McGee v. Sentinel Offender Servs., LLC

• Decision Date: 06 June 2013
• Docket Number: No. 11–14077.,11–14077.
• Citation: 719 F.3d 1236
• Parties: Hills McGEE, Plaintiff–Counter Defendant–Appellant, v. SENTINEL OFFENDER SERVICES, LLC, Defendant–Counter Claimant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

719 F.3d 1236

Hills McGEE, Plaintiff–Counter Defendant–Appellant,

v.SENTINEL OFFENDER SERVICES, LLC, Defendant–Counter Claimant–Appellee.

No. 11–14077.

United States Court of Appeals, Eleventh Circuit.

June 6, 2013.

John B. Long, A. Montague Miller, Tucker, Everitt, Long, Brewton & Lanier, PA, John C. Bell, Jr., Bell & Brigham, Augusta, GA, for Plaintiff–Counter Defendant–Appellant.

James B. Ellington, Thomas Lee Cathey, Hull Barrett, PC, Augusta, GA, for Defendant–Counter Claimant–Appellee.

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

Before TJOFLAT and BLACK, Circuit Judges, and MOTZ,^* District Judge.

PER CURIAM:

I.

On October 23, 2008, Hills McGee pled “no contest” to two misdemeanor offenses in the State Court for Richmond County, Georgia. The trial court sentenced McGee to consecutive prison sentences of twenty-four months, but suspended the execution of the sentences, instead placing him on probation for twenty-four months. As a condition of his probation, McGee had to pay a $39 monthly Probation Supervision Fee to Sentinel Offender Services, LLC (“Sentinel”), a private probation services company that contracted with Richmond County to provide supervision for probationers.¹

In the summer of 2009, McGee stopped reporting to his probation officer and had failed to pay $186 in overdue supervision fees. Sentinel therefore petitioned the trial court to revoke McGee's probation. On January 13, 2010, the court held a revocation hearing. Prior to the hearing, McGee signed a form stating that he waived the assistance of counsel. At the hearing, the probation officer established McGee's noncompliance with the conditions of his probation—failure to report to his probation officer and to pay the $39 monthly fee. The court revoked McGee's probation and imposed an alternative sanction. If McGee immediately paid the $186 arrearage due Sentinel, his probation would be terminated. If he failed to pay the $186, McGee would be confined in the county jail for two months. McGee did not pay the $186 and was sent to jail.

On January 22, 2010, McGee filed a petition for a writ of habeas corpus, pursuant to O.C.G.A. § 9–14–1 et seq., in the Superior Court of Richmond County, seeking release from confinement. On January 28, 2010, the court granted McGee's petition, holding that McGee lacked the mental competence to waive his right to counsel at his probation revocation hearing. The court found that the continued confinement of McGee would be unlawful and ordered his release.

More than a month after his release, on March 8, 2010, McGee received a letter from a Sentinel employee assigned to oversee his probation. The letter stated that McGee had failed to report to his probation officer and that he must pay $186 to Sentinel at his next reporting date on March 16, 2010. On April 1, 2010, McGee received another letter from Sentinel that stated that McGee had failed to report to his probation officer on March 16, 2010. It went on to say that if McGee failed to report on April 12, 2010, Sentinel would petition the court to revoke his probation. On April 16, 2010, in response to these letters, McGee filed a suit against Sentinel in the Superior Court of Richmond County. The suit was initiated with a document styled “Petition to Hold Sentinel Offender Services, LLC in Willful Contempt of Court and Petition for Damages” (the “complaint”). That same day, the court issued a temporary restraining order against Sentinel and ordered it to show cause why the court should not hold it in willful contempt of court for seeking the revocation of McGee's probation after the court had issued a writ of habeas corpus effectively terminating his probation.²

The complaint contained two counts. Count I requested that the court hold Sentinel in criminal contempt of court for resisting the Superior Court's order granting McGee a writ of habeas corpus and “using its position as a probation company to attempt to collect a debt that is not owed or due by threatening to have [McGee] jailed without bond.” Record, no. 1–1, at 4. Count I also sought an injunction that would forbid Sentinel from taking any action against McGee based on what McGee described as his “voided conviction.” Count II, which was brought as a class action for damages,³ alleged that Sentinel engaged in a pattern of racketeering activity as defined by the Georgia Racketeer Influenced and Corrupt Organization Act (RICO), O.C.G.A. § 16–14–1 et seq. Count II asserted that Sentinel had attempted to commit two acts of racketeering activity, specifically two acts of theft by deception, by sending McGee the March 8, 2010, and April 1, 2010, letters. Finally, in two paragraphs of seemingly out-of-place allegations, Count II also requested that the court declare O.C.G.A. § 42–8–100(f)⁴ invalid under the Georgia constitution.

