Exum et al v. State Farm Fire and Casualty Company et al
MEMORANDUM OPINION AND ORDER that plaintiffs' 10 MOTION to Remand is DENIED; further ORDERING that defendant Ron Abernathy's 5 MOTION for Summary Judgment is GRANTED. Signed by Honorable Judge Mark E. Fuller on 10/31/11. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
GEORGE and BARBARA EXUM
STATE FARM FIRE AND CASUALTY
COMPANY, et al.,
CASE NO. 2:11-cv-206-MEF
(WO – Publish)
MEMORANDUM OPINION AND ORDER
This cause is before the court on a March 18, 2011 Notice of Removal (Doc. # 2) filed
by Defendants State Farm Fire and Casualty Company (“State Farm”) and Ron Abernathy
(collectively “Defendants”), and a Motion to Remand (Doc. # 10) filed by Plaintiffs George
and Barbara Exum (“Plaintiffs” or individually by name). The issues having been fully
briefed, and after careful consideration of the law and the arguments of counsel, the court
finds that Plaintiffs’ motion to remand is due to be denied.
On April 13, 2010, Plaintiffs filed suit against State Farm, Ron Abernathy, and several
fictitious defendants in the Circuit Court of Barbour County, Alabama. The Complaint (Doc.
# 2, Attach. 1) sets forth seven causes of action: breach of contract; bad faith handling of
Plaintiffs’ insurance claim; fraudulent misrepresenation in sale of insurance policy;
fraudulent suppression in sale of insurance policy; negligent or wanton misrepresentation or
suppression of terms of insurance policy; negligent failure to hire, train, or supervise
Abernathy; and wanton failure to hire, train, or supervise Abernathy. In the ad damnum
clause of the Complaint, Plaintiffs seek an unspecified amount of compensatory and punitive
The factual predicate for the Complaint arises out of the Plaintiffs’ 1996 purchase of
a homeowner’s insurance policy from State Farm for a lake house in Abbeville, Alabama.
Plaintiffs allege that Abernathy sold them this policy while acting as an agent for State Farm,
and that State Farm and Abernathy represented to them that the insurance policy would cover
Plaintiffs’ property, including a boat dock, for structural damage and loss of use. Plaintiffs
also allege that Defendants represented that the policy would pay the “repair/replacement
cost” of the property in the event of a loss. Based on these representations, Plaintiffs jointly
purchased the policy and paid all premiums due on the policy.
However, the undisputed evidence establishes that Abernathy was not involved in the
sale of the insurance policy at issue to Plaintiffs.1 Abernathy currently is an independent
contractor agent for State Farm, but he only began selling and servicing State Farm products
in June of 2000, several years after the sale of the policy at issue. (Abernathy Aff. ¶¶ 4-5.)
Indeed, the undisputed evidence before the Court establishes that Abernathy did not sell the
Plaintiffs’ policy, nor any other insurance policies prior to June of 2000.
The factual content of this paragraph is taken from Abernathy’s affidavit submitted in support
of the removal. (Abernathy Aff. ¶¶ 4-5 (Doc. # 2, Ex. B).) Plaintiffs have not submitted any evidence to
create a material issue as to any of the facts asserted in the Abernathy affidavit.
In February of 2009, very high winds caused significant property damage to Plaintiffs’
boat dock. Plaintiffs submitted a claim on their insurance policy and allege that State Farm
refused to honor Plaintiffs’ claim in violation of the terms of the policy.
Plaintiffs are citizens of Alabama. State Farm is a corporate citizen of Illinois, and
Abernathy is a citizen of Alabama. Plaintiffs served Abernathy and State Farm with the
Complaint in this action in April of 2010. At that time, State Farm and Abernathy could not
determine whether the amount in controversy was sufficient to support subject matter
jurisdiction in federal court. During discovery, Defendants attempted to obtain more
specificity regarding Plaintiffs’ alleged damages. In George Exum’s February 16, 2011
deposition, he testified that he and Barbara Exum later sold the home for $175,000, without
repair to the damaged dock. (G. Exum Dep. 25 (Doc. # 2, Ex. D).) However, Mr. Exum
testified emphatically that the house would have sold for between $325,000 and $375,000
but for the damage to the dock. (G. Exum Dep. 25, 98 (“If that dock had been fixed on that
house, that house would have brought $350,000 or $375,000.”).)2 Mr. Exum arrived at that
hypothetical selling price based upon the selling prices “other properties had been bringing”
and upon the representations of his agent regarding Plaintiffs’ property. (G. Exum Dep. 25,
In the midst of this line of questioning, Plaintiffs’ attorney confirmed that Plaintiffs were
indeed seeking damages for the lost value of the home. (G. Exum Dep. 98 (counsel stating on the record
that “part of that is what he testified to earlier about the loss of value when he sold it.”).)
