Charleston v. Horsley

• Decision Date: 08 August 2012
• Docket Number: CA 2:12-00183-KD-C
• Parties: JAMES CHARLESTON, Plaintiff, v. STEVE B. HORSLEY and J.B. HUNT TRANSPORT, INC., Defendants.
• Court: U.S. District Court — Southern District of Alabama

JAMES CHARLESTON, Plaintiff,

v.STEVE B. HORSLEY and J.B. HUNT TRANSPORT, INC., Defendants.

CA 2:12-00183-KD-C

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA NORTHERN DIVISION

Dated: August 8, 2012

REPORT AND RECOMMENDATION

This matter is before the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(B), on the plaintiff's motion to remand this matter to state court (Doc. 5), filed June 21, 2012; Defendant J.B. Hunt's response (Doc. 7), filed July 9, 2012; and the plaintiff's reply (Doc. 8), filed July 16, 2012. After careful consideration of the parties' briefing and the pleadings, and for the reasons discussed below, it is RECOMMENDED that the motion be GRANTED and that this matter be REMANDED to the Circuit Court of Marengo County, Alabama.

Background

The plaintiff filed his complaint, which fails to specify an amount of damages, on January 12, 2012. (See Doc. 5-1, complaint; Doc. 1, notice of removal, ¶ 7.) In an attempt to ascertain the damages sought and, more likely, determine whether this matter was removable to federal court, Defendant J.B. Hunt served four requests for admissions:

1. Admit that the Plaintiff is not seeking in excess of $75,000.00 for his damages in this case;

2. Admit that the Plaintiff will not request the jury to return a verdict in excess of $75,000 in this case;3. Admit that the Plaintiff will not attempt to execute on any judgment or verdict in this case to the extent that the judgment or verdict exceeds $75,000;

4. Admit that the Plaintiff's maximum recovery in this case will not exceed $75,000.

On March 6, 2012, the plaintiff responded to each request the same way: with a denial, stated after objecting to each request, stating the objections, and setting forth why the plaintiff could not admit or deny each request. (See Doc. 5-2.) The notice of removal was filed on March 13, 2012, one week after receipt of the plaintiff's responses. The motion to remand, filed more than three months after this case was removed to federal court, is nonetheless proper because the plaintiff is challenging the jurisdiction of this Court. See 28 U.S.C. § 1447(c) ("A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").

Discussion

1. The Removal Inquiry.

"Any civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court[,]" Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996) (citing 28 U.S.C. § 1441(a)), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000), or "become[s] removable[,]" 28 U.S.C. § 1446(b)(3); see Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 n.4 (11th Cir. 2010) (noting that cases that "initially [do] not satisfy federaljurisdictional requirements [can] become[] removable because the nature of the dispute changes").

A federal court may exercise diversity jurisdiction over all civil actions where the amount in controversy exceeds $75,000, exclusive of interest and costs, and the action is between citizens of different states. 28 U.S.C. § 1332(a)(1). Nevertheless, "[b]ecause removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly . . . . Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court." University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999); cf. D.M.C. Enters. Inc. v. Best McAllister, LLC, Civil Action No. 10-00153-CB-N, 2010 WL 3039477, at *2 (S.D. Ala. Aug. 4, 2010) ("Because it is conferred by statute, the right of removal is strictly construed to limit federal jurisdiction.") (citing Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996).

Therefore, J.B. Hunt, as the removing defendant,¹ must establish the propriety of removal under §§ 1441 and 1446 and, for that reason, "bears the burden of establishing the existence of federal jurisdiction." Brown v. Kabco Builders, Inc., Civil Action 07-0099-WS-C, 2007 WL 841690, at *1 (S.D. Ala. Mar. 15, 2007) (citing Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002)). J.B. Hunt's burden is to prove both complete diversity—that is, the plaintiff is diverse from every defendant, Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998) (citation omitted)—and that the amount in controversy more likely than not exceeds the $75,000 jurisdictional minimum. See Fitzgerald v. Besam Automated Entrance Sys., 282 F. Supp. 2d 1309, 1314 (S.D. Ala. 2003). Because J.B. Hunt has made a satisfactory showing (see Doc. 1, ¶¶2-4), which the plaintiff does not contest (see generally Docs. 5 & 8), that complete diversity exists, see Triggs, 154 F.3d at 1287, this Court need only address whether the amount in controversy is satisfied.

