaintiff Bonnie Sierminski brought suit under Florida's Whistle Blower's Act after she was terminated from her employment with defendant Transouth Financial Corporation. Transouth removed the case to federal court. Sierminski appeals the district court's (1) denial of her motion to remand and (2) the grant of summary judgment to her employer. We affirm.

I. Removal Jurisdiction

On December 5, 1996, Sierminski filed a complaint in circuit court in Broward County, Florida alleging that defendant violated Florida's Whistle Blower's Act, 448.102, Florida Statutes, by terminating her employment. In the body of the complaint, she alleged damages in excess of $15,000 of the jurisdictional minimum for a damage claim in state circuit court. In the ad damnum clause she requested relief in the form of reinstatement, injunctive relief, compensatory damages and attorney's fees without specifying any monetary figure. On December 10, defendant filed a notice of removal alleging diversity jurisdiction under 28 U.S.C. 1332 & 1441. On December 13, Sierminski filed a motion for remand, arguing that defendant failed to prove the amount in controversy exceeds the minimum jurisdictional amount in federal court of $50,000.

After removal but before the district court ruled on the motion for remand, several events occurred. First, on December 20, defendant filed a response to plaintiff's motion in which defendant attached a declaration from the company's Director of Human Resources indicating plaintiff's salary and benefits information. The motion itself contained detailed calculations indicating that damages exceed the $50,000 jurisdictional amount. Second, defendant sent plaintiff requests to admit that her claim was not worth more than $50,000 or $75,000. Defendant requested two amounts because the statutory minimum was $50,000 at the time of the removal notice, and increased to $75,000 during the pendency of the proceedings. Third, in February 1997, defendant filed a motion to strike or deny Plaintiff's motion to remand as moot after plaintiff failed to respond to the requests.

Approximately two years after the removal notice was filed, in November 1988, the district court denied Sierminski's motion to remand in an Omnibus Order. The court recounted that defendant had provided it with calculations indicating the amount in controversy in fact exceeds $50,000. With regard to the request for admissions, the court determined that because plaintiff failed to respond to the requests within the time required by Federal Rule of Civil Procedure 36, the requests are deemed admitted. The question before us is whether the district court was limited to the evidence provided at the time of the petition for removal or whether it could properly rely on the information subsequently furnished to the court.

Removal is controlled by 28 U.S.C. 1441, which provides, in relevant part, that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States...." Such original jurisdiction exists, for example, if there is "diversity of citizenship," such as where the suit is between citizens of different states and the amount-in-controversy exceeds the statutorily prescribed amount. 28 U.S.C. 1332. Here, plaintiffs do not dispute diversity but question whether defendant has met its burden of proof with regard to the amount in controversy.

There is case law to guide us regarding defendant's burden of proof to support removal jurisdiction. See Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir.1994)(Where a plaintiff has specifically claimed less than the jurisdictional amount in state court, a defendant, to establish removal jurisdiction, must prove to a "legal certainty" that the plaintiff would not recover less than $50,000 if she prevailed); Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1356-57 (11th Cir.1996)(Where as in this case, damages are unspecified, the preponderance of the evidence standard applies), overruled on other grounds by Office Depot v. Cohen, 204 F.3d 1069 (11th Cir.2000). We have not addressed the question raised in this appeal, however, of what types of proof are appropriate for the district court to consider in determining whether defendant has satisfied that burden.

Plaintiff argues that defendant must submit evidence demonstrating the existence of federal jurisdiction at the time of the filing of the removal petition itself and cannot rely on post-petition evidence to support jurisdiction, citing precedent from this Circuit and cases from two other circuits. See Laughlin v. Kmart Corp., 50 F.3d 871 (10th Cir.1995); and Gaus v. Miles, Inc. 980 F.2d 564, 567 (9th Cir.1992).

Plaintiff's first assertion that the motions filed after plaintiff's motion for remand are not reviewable at all under this Court's decisions in University of South Alabama v. American Tobacco Co., 168 F.3d 405 (11th Cir.1999) and Coker v. Amoco Oil, 709 F.2d 1433 (11th Cir.1983) is unavailing. In University of South Alabama, the court held that the district court erred in deciding a complex question of personal jurisdiction prior to resolving the issue of subject matter jurisdiction. In this case, the subsequent motions considered by the district court were directly related to the amount in controversy issue before it. Coker is inapposite in that it addressed the type of evidence required to established diversity of the parties, not jurisdictional amount. The court held that with regard to whether the parties are diverse, removability should be determined "according to the plaintiff's pleading at the time of the petition for removal." 709 F.2d at 1440.

In Laughlin v. Kmart Corp., 50 F.3d 871 (10th Cir.1995), the Tenth Circuit sua sponte remanded a case to state court for lack of subject matter jurisdiction where neither plaintiff's petition nor defendant's notice of removal established on their face the requisite jurisdictional amount. The court refused to consider facts in defendant's jurisdictional brief or an economic analysis of plaintiff's damages claims prepared after the motion for removal. This is the only case cited or found which employs such a restrictive approach.

Plaintiff's reliance on the Ninth Circuit decision in Gaus as being in accord is erroneous. The holding in Gaus was based on the fact that the defendant produced no evidence before or after the filing of the petition to remove. The language that the evidence was insufficient to "satisfy [defendant's] burden of setting forth, in the petition itself, the underlying facts supporting its assertion that the amount in controversy exceeds $50,000," 980 F.2d at 567, was not necessary to the decision. This is made clear in a later Ninth Circuit opinion, Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373 (9th Cir.1997). In that case, defendant responded to the motion for remand by submitting declarations to show that the amount in controversy exceeded $50,000, and plaintiff's counsel expressly conceded as much. The court expressly distinguished these facts from those in Gaus where defendant "offered no facts whatsoever" to support its claim that the matter in controversy exceeded $50,000:

We understand Gaus to mean that where the plaintiff does not claim damages in excess of $50,000 and the defendant offers "no facts whatsoever" to show that the amount in controversy exceeds $50,000, then the defendant has not borne the burden on removal of proving that the amount in controversy requirement is satisfied.

116 F.3d at 376.

In Singer, the court adopted an approach for determining the amount in controversy that was first described in Allen v. R&H Oil Co., 63 F.3d 1326 (5th Cir.1995), a case in which plaintiffs alleged the district court improperly "aggregated" their claim for punitive damages as a "whole" in reaching the $50,000 amount in controversy requirement:

The Fifth Circuit has described an appropriate procedure for determining the amount in controversy on removal. The district court may consider whether it is "facially apparent" from the complaint that the jurisdictional amount is in controversy. If not, the court may consider facts in the removal petition, and may "require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal." The Fifth circuit agrees with our conclusion in Gaus that removal "cannot be based simply upon conclusory allegations" where the ad damnum is silent.

116 F.3d at 377 (citations omitted).

The Seventh Circuit has adopted a similar approach to the consideration of post-removal evidence. In Harmon v. OKI Sys., 115 F.3d 477 (7th Cir.1997), the district court relied upon post-removal answers to interrogatories to determine whether removal jurisdiction was proper. Plaintiffs argued that district courts are limited to evidence in the record when removal is sought. The court rejected this analysis, stating that "[t]he test should simply be whether the evidence sheds light on the situation which existed when the...

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