Within thirty days of this deposition testimony, State Farm and Abernathy jointly filed
their Notice of Removal, invoking this Court’s subject matter jurisdiction pursuant to 28
U.S.C. § 1332(a). Defendants argue that Abernathy was fraudulently joined as a defendant
in this action and that the amount in controversy exceeded $75,000.
On April 13, 2011, within thirty days of the Notice of Removal, Plaintiffs filed their
Motion to Remand. In this motion, they argue only that the Defendants have failed to meet
their burden of establishing that the amount in controversy exceeds $75,000. Plaintiffs make
one passing reference to Defendants’ contention that Abernathy was fraudulently joined.
II. STANDARD OF REVIEW
“[F]ederal courts have a strict duty to exercise the jurisdiction that is conferred upon
them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). However,
“[f]ederal courts are courts of limited jurisdiction.” Burns v. Windsor Ins. Co., 31 F.3d 1092,
1095 (11th Cir. 1994); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375
(1994). Thus, with respect to cases removed to this court pursuant to 28 U.S.C. § 1441, the
law of the Eleventh Circuit favors remand where federal jurisdiction is not absolutely clear.
“[R]emoval statutes are construed narrowly; where plaintiff and defendant clash about
jurisdiction, uncertainties are resolved in favor of remand.” Burns, 31 F.3d at 1095. “In
evaluating a motion to remand, the removing party bears the burden of demonstrating federal
jurisdiction.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 n.4 (11th Cir. 1998)
(citing Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1373 (11th Cir. 1998)).
A state court defendant may remove a case to federal court at two procedurally distinct
moments in time. See 28 U.S.C. § 1446(b). First, if it is facially apparent from the initial
pleading that subject matter jurisdiction exists, the first paragraph of § 1446(b) 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); 28 U.S.C.
§ 1446(b). Such a removal must be accomplished “within thirty 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) (paragraph one). However, “[i]f the case stated by the
initial pleading is not removable, a notice of removal may be filed within thirty 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) (paragraph two).
Of course, federal diversity jurisdiction under § 1332(a) requires both complete
diversity and satisfaction of the requisite amount in controversy. See, e.g., Allapath Servs.,
Inc. v. Exxon Corp., 362 F.3d 739, 762 (11th Cir. 2004). A case does not become
“removable” until both conditions are present.
Defendants contend that Defendant
Abernathy’s fraudulent joinder was apparent from the face of the Complaint, but that the
amount in controversy requirement was “first . . . ascertained” during Plaintiff George
Exum’s deposition. § 1446(b) (paragraph two). In other words, the Complaint as initially
filed was not removable on its face and only became removable when Defendants possessed
the requisite jurisdictional information. Accordingly, this is a § 1446(b) paragraph two
Diversity of Citizenship Requirement
Fraudulent Joinder Standard
Section 1332(a) requires that the parties be “citizens of different States[.]” §
1332(a)(1); see also Legg v. Wyeth, 428 F.3d 1317, 1320 n.2 (11th Cir. 2005) (“Federal
diversity jurisdiction under [§ 1332(a)] requires ‘complete diversity’ – the citizenship of
every plaintiff must be diverse from the citizenship of every defendant.”).
However, even if “on the face of the pleadings, there is a lack of complete diversity,
an action may nevertheless be removable if the joinder of the non-diverse party . . . [was]
fraudulent.” Triggs, 154 F.3d at 1287 (citing Tapscott v. MS Dealer Service Corp., 77 F.3d
1353, 1355 (11th Cir. 1996)). “Fraudulent joinder is a judicially created doctrine that
provides an exception to the requirement of complete diversity.” Id. The courts have
recognized three situations in which joinder may be deemed fraudulent: (1) when there is no
reasonable possibility that the plaintiff can prove a cause of action against the resident (nondiverse) defendant; (2) when there is outright fraud in the plaintiff’s pleading of jurisdictional
facts; and (3) when there is no real connection to the claim and the resident (non-diverse)
defendant. Id.; see also Legg v. Wyeth, 428 F.3d 1317, 1325 (11th Cir. 2005).