As alluded to above, Congress, through § 1446(b), has established a "bifurcated removal approach," Lee v. Lilly Trucking of Va., Inc., No. 2:12-cv-74-MEF, 2012 WL 960989, at *1 (M.D. Ala. Mar. 21, 2012), under which

a state court defendant may remove a case to federal court at two procedurally distinct moments in time. First, if it is facially apparent from the initial pleading that subject matter jurisdiction exists, § 1446(b)(1) provides the procedure for removal. See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010); Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). Such a removal must be accomplished "within 30 days after the receipt by the defendant . . . of a copy of the initial pleading setting forth the claim for relief upon which such action is based . . . ." § 1446(b)(1).² However, "[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . . . ." § 1446(b)(3); see also Lowery v. Ala. Power Co., 483 F.3d 1184 (11th Cir. 2007).³

Id. (footnotes added).

The requisite amount in controversy showing "turns on which provision of [§ 1446(b)] applies to a particular case[.]" Newton v. BP P.L.C., No. CA 1:12-00205-KD-C, 2012 WL 2417335, at *2 n.4 (S.D. Ala. June 8, 2012), report & recommendation adopted, 2012 WL 2401791 (S.D. Ala. June 26, 2012) (citations omitted); see also Rola v. Wal-Mart Stores, Inc., No. 6:11-cv-468-Orl-28DAB, 2011 WL 3156672, at *5-6 (M.D. Fla. June 29, 2011) (same) (citing Roe, 613 F.3d at 1061 n.4), report & recommendation adopted, 2011 WL 3111965 (M.D. Fla. July 26, 2011); cf. Wilson v. Chester Bross Constr. Co., No. CA 11-0020-KD-C, 2011 WL 1380052, at *12 (S.D. Ala. Apr. 12, 2011) (DuBose, J.) ("[T]he first paragraph of § 1446(b) provides a much wider entry into federal court than does the second paragraph of that section.") (citing Pretka, 608 F.3d at 760).

Here, the state-court complaint (Doc. 5-1), filed January 12, 2012, does not specify an amount of damages, and this matter was not removed to federal court until March 13, 2012 (see Doc. 1), which is less than one year after this matter was filed in state court and one week after J.B. Hunt received the plaintiff's responses to its requests for admissions (see Doc. 1-2); responses that J.B. Hunt contends are "other paper" that "indicat[e] the amount in controversy exceed[s] $75,000.00," the jurisdictional minimum. (Doc. 1, ¶ 9.) Accordingly, this is a second-paragraph Type 1 case, and the Court must follow "the analysis set forth in Lowery[.]" Rola, 2011 WL 3156672, at *6 (citing Wilson, 2011 WL 1380052, at *14); see also Brown v. Tanner Med. Ctr., No. 3:10-cv-316-TFM, 2010 WL 3328500, at *3 (M.D. Ala. Aug. 23, 2010) ("As this is a second-paragraph Type 1 case, the case is still governed by the analysis outlined in Lowery[.]"); Jackson v. Litton Loan Servicing, L.P., No. 3:09-cv-1165-MEF, 2010 WL 3168117, *4 (M.D. Ala. Aug. 10, 2010) ("Until the Eleventh Circuit changes the rule set forth in Lowery, this Court will continue to apply it when considering a notice ofremoval under the second paragraph of § 1446(b)."); Wilson, 2011 WL 1380052, at *14 n.9 ("Although courts have been critical of Lowery, until the Eleventh Circuit wholly revamps Lowery this Court must continue to insert a square peg into a round hole.") (citations omitted).

Under Lowery, "where damages are unspecified, the removing party bears the burden of establishing the jurisdictional amount by a preponderance of the evidence." 483 F.3d at 1208; see id. at 1211 ("If the jurisdictional amount is either stated clearly on the face of the documents before the court, or readily deducible from them, then the court has jurisdiction. If not, the court must remand. Under this approach, jurisdiction is either evident from the removing documents or remand is appropriate."); see also SUA Ins. Co. v. Classic Home Builders, LLC, 751 F. Supp. 2d 1245, 1250 (S.D. Ala. 2010) ("Lowery effectively requires that a second-paragraph removal be based on a document that cannot reasonably be construed other than as reflecting that more than $75,000 is in controversy."). While the court in Lowery further stated that "in assessing the propriety of removal, the court considers the documents received by the defendant from the plaintiff—be it the initial complaint or a later received paper—and determines whether that document and the notice of removal unambiguously establish federal jurisdiction[,]" id. at 1213 (emphasis added), a standard that seems to impose "a different and more rigorous burden than the preponderance of the evidence burden of Tapscott[,]" Exum v. State Farm Fire & Cas. Co., 821 F. Supp. 2d...