On April 23, 2010, Sentinel removed the suit to the United States District Court for the Southern District of Georgia pursuant to the diversity jurisdiction granted to federal courts by the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(2). McGee v. Sentinel Offender Servs., LLC,No. 110–054 (S.D.Ga. Apr. 23, 2010). McGee moved the court to remand the case to state court, but the court denied his motion.

On April 29, 2010, upon the consent of the parties, the District Court issued a permanent injunction forbidding Sentinel from taking any action to collect any fee or to have any arrest warrant issued that would interfere with the habeas relief granted McGee by the Superior Court of Richmond County.⁵ In the same order, the court acknowledged that McGee had withdrawn his petition for contempt. In its answer to the complaint, Sentinel asserted a counterclaim seeking a declaration affirming the constitutionality of O.C.G.A. § 42–8–100(g). On February 14, 2011, Sentinel moved the District Court for summary judgment, asserting that McGee's RICO claim and constitutional challenge to O.C.G.A. § 42–8–100(g) failed as a matter of law. On the same day, McGee moved the court for partial summary judgment on his constitutional challenge to O.C.G.A. § 42–8–100(g).

The District Court granted Sentinel's motion and denied McGee's. The court found that the RICO claim failed to present a genuine issue for trial because McGee failed to show any evidence that Sentinel intended to commit theft by deception in sending the letters. Sentinel produced sworn statements from Trinity Claros, the Sentinel employee assigned to oversee McGee's probation; Crystal Page, the Area Manager for Sentinel's Augusta office; and Mark Contestabile, Sentinel's Chief Operating Officer, all asserting that the letters were sent because of an error in their computer system and not with the intent to create a false impression or to collect any money from McGee after he had obtained habeas corpus relief. In assessing McGee's response, the District Court noted that McGee offered no affidavit, deposition, or other citation to the record to suggest Sentinel intended to deceive him; he merely denied the statements offered by Sentinel. The court then found that McGee had failed to meet his burden on summary judgment to demonstrate a genuine issue for trial with respect to the element of intent, holding that “no reasonable juror could find Sentinel specifically intended to create a known false impression in Plaintiff and committed the predicate act of attempted theft by deception.” Record, no. 55, at 15.

Though it was not alleged as such, the District Court treated McGee's constitutional challenge as a separate claim for relief and dismissed it. The court observed that Georgia law requires that the Attorney General of Georgia be given notice whenever a Georgia statute's constitutionality is challenged and that this requirement is jurisdictional in nature. Finding that the Attorney General had not been given notice of this suit, the court held that it lacked subject matter jurisdiction to consider the constitutionality of O.C.G.A. § 42–8–100(g). The court entered final judgment in favor of Sentinel and closed the case.

McGee appeals the District Court's judgment granting summary judgment in favor of Sentinel.

II.

A.

First, McGee attacks the District Court's subject matter jurisdiction by asserting that his case was improperly removed from state court because Sentinel did not satisfy its burden of establishing the $5,000,000 amount-in-controversy requirement under CAFA.⁶See28 U.S.C. § 1332(d)(2). We review de novo whether a district court properly exercised removal jurisdiction. Henson v. Ciba–Geigy Corp., 261 F.3d 1065, 1068 (11th Cir.2001).

A party seeking to remove a case to federal court bears the burden of establishing federal jurisdiction. Evans v. Walter Indus., Inc., 449 F.3d 1159, 1164 (11th Cir.2006). Typically, we look to the complaint to establish the amount in controversy. McGee's complaint, however, does not plead a specific amount of damages. In this scenario, “the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional requirement.” Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.2001). A removing defendant may rely on its own affidavits, declarations, or other documentation to establish the amount in controversy. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 755 (11th Cir.2010).

Here, Sentinel submitted a declaration from its Chief Operating Officer indicating that “Sentinel has collected $5,675,639.20 in supervision fees from individuals who have been convicted of misdemeanor or ordinance violations in the State of Georgia and are presently under probation supervised by Sentinel,” as well as $2,086,811.08 in electronic-monitoring fees and $183,049.00 in drug-screening fees from the same population, for a total of $7,945,499.28. Record, no. 1–4, at 1–2. McGee asserts that this declaration is insufficient because it is “too sweeping.” Appellant's Br. at 15. McGee attempts to equate...