As to the first type of fraudulent joinder, the only type at issue here, “[t]he plaintiff
need not have a winning case against the allegedly fraudulent defendant; he need only have
a [reasonable] possibility of stating a valid cause of action in order for the joinder to be
legitimate.” Triggs, 154 F.3d at 1287; see also Legg 428 F.3d at 1325 n.5 (stating that the
“potential for legal liability must be reasonable, not merely theoretical”) (internal quotation
“The determination of whether a resident defendant has been fraudulently joined must
be based upon the plaintiff’s pleadings at the time of removal, supplemented by any
affidavits and deposition transcripts submitted by the parties.” Legg, 428 F.3d at 1322
(quoting Pacheco de Perez, 139 F.3d at 1380). “The proceeding appropriate ‘for resolving
a claim of fraudulent joinder is similar to that used for ruling on a motion for summary
judgment under [Federal Rule of Civil Procedure 56].” Id. at 1322-23 (quoting Crowe v.
Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). Accordingly, all contested issues of
substantive fact and any uncertainties as to the current state of the law must be resolved in
the plaintiff’s favor. See id. at 1323; see also Cabalceta v. Standard Fruit Co., 883 F.2d
1553, 1561 (11th Cir. 1989).
Fraudulent Joinder Analysis
The court must determine whether there is any reasonable possibility that a state court
would determine that any one of Plaintiffs’ alleged theories of recovery states a viable cause
of action against Defendant Abernathy, the only non-diverse defendant.
On these uncontested facts, there simply is no possibility that Plaintiffs can state a
viable cause of action against Abernathy. See Legg, 428 F.3d at 1322-23 (fraudulent joinder
analysis resembles that of summary judgment); see also Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991) (stating in summary judgment context “the burden shift[s] to
the non-moving party to demonstrate that there is indeed a material issue of fact”). As to the
causes of action arising out of the 1996 purchase of their policy, Plaintiffs cannot sustain
claims against Abernathy because he was not at all involved in that transaction. (Abernathy
Aff. ¶¶ 4-5 (stating that he did not enter this line of work until 2000).) As to the other claims,
they necessarily fail for the reasons stated in Defendants’ submissions and relied-upon
authorities. Plaintiffs make no serious attempt to dispute this point other than a vague
assertion that Defendants have cited no support for their contention. That vague assertion
is flatly wrong. Accordingly, the Court finds that Plaintiffs fraudulently joined Defendant
Abernathy. Thus, his citizenship is due to be disregarded.3 Having disregarded Abernathy’s
citizenship and that of the “fictitious defendants” in accordance with law, the Court finds that
complete diversity of citizenship exists. Accordingly, the Court must address the amount in
For the same reasons stated herein, and because the court ultimately denies Plaintiffs’ Motion
to Remand, Defendant Abernathy’s Motion for Summary Judgment (Doc. # 5) is due to be granted.
Amount in Controversy Requirement
Section 1332(a) also requires that the “matter in controversy exceed[ ] the sum or
value of $75,000, exclusive of interest and costs . . . .” Id. When a defendant removes a case
under the second paragraph of § 1446(b) based upon the amount in controversy, the law in
the Eleventh Circuit regarding his or her burden is confused and confusing.
The court begins, but does not end, with this statement of law: Where the complaint
alleges unspecified damages, the removing party bears the burden of establishing the
jurisdictional amount by a preponderance of the evidence. Pretka v. Kolter City Plaza II,
Inc., 608 F.3d 744, 752 (11th Cir. 2010); Lowery v. Ala. Power Co., 483 F.3d 1184, 1207
(11th Cir. 2007) ; see also Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356-57 (11th
Cir. 1996) (“[W]e hold that where a 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 jurisdictional requirement.”
(emphasis added)), overruled on other grounds by Cohen v. Office Depot, Inc., 204 F.3d
1069, 1072 (11th Cir. 2000). At issue is the impact of Lowery on a § 1446(b) paragraph two
removing defendant’s burden of establishing the jurisdictional amount when faced with a
timely § 1447(c) motion to remand.
As stated above, this case was removed to federal court under the second paragraph
of § 1446(b), based upon Plaintiff George Exum’s deposition testimony, which Defendants
argue is the “other paper” by which it “first . . . ascertained” that the case was removable.
