Seaborn v. Michelin North America, Inc. et al

Filing 31

MEMORANDUM OPINION AND ORDER, granting 30 Motion to Withdraw; and the Clerk of the Court is directed to terminate the Motion to Remand doc. 12 . Signed by Hon. Chief Judge Mark E. Fuller on 2/10/09. (Attachments: # 1 appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION S H A N E SEABORN, Administrator of the E sta te of GUSTAVO PEREZ LOPEZ, d e c ea se d , P L A IN T IF F , v. M IC H E L IN NORTH AMERICA, INC; e t al., DEFEN DANTS. ) ) ) ) ) ) ) ) ) ) ) )

C A S E NO.: 2:08cv305-MEF

(W O )

M E M O R A N D U M OPINION AND ORDER N o w pending before this Court is the Motion to Remand (Doc. # 12) filed on May 1, 2 0 0 8 by Plaintiff and Plaintiff's Notice of Withdrawing His Motion to Remand (Doc. # 30) f ile d on February 9, 2009, which this Court construes as a motion for leave to withdraw the m o tio n to remand. It is hereby ORDERED that the motion to withdraw (Doc. # 30) is G R A N T E D and the Clerk of the Court is DIRECTED to terminate the Motion to Remand (D o c . # 12). Arguing that this Court has subject matter jurisdiction over this action pursuant to 28 U .S .C . § 1332(a), Defendants Michelin North America, Inc. ("MNA") and Michelin A m e ric a s Research & Development Corporation ("MARC") removed this action from the C la yto n Division of the Circuit Court of Barbour County, Alabama pursuant to 28 U.S.C. § 1 4 4 1 (a ) on April 21, 2008. A federal court is a court of limited of jurisdiction. Kokkonen v . Guardian Life Ins., 511 U.S. 375, 377 (1994). A federal court is authorized to entertain

o n ly certain actions which the Constitution or Congress has authorized it to hear. Id. "It is to be presumed that a cause lies outside this limited jurisdiction, ..., and the burden of e sta b lis h in g the contrary rests upon the party asserting jurisdiction,...." Id. (citations

o m itte d ). At any time, the Court may review sua sponte whether it possesses subject matter ju ris d ic tio n over an action before it. See, e.g., Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 4 0 5 , 409-11 (11th Cir.1999) (outlining a federal court's duty to sua sponte consider its own su b jec t matter jurisdiction); Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th C ir. 1985) (same); Employers Mut. Cas. Co. v. Evans, 76 F. Supp. 2d 1257, 1259 (N.D. Ala. 1 9 9 9 ) ("[A] federal court is obligated to inquire into subject matter jurisdiction sua sponte w h e n e v e r it may be lacking."); see also Insur. Corp. of Ireland, Ltd. v. Compagnie des B a u x ite s de Guinee, 456 U.S. 694, 704 (1982). For this reason, the lack of a pending motion to remand does not prevent the Court from remanding this case if the Court finds subject m a tte r jurisdiction to be lacking. The parties should be mindful that a plaintiff may not create subject matter jurisdiction w h ere it does not exist by consent or concession. Thus, Plaintiff's statement in his February 9 , 2009 filing (Doc. # 30) is insufficient as a matter of law to create subject matter ju ris d ic tio n . Consistent with other recent decisions and Lowery v. Alabama Power Co., 483 F .3 d 1184 (11th Cir. 2007), cert. denied, 128 S. Ct. 2877 (2008), this Court intended to re m a n d this case in the near future because it is not satisfied on the record before it that it has s u b je c t matter jurisdiction over this action. Indeed, the Court will remand this case to the

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C ircu it Court for Barbour County, Alabama if Plaintiff does not file a stipulation on or before F e b ru a ry 13, 2009, indicating that he is now seeking and was seeking at the time the lawsuit w a s filed and removed damages in excess of $75,000.00, exclusive of costs and fees. DONE this the 10th day of February, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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