Lee et al v. Lilly Trucking of Virginia, Inc. et al
MEMORANDUM OPINION AND ORDER denying 6 MOTION to Remand. Signed by Honorable Judge Mark E. Fuller on 3/21/2012. (Attachments: # 1 Civil Appeals Checklist)(wcl, )
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
ANTHONY G. LEE and
JEFF D. LEE,
LILLY TRUCKING OF VIRGINIA,
INC., et al.,
CASE NO. 2:12-cv-74-MEF
[WO – Do Not Publish]
MEMORANDUM OPINION AND ORDER
This cause is before the Court on a January 25, 2012 Notice of Removal (Doc. # 1)
filed by Defendants Lilly Trucking of Virginia, Inc., Dennis C. Lilly, and Sharon L. Lilly
(collectively “Defendants”), and a Motion to Remand (Doc. # 6) filed by Plaintiffs Anthony
G. Lee and Jeff D. Lee (“Plaintiffs”). 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 July 26, 2011, Plaintiffs, citizens of Alabama for diversity purposes, filed suit
against Defendants, citizens of Florida and/or Virginia, in the Circuit Court of Autauga
County, Alabama. The Complaint (Doc. # 1-3) alleges fraud and breach of contract relating
to employment offers made by Defendants to Plaintiffs. Stated briefly, Defendants courted
Plaintiffs in an attempt to hire them; Plaintiffs accepted and quit their jobs. The proposed
arrangement never materialized, however, and Plaintiffs found themselves out of work. In
the ad damnum clause of the Complaint, Plaintiffs seek an unspecified amount of
compensatory and punitive damages.
Nearly six months after the suit was originally filed, Plaintiffs’ counsel sent an email
to Defendants’ counsel, which stated: “I think my clients would accept $250K but doubt mr
lilly could get there-will wait to hear from you-thanks!” (Doc. # 1-2.) Inferring from this
email that federal jurisdiction exists, Defendants filed their Notice of Removal (Doc. # 1) on
January 25, 2012. Plaintiffs timely moved to remand on February 24, 2012.
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)).
Plaintiffs miscomprehend the bifurcated removal approach set forth by Congress in
28 U.S.C. § 1446(b). As set forth in the plain language of the statute, a state court defendant
may remove a case to federal court at two procedurally distinct moments in time. First, if it
is facially apparent from the initial pleading that subject matter jurisdiction exists, §
1446(b)(1) 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). Such a removal must be accomplished “within 30 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)(1). However, “[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 . . . .” § 1446(b)(3); see also Lowery v. Ala. Power Co., 483 F.3d 1184
(11th Cir. 2007).
Because the jurisdictional amount was not facially apparent from the Complaint, the
removal in this case was properly effected under § 1446(b)(3), within thirty days of the
receipt of an “other paper.” Defendants contend that the “other paper” from which it first
ascertained the removability of the case is the above-recited email from Plaintiffs’ counsel,
which makes a non-committal settlement offer for $250,000.
Under § 1446(b)(3), “a case becomes removable [as a procedural matter] 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. As set forth in Lowery, the “other
paper” received from the plaintiff in a § 1446(b)(3) removal must “unambiguously establish
federal jurisiction.” Id. at 1213; see also Exum v. State Farm Fire & Cas. Co., No.
2:11cv206, 2011 WL 5155827, at *4-6 (M.D. Ala. Oct. 31, 2011) (Fuller, J.) (published)
(interpreting Lowery’s heightened “unambiguously establish” procedural standard as
replacing the substantive preponderance of the evidence standard in a § 1446(b)(3) amountin-controversy removal when a plaintiff timely moves to remand). All three of Lowery’s
procedural conditions are easily satisfied. Demand letters, settlement offers, and even emails
estimating damages may constitute “other paper.” Id. at 1212 n.62. Plaintiffs’ counsel’s
statement that he “thinks” his client would accept $250,000 is part-settlement offer partdamages estimate. Either way, the email is “other paper” and a proper basis for a §
1446(b)(3) removal. Second, the email complies with Lowery’s “receipt from the plaintiff”
rule, as it was authored by Plaintiffs’ counsel. Finally, the email complies with Lowery’s
“unambiguously establish” standard for “other paper” removals which is used where, as here,
the plaintiff preserves a procedural challenge to the removal by timely moving to remand.
See Exum, 2011 WL 5155827, at *5-6.
When considering a demand letter as evidence of the amount in controversy, the court
should leave some room for posturing, but also should view the amount demanded as
relevant evidence of the true amount in controversy. Burns v. Windsor Ins. Co., 31 F.3d
1092, 1097 (11th Cir. 1994) (“While [a] settlement offer, by itself, may not be determinative,
it counts for something.”). Furthermore, the Eleventh Circuit has instructed the district
courts to make “reasonable deductions, reasonable inferences, or other reasonable
extrapolations” from the removal evidence. Roe v. Michelin N.A., Inc., 613 F.3d 1058, 106162 (11th Cir. 2010).
In this case, the amount demanded, $250,000, cannot be aggregated to satisfy the
amount in controversy. See Smith v. GTE Corp., 236 F.3d 1292, 1300 n.6 (11th Cir. 2001)
(“Generally, when plaintiffs join in one lawsuit, the value of their claims may not be added
together, or ‘aggregated,’ to satisfy the amount in controversy requirement for diversity
juridiction.”). Assuming that $125,000 (one half) can be fairly attributed to each plaintiff,
this amount is still approximately 166% percent of the required amount in controversy under
§ 1332. By itself, the Court would, perhaps, consider the $125,000 number to fall within the
region fairly encompassed as posturing. See Cross v. Wal-Mart Stores, East, LP, No.
7:11cv21, 2011 WL 976414, at *2 (M.D. Ga. March 17, 2011) (“Here, the Court believes
that the $125,000 settlement offer is not an honest assessment of damages. The settlement
demand was made before the Plaintiff’s complaint was filed, making it more likely that the
Plaintiff’s attorney was posturing for settlement purposes.”). In this case, the email was sent
approximately six months after the Complaint was filed. Furthermore, the language
employed by Plaintiff’s counsel in the email suggests that it is in doubt as to whether
Plaintiffs would actually settle for $250,000. Thus, a fair reading of the email is that
$125,000 is at or near the low end of what each Plaintiff would accept as a settlement.
Finally, and of particular note, is Plaintiffs’ complete lack of argument in the motion to
remand that the email does not reflect an accurate measurement of the true value of the case.
The Court considers this to be an abandonment or waiver of any presumption that the
$250,000 figure was posturing. The combination of these factors leads the Court to conclude
that the email sent by Plaintiffs’ counsel unambiguously establishes the amount in
controversy. Accordingly, Plaintiffs’ motion to remand is due to be denied.
For the reasons set forth above, it is ORDERED that Plaintiffs’ Motion to Remand
(Doc. # 6) is DENIED.
DONE this 21st day of March, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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