Under the second paragraph of § 1446(b), “a case becomes removable when three conditions
are present: there must be (1) ‘an amended pleading, motion, order or other paper,’ which
(2) the defendant must have received from the plaintiff (or from the court, if the document
is an order), and from which (3) the defendant can ‘first ascertain’ that federal jurisdiction
exists.” Lowery, 483 F.3d at 1213 n.63. The first two conditions are easily satisfied. As
stated above, deposition testimony qualifies as other paper, Lowery, 483 F.3d at 1213 n.62,
and the testimony was received by Defendants directly from Plaintiff George Exum. Thus,
only Lowery’s third condition for a proper § 1446(b) paragraph two removal remains at issue:
Whether Plaintiff George Exum’s deposition testimony establishes to a sufficient degree that
the damages in this case exceed $75,000.
The Lowery case appears to have elaborated a different and more rigorous burden than
the preponderance of the evidence burden of Tapscott. The Lowery court phrased the burden
this way: “[U]nder § 1446(b), in assessing the propriety of removal, the court considers the
document received by the defendant from the plaintiff . . . and determines whether that
document and the notice of removal unambiguously establish federal jurisdiction.” Id. at
1213. These apparently conflicting burdens have been a source of confusion in this circuit.
See, e.g., SUA Ins. Co. v. Classic Home Builders, LLC, No. 10cv388, 2010 WL 4664968, at
*4 (S.D. Ala. Nov. 17, 2010) (stating that Lowery’s “‘unambiguously establish’ standard
necessarily is more exacting than a preponderance of the evidence standard, and both of them
cannot simultaneously apply”); Allen v. Thomas, No. 3:10cv742, 2011 WL 197964, at *5
(M.D. Ala. Jan. 20, 2011) (Watkins, J.) (applying Lowery’s unambiguously establish standard
but questioning “the logic of the standard”). The question is whether these burdens are
capable of co-existence and, ultimately, which one to apply. In short, this court believes that
Tapscott’s preponderance of the evidence burden applies to a court’s substantive
jurisdictional inquiry and that Lowery’s unambiguously establish burden replaces Tapscott’s
burden when a plaintiff challenges the procedural propriety of a removal under the second
paragraph of § 1446(b) by timely moving to remand under § 1447(c).
When a plaintiff – as Plaintiff has done here – files motion to remand within thirty
days of a defendant’s notice of removal, see § 1447(c), the plaintiff is deemed to be
“challeng[ing] [both] the [procedural] propriety of the removal itself” as well as “whether
subject matter jurisdiction exists at all.” Lowery, 483 F.3d at 1213 n.64. However, when a
plaintiff’s motion to remand is not filed in accordance with § 1447(c), that plaintiff may
challenge only the court’s subject matter jurisdiction. See § 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 § 1446(a).” (emphasis added));
see also Triggs, 154 F.3d at 1291 n.9 (noting that “there is no time limit for motions to
remand that challenge subject matter jurisdiction”). In other words, a motion to remand may
challenge both the procedural propriety of the removal as well as the substantive inquiry of
whether subject matter jurisdiction exists, or it may challenge only the basic question of the
existence of subject matter jurisdiction. Lowery, 483 F.3d at 1194 (“Removal of state court
actions to federal court involves both jurisdictional and procedural considerations.”); see also
Pretka, 608 F.3d at 756.
The language found within the second paragraph of § 1446(b) – titled “Procedure for
removal” – is the source of Lowery’s arrival at an unambiguously establish standard.
Paragraph two of § 1446(b), unlike paragraph one, contains this language: “from which it
may first be ascertained that the case is one which is or has become removable[.]” § 1446(b)
(paragraph two). Although § 1446(b) has been described as legislating merely “the
[procedural] question of when an action is removable,” Lowery, 483 F.3d at 1212,
interpretation of the above-quoted clause, and specifically the word “ascertained,” has
resulted in the introduction of a substantive component to the second paragraph of §
1446(b).4 However, it is important to observe that the enlistment of this standard in Lowery
and the discussion of it in Pretka took place within larger discussions regarding the
procedural requirements of removal. The Lowery court revealed the unambiguously establish
standard and simultaneously placed in context its application: “Thus, under § 1446(b), in
assessing the propriety of removal . . . .” Id. at 1213. As stated above, § 1446 is a procedural
statute. And the Lowery court’s other uses of the phrase “propriety of removal” indicate that
This line of reasoning began with the Tenth Circuit, and made its way to the Fifth Circuit in
Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002) (stating that the word “ascertained” “seems
to require a greater level of certainty or that the facts supporting removability be stated unequivocally”
and then so holding). Bosky was employed by the Lowery court when it adopted the “unambiguously
establish” standard, Lowery, 483 F.3d at 1213 n.63, and it was cited approvingly by the Pretka court in
dicta on § 1446(b) paragraph two removals, Pretka, 608 F.3d at 760.
