Gilkes v. Phila. Express Tr., Civil Action 4:20-cv-235
| Decision Date | 01 September 2021 |
| Docket Number | Civil Action 4:20-cv-235 |
| Parties | LESTER GILKES, Plaintiff, v. PHILADELPHIA EXPRESS TRUST; HAPAG-LLOYD USA, LLC; and MARINE TRANSPORT MANAGEMENT, Defendants. |
| Court | U.S. District Court — Southern District of Georgia |
This matter is before the Court on Plaintiff Lester Gilkes's Motion to Remand, (doc. 22), and Defendants Philadelphia Express Trust, Hapag-Lloyd USA, LLC, and Marine Transport Management's Motion to Dismiss, (doc. 9). Lester Gilkes initially filed this action in the State Court of Chatham County after serving as a longshoreman on a vessel with an individual who tested positive for COVID-19. (Doc. 1-6, pp 6-7.) Gilkes alleges that Defendants knew about the seaman's positive test result but did not inform Gilkes before he started working on the vessel. (Id. at p 7.) All three Defendants removed the case to this Court, (doc. 1), and filed a Motion to Dismiss, (doc. 9). Gilkes then filed a Motion to Remand the case back to state court. (Doc. 22.) For the reasons explained more fully below, the Court GRANTS Plaintiff's Motion to Remand, (id.), and therefore lacks jurisdiction to rule on Defendants' Motion to Dismiss.
Plaintiff is a resident of Savannah, Georgia, and works as a longshoreman at the Georgia Ports Authority. (Doc. 1-6, p. 4.) On July 11 and 12, 2020, Plaintiff “was working as a longshoreman aboard the vessel Philadelphia Express.” (Id. at p. 6.) According to the Complaint, Defendants, collectively, “own, manage, operate, direct, and crew . . . the Philadelphia Express.” (Id. at p. 5.) Specifically, the Complaint alleges that Philadelphia Express Trust “was the registered owner of” the Philadelphia Express and the vessel “was operated, captained and crewed by” Hapag-Lloyd USA, LLC. (Id. at p. 6.)
The Complaint alleges that, while Plaintiff was working aboard the Philadelphia Express, a seaman onboard the vessel “was known by Defendants to have COVID-19, ” but the vessel was not flying its “quarantine flag” as it was required to do. (Id. at p. 7.) “The longshoremen [aboard the vessel] were never advised of this situation” until “[a]fter the vessel left the port, [at which time] it called back in to advise that it had a COVID-19 positive seaman [who had been] on board while the longshoremen were working the vessel.” (Id.) The Complaint does not state whether Plaintiff ever came into direct contact with the COVID-19 positive seaman but, at some point, Plaintiff “was prohibited from working and required to [get] a COVID-19 test.” (Id.) Plaintiff alleges that because of this he “suffered lost wages” and “was and is stigmatized in his work as a potential COVID-19 carrier.” (Id.)
Plaintiff filed his Complaint in the State Court of Chatham County on August 21, 2020, asserting a single cause of action for fraud and deceit against all three Defendants, which he alleges entitles him to damages for mental pain and suffering as well as attorney's fees. (Id. at p. 8.) He specifically asserts that Defendants have acted in bad faith, been stubbornly litigious and/or caused him unnecessary trouble and expense, which he asserts entitles him to recover attorney's fees and expenses pursuant to O.C.G.A. § 13-6-11. (Id.) While, at the close of the Complaint, Plaintiff prays generally for an award of “an appropriate sum to compensate him for his injuries and damages” and the recovery of “reasonable attorneys' fees and litigation expenses, ” (id.), earlier in the Complaint, in conjunction with his assertion that jurisdiction and venue are proper in the state court, Plaintiff states that he, “in no event, seeks more than $74, 750.00 in this complaint.” (Id. at p. 6.)
