Rosener v. Menard, Inc.
| Decision Date | 15 November 2021 |
| Docket Number | 8:21-CV-341 |
| Citation | 571 F.Supp.3d 1116 |
| Parties | Kenneth ROSENER, Plaintiff, v. MENARD, INC., Defendant. |
| Court | U.S. District Court — District of Nebraska |
Michael J. Dyer, Thomas M. Rowen, Dyer Law Office, Omaha, NE, for Plaintiff.
Christopher J. Tjaden, Mary M. Schott, Evans, Dixon Law Firm, Omaha, NE, for Defendant.
1. Magistrate Judge Zwart's Findings and Recommendation, Filing 13, is adopted in its entirety; and
2. Plaintiff's Motion to Remand, Filing 9, is denied.
This case is before the court on the Motion to Remand (Filing No. 9) filed by Plaintiff Kenneth Rosener ("Plaintiff").
On September 1, 2021, Defendant Menard, Inc. ("Defendant") removed this lawsuit from the District Court of Douglas County, Nebraska. (Filing No. 1). In response and by motion, Plaintiff argues that this court lacks subject matter jurisdiction and requests that this matter be remanded to state court for adjudication. (Filing No. 9). Being fully advised, the court will deny Plaintiff's motion for remand.
Removal of civil actions from state court to federal court is authorized by 28 U.S.C. § 1441(a), 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 for the district and division embracing the place where such action is pending.
28 U.S.C. § 1441(a) ; see also Mensah v. Owners Ins. Co., 951 F.3d 941, 943 (8th Cir. 2020) () (internal citation omitted). The federal district courts have original jurisdiction over questions of federal law, pursuant to 28 U.S.C. § 1331, or where there is a complete diversity of parties, pursuant to 28 U.S.C. § 1332.
Defendant removed this action citing federal diversity jurisdiction under 28 U.S.C. § 1332(a). (Filing No. 1 at CM/ECF p. 1). Diversity jurisdiction has two requirements: complete diversity of the parties, and an amount in controversy that "exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). Both parties appear to agree that the first requirement is met—all parties are diverse. The notice of removal indicates that Plaintiff is a citizen of Nebraska, and Defendant is a corporate citizen of Wisconsin. (Filing No. 1 at CM/ECF p. 1, ¶ 4). The parties disagree as to whether the amount in controversy exceeds the jurisdictional threshold.
Defendant, the removing party, bears the burden establishing the existence federal jurisdiction. See, e.g., Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010). If a plaintiff contests a defendant's asserted amount in controversy, "both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied." Faltermeier v. FCA US, LLC, 899 F.3d 617 (8th Cir. 2018). On that standard, Defendant need only show, by a preponderance of the evidence, an arguable basis on which the fact finder "might legally conclude" that the amount in controversy exceeds $75,000. Gurrola v. Tyson Fresh Meats, Inc., 2014 WL 25594, at *2 (D. Neb. Jan. 2, 2014) (citing Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009) ); see also Hargis v. Access Capital Funding, LLC, 674 F.3d 783, 789 (8th Cir. 2012) () (citation omitted). The analysis does not ask court to calculate damages or assign with specificity a ceiling or floor to recovery of the pleaded general damages. "If access to federal district courts is to be further limited it should be done by statute and not by court decisions that permit a district court judge to prejudge the monetary value of an unliquidated claim." Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002).
Plaintiff has pleaded $11,000 in special damages (i.e., for past medical care). (Filing No. 1-1). Per the Nebraska state pleading rules, the general damages requested are not pleaded in specified amounts, Neb. Ct. R. Pldg. § 6-1108(a) (2021) (). Plaintiff demands general damages for both past and future pain and suffering, loss of enjoyment of life, and for the "inconvenience, annoyance, diminished qualify of life, and embarrassment." (Filing No. 1-1 at CM/ECF p. 3). Defendant argues that the ultimate trier of fact could legally conclude that the pleaded damages exceed $75,000. In support, Defendant cites other cases with similar injuries and damages alleged that resulted in recovery greater than the jurisdictional threshold. For example, the plaintiff in Mann v. Mobile Media, 8:07-cv-00479 (D. Neb December 13, 2007), pleaded just over $37,000 in special damages and the jury returned a verdict of $140,000. See id. at ECF Filing No. 156.
The other cases cited by Defendant support that premise, as well. (Filing No. 12 at CM/ECF pp. 4-5). Obviously, all such cases are fact specific, involving different people with varying injuries and circumstances. Here, Plaintiff may not ultimately recover more than $75,000, much less the amounts in Defendant's cited case law. However, the question before the court is not what the plaintiff will recover, but whether there is a legally cognizable basis that recovery could exceed $75,000. Hargis, 674 F.3d at 789. There is no statutory bar or common law rule implicated here that would preclude the fact finder from awarding damages in excess of the jurisdictional requirement. While the ultimate measure of damages may fall short of $75,000.00, it also may not. As such, based on a review of the relevant law, the notice of removal, and the facts pleaded, the court finds Defendant has carried its burden of showing the amount in controversy is arguably greater than $75,000.
"Once the removing party has established by a preponderance of the evidence that the jurisdictional minimum is satisfied, remand is only appropriate if the plaintiff can establish to a legal certainty that the claim is for less than the requisite amount." Bell, 557 F.3d at 956. Plaintiff has made no such showing. Indeed, Defendant invited Plaintiff to stipulate that the amount in controversy was less than $75,000 and Plaintiff, through counsel, declined. (Filing No. 12-2, 12-3). While not dispositive, Plaintiff's failure to concede that its damages do not exceed the $75,000 threshold, or to provide the court with any argument that there is a legal bar to such a recovery, undercuts his position. Plaintiff has failed to rebut Defendant's jurisdictional showing.
Thus, Plaintiff's motion should be denied, with the court retaining jurisdiction.
Accordingly,
IT THEREFORE HEREBY IS RECOMMENDEDi to the Honorable Brian C. Buescher, United States District Judge, pursuant to 28 U.S.C. § 636(b), that the motion to remand filed by the plaintiff (Filing No. 9) be denied in its entirety.
The parties are notified that failing to file an objection to this recommendation as provided in the local rules of this court may be held to be a waiver of any right to appeal the court's adoption of the recommendation.
To continue reading
Request your trial