it contemplated the procedural propriety of removal. See id. at 1213-14 n.64 (stating that
where the plaintiff does not timely challenge the removal under § 1447(c), “the court is no
longer considering the propriety of the removal, but instead, whether subject matter
jurisdiction exists at all”). Finally, the facts of the Lowery case make clear that it involved
a procedural challenge: the plaintiffs in Lowery timely filed a motion to remand, id. at 118889, and therefore preserved arguments that the removal was procedurally improper under §
1446(b). Likewise, the Pretka court’s discussion of Bosky found itself confined to the
procedural context. Id. at 756, 760 (discussion found within heading entitled “III. The
Procedural Requirements for Removal”).
Due to the accepted reading of paragraph two of § 1446(b), which now includes a
substantive or quasi-substantive component, perhaps it is best not to think of § 1446(b) as
entirely procedural, or to emphasize the procedural versus substantive dichotomy.5 Perhaps
the means to reconcile the preponderance of the evidence standard of Tapscott and the
unambiguously establish standard of Lowery is to focus on whether the plaintiff is entitled
to the protections of § 1446(b). In other words, when the plaintiff complies with § 1447(c)
by filing a timely motion to remand, the plaintiff is then entitled to argue that the removal is
defective under § 1446(b), which includes application of the Lowery burden of proof instead
One may still construe § 1446(b) paragraph two’s apparently substantive burden of proof as
elaborating a procedural inquiry. If the document received by the defendant from the plaintiff does not
unambiguously establish that the case is or has become removable, then the thirty day window to file the
notice of removal is never triggered, and the notice of removal is untimely.
of the Taspcott burden of proof.6 However, when a plaintiff untimely moves to remand, the
law is clear that the court shall consider only whether subject matter jurisdiction exists at all,
which, in the context of assessing the removal of a complaint containing a demand for
unliquidated damages, is governed by a preponderance of the evidence standard.7 See §
1447(c); see also Lowery, 483 F.3d at 1213-14 n. 64 (citing Grubbs v. Gen. Elec. Credit
Corp., 405 U.S. 699, 702 (1972)); Tapscott, 77 F.3d at 1356-57.
These musings aside, the “unambiguously establish” burden found in Lowery governs
this § 1446(b) paragraph two removal. See Allen, 2011 WL 197964, at *5; see also Jackson
v. Litton Loan Servicing, LP, No. 09cv1165MEF, 2010 WL 3168117, at *4 (M.D. Ala. Aug.
10, 2010) (“Until the Eleventh Circuit changes the rule set forth in Lowery, this Court will
For example, imagine a case that is removed on documents not received from the plaintiff, but
the documents do establish the amount in controversy to a legal certainty. In such a case, if a plaintiff
does not timely file its motion to remand according to § 1447(c), the plaintiff has forfeited the procedural
protection of the second paragraph of § 1446(b) that the “other paper” be “recei[ved] by the defendant”
from the plaintiff. See Pretka, 608 F.3d at 755 (“The substantive jurisdictional requirements of removal
do not limit the types of evidence that may be used to satisfy the preponderance of the evidence
standard.”). But if the plaintiff timely moves to remand under § 1447(c), the motion should be granted
even though the documents establish the jurisdictional amount to a legal certainty. So it goes with the
“unambigously establish” burden of proof. When the plaintiff untimely moves to remand, the plaintiff
has forfeited the ability to rely upon the “first . . . ascertained” language of § 1446(b), the source of
Lowery’s burden of proof, and the court only considers whether subject matter jurisdiction exists under
Tapscott’s preponderance of the evidence standard.
This proposition – that a party’s burden of proof is determined by the timeliness of a filing –
has cousins in our legal system. For example, when an appellant fails to raise an issue before the district
court, and then first raises it on appeal, the appellate court reviews the appellant’s contention for plain
error. See, e.g., United States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). Likewise, a party who
timely files objections to a magistrate judge’s recommendation is entitled to de novo review of the
portions to which objection is made. See 28 U.S.C. § 636(b).