On September 30, 2020, Defendants removed the case to this Court pursuant to 28 U.S.C. § 1332, based on their claim that the amount in controversy exceeds the sum of $75, 000.00 (exclusive of interest and costs) and the action is between citizens of different states. (Doc. 1, p. 2.) Once in this Court, Defendants filed a Motion to Dismiss. (Doc. 9.) Plaintiff filed a Response to this Motion, (doc. 14), and Defendants jointly filed a Reply, (doc. 18). About a month after removal, Plaintiff's attorney sent an email offering to settle Plaintiff's case and another related case “for $70, 000 each.” (Doc. 24-1, p. 2.) Plaintiff then filed a Motion to Remand, (doc. 22), and Defendants jointly filed a Response, (doc. 24).
Actions initially filed in a state court may be removed to federal court in two circumstances: (1) where the claim presents a federal question or (2) where diversity jurisdiction exists. 28 U.S.C. § 1441(a)-(b). “Diversity jurisdiction exists where the suit is between citizens of different states and the amount in controversy exceeds the statutorily prescribed amount, in this case $75, 000.” Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). If a case is originally filed in state court and removed to federal court by the defendant, the defendant then “bears the burden of proving that federal jurisdiction exists.” Id. If a defendant fails to carry this burden, the Court must remand the suit for lack of subject-matter jurisdiction. Id.; see also 28 U.S.C. § 1447. In this circuit, “there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.” Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (emphasis added), abrogated on other grounds by Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224 (2007).
In 1994, the United States Court of Appeals for the Eleventh Circuit held, in Burns v. Windsor Insurance Company, that, in cases where the complaint demands a specific amount of damages, a “defendant must prove to a legal certainty that plaintiff's claim” will meet the amount-in-controversy requirement for federal diversity jurisdiction. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). However, removal is ultimately a creation of statute and, in 2011, Congress passed the Federal Courts Jurisdiction and Venue Clarification Act, which altered the standard of proof. See Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, § 103, 125 Stat. 758, 762 (). Following that amendment, 28 U.S.C. § 1446(c)(2) provides that:
If removal of a civil action is sought on the basis of the jurisdiction conferred by section 1332(a), the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy, except that-(A) the notice of removal may assert the amount in controversy if the initial pleading seeks . . . a money judgment, but the State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded; and (B) removal of the action is proper on the basis of an amount in controversy asserted under subparagraph (A) if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the amount specified in section 1332(a).
28 U.S.C. § 1446(c)(2). The Supreme Court of the United States recognized that this updated statute altered the standard of proof, explaining that “when a defendant's assertion of the amount in controversy is challenged . . . both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 88 (2014). In this case, Defendants based their removal on section 1332(a), (doc. 1, p. 2), and Georgia law permits recovery of damages in excess of the amount Plaintiff stated, in his Complaint, that he seeks. See O.C.G.A. § 9-11-54(c)(1) (). Other district courts in this circuit have determined that, when state law allows for damages exceeding the amount demanded, then the “preponderance of the evidence” standard applies and not the pre-amendment “legal certainty” standard. See, e.g., Heath v. ILG Techs., LLC, __ F.Supp.3d ___, 2020 WL 6889164, at *4 (N.D.Ga. 2020) (); Harris v. Aghababaei, 81 F.Supp.3d 1278, 1281 (M.D. Ala. 2015) (); David v. USAA Cas. Ins. Co., No. 5:21cv27-MW/MJF, 2021 WL 1152934, at *1 (N.D. Fla. Mar. 24, 2021). Accordingly, the Court will apply the preponderance of the evidence standard here.
In Response to Plaintiff's Motion to Remand, Defendants argue that they have carried their burden of showing that the amount in controversy exceeds $75, 000. (Doc. 24, pp. 8-15.) They also argue that “Plaintiff waived his jurisdictional arguments when he sought affirmative relief from this Court.” (Id. at pp. 15-17.) The Court will examine the issue of waiver first. Then, the Court will address whether the amount in controversy exceeds the jurisdictional requirement.
Defendants argue that Plaintiff has waived any jurisdictional argument by seeking affirmative relief after removal. (Id.) Specifically, they assert that Plaintiff first sought affirmative relief in his Response to Defendants' Motion to Dismiss, by asking the Court to grant him leave to amend his Complaint. (Id. at p. 15.) They also assert that Plaintiff's...
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