Robinson v. Ge Capital Mortg. Services, Inc., Civil Action No. 96-A-719-N.

• Decision Date: 07 November 1996
• Docket Number: Civil Action No. 96-A-719-N.
• Citation: 945 F.Supp. 1516
• Parties: James ROBINSON, Plaintiff, v. GE CAPITAL MORTGAGE SERVICES, INC., et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

945 F.Supp. 1516

James ROBINSON, Plaintiff, v. GE CAPITAL MORTGAGE SERVICES, INC., et al., Defendants.

Civil Action No. 96-A-719-N.

United States District Court, M.D. Alabama, Northern Division.

November 7, 1996.

Jere Beasley, Thomas Methvin, Dorsey Morrow, Montgomery, AL, for plaintiff.

Peter S. Fruin, Montgomery, AL, John Bolus, Birmingham, AL, for defendants.

MEMORANDUM OPINION AND ORDER

ALBRITTON, District Judge.

This case is before the court on the Plaintiff's Motion to Remand. The case was removed from state court on the grounds of diversity of citizenship. 28 U.S.C. § 1332. The Plaintiff concedes that citizenship is diverse, and also that the amount in controversy exceeds $50,000. Therefore, the case is properly removable to this court, if timely done. The only basis for Plaintiff's Motion to Remand is his contention that removal was untimely. For the reasons discussed below, the court finds that the Motion to Remand is due to be denied.

FACTS

This suit was filed in the Circuit Court of Montgomery County, Alabama, on February 23, 1996. One of the five counts in the complaint was a contract claim under an insurance policy, demanding judgment against the Defendants in the amount of $1,555. The other four counts were tort claims demanding no specific amount, but stating simply that, "Plaintiff seeks compensatory damages, damages for breach of legal duty, punitive damages in excess of the minimum jurisdiction of this Court, plus court costs, expenses, and attorney's fees."

The Defendants were served on March 5, 1996.

On April 15, 1996, the Defendants served the Plaintiff with the following requests for admissions:

REQUEST NO. 3:

Admit that the full measure of "your" damages is $50,000 or less, exclusive of interest and costs, as a result of defendants' alleged fraud, breach of duty to disclose, suppression, breach of contract and/or bad faith failure to pay.

REQUEST NO. 4:

Admit that "you" cannot recover more than $50,000, whether compensatory or punitive damages, as a result of defendants' alleged fraud, breach of duty to disclose, suppression, breach of contract and/or bad faith failure to pay.

On April 24, 1996, Plaintiff served Defendants with "Plaintiff's Responses to Defendants' First Set of Requests for Admissions," in which the Plaintiff denied Requests 3 and 4. The Defendants filed their Notice of Removal on April 29, 1996, alleging that the Plaintiff's Response to Request for Admissions was the first paper received by the Defendants from which it could be ascertained that the case was one in which the amount in controversy exceeded $50,000 and which was, therefore, removable.

DISCUSSION

The Plaintiff contends that removal was untimely because it was not done within 30 days after service on the Defendants.

28 U.S.C. § 1446 requires removal from a state court to a federal court to be within 30 days after service of summons upon the defendant. The statute provides further, however, that "[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."

The Eleventh Circuit has held that "where the plaintiff has made an unspecified demand for damages in state court, a removing defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the $50,000 jurisdictional requirement." Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1359-60 (11th Cir.1996). It was obviously because of this requirement that the Defendants filed their Request for Admissions. Since the Plaintiff did not specify the amount which he claimed in four counts of the complaint, it was necessary for the Defendants to find out. The only thing that could be determined from the face of the complaint was that the claim was "in excess of the minimum jurisdiction" of the state circuit court, which is $10,000. Section 12-11-30(1), Code of Alabama. Promptly upon being told by the Plaintiff that more than $50,000 was being claimed, the Defendants removed the case.

A diverse defendant which is served with a state court complaint claiming an unspecified amount of damages must ascertain whether the amount in controversy exceeds $50,000 in order to successfully sustain a removal. One option for the defendant would be to remove the case within 30 days after service of the summons and allege, if it can be done in good faith, that the amount in controversy is thought to exceed $50,000. The plaintiff can then either agree, in which case jurisdiction is established, or take issue with that allegation, in which...