continue to apply it when considering a notice of removal under the second paragraph of §
Amount in Controversy Discussion
The other paper on which Defendants rely – Plaintiff George Exum’s deposition
testimony – unambiguously establishes that the amount in controversy requirement has been
satisfied. Plaintiffs mistakenly believe that Defendants have removed this case solely on
allegations in the Notice of Removal. (Mot. to Remand 4-5.) Plaintiffs miss the mark
because the salient document – the “other paper” – upon which this removal is based is the
transcript of George Exum’s deposition testimony in which he states that State Farm’s failure
to pay for the repair or replacement of the dock caused Plaintiffs to lose between $150,000
to $200,000 on the sale of the house. Mr. Exum was not throwing out a number at the
prodding of defense counsel. See Allen, 2011 WL 197964, at *5-6. Rather, Mr. Exum’s
unambiguous statement was based upon the selling prices of other houses in the area and
upon his agent’s representations to him. The statement clearly establishes that the amount
in controversy exceeds $75,000. This is true even if only half of those damages are fairly
attributable to each plaintiff. While the Court may not aggregate the claims of multiple
plaintiffs, it may aggregate a single plaintiff’s claims resting on various theories of liability.
Thus, the most conservative estimate of the breach of contract (Count I) damages yields an
amount in controversy of $75,000 per Plaintiff for that count alone. Adding $.01 (or even
the equivalent of one Somali schilling) for the combined value of all of the other claims –
including the request for punitive damages – results in an amount in controversy per plaintiff
that exceeds $75,000. See Roe v. Michelin, N.A., 613 F.3d 1058, 1064 (stating that “when
a district court can determine, relying on its judicial experience and common sense, that a
claim satisfies the amount-in-controversy requirements, it need not give credence to a
plaintiff’s representation that the value of the claim is indeterminate”). Thus, Defendants
have presented evidence sufficient to unambiguously establish the amount in controversy for
diversity jurisdiction exists in this case.
Plaintiffs’ affidavits do not change the court’s analysis. As part of their submissions
in support of their Motion to Remand, Plaintiffs include a joint Affidavit (Doc. # 13),
wherein they agree to stipulate that they will enter into an irrevocable agreement to limit the
damages they seek in this action to $74,000. Such a stipulation does not support remand
because it has no bearing on the salient issue, namely, the amount in controversy at the time
the suit was filed and removed. “A court's analysis of the amount-in-controversy requirement
focuses on how much is in controversy at the time of removal, not later.” Pretka, 608 F.3d
at 751; see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 n.13 (11th Cir. 1994)
(“Jurisdictional facts are assessed on the basis of plaintiff’s complaint as of the time of
removal.” (citing Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939))). Thus, “events
occurring after removal which may reduce the damages recoverable below the amount in
controversy requirement do not oust the district court's jurisdiction.” Poore v. Am.-Amicable
Life Ins. Co. of Tx., 218 F.3d at 1287, 1290–91 (11th Cir. 2000), overruled on other grounds
by Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 641 (11th Cir. 2007); see also Leonard v.
Enterprise Rent A Car, 279 F.3d 967, 972 (11th Cir. 2002) (“If jurisdiction was proper at that
date [the date of removal], subsequent events, even the loss of the required amount in
controversy, will not operate to divest the court of jurisdiction.”). While post-removal
evidence is permissible, “the jurisdictional facts that support removal must be judged at the
time of the removal, and any post-petition affidavits are allowable only if relevant to that
period of time.” Sierminski v. Transouth Finan. Corp., 216 F.3d 945, 949 (11th Cir. 2000)
(internal quotes omitted). Put another way, the court may consider information submitted
after the case has been removed only if it informs its determination of whether subject matter
jurisdiction existed at the time of removal. See, e.g., Brooks v. Pre-Paid Legal Servs., Inc.,
153 F. Supp. 2d 1299, 1300-1302 (M.D. Ala. 2001); Hill v. MONY Life Ins. Co., 75 F. Supp.
2d 1328, 1329-1330 (M.D. Ala. 1999); Moss v. Voyager Ins. Cos., 43 F. Supp. 2d 1298, 1303
(M.D. Ala. 1999). While George Exum’s deposition testimony clearly sheds light on his
expected damages at the time the lawsuit was commenced and removed, the promises of
George and Barbara Exum regarding limitations on their damages from the date they
executed their joint Affidavit in April of 2011, after the notice of removal was filed, have no
relevance to the issues before the Court.
For the reasons set forth above, it is hereby ORDERED that Plaintiffs’ Motion to
Remand (Doc. # 10) is DENIED. It is further ORDERED that Defendant Ron Abernathy’s
Motion for Summary Judgment (Doc. # 5) is GRANTED.
DONE this 31st day of October, 2011.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?