Arrington, et al. v. State Farm Insurance Companies, et al.
MEMORANDUM OPINION AND ORDER directing that the motion to remand (Doc. 9 ) be and is hereby GRANTED and that this case is hereby REMANDED to the Circuit Court of Montgomery County, Alabama; the Clerk of Court is DIRECTED to take the action necessary to accomplish the remand of this case to the Circuit Court of Montgomery County, Alabama. Signed by Honorable Judge Charles S. Coody on 7/1/14. (scn, ) (Main Document 15 replaced on 7/1/2014 to correct last page of order) (scn, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
MICHAEL and TAMMY ARRINGTON,
STATE FARM INS. CO., et al.,
CIVIL ACT. NO. 2:14cv209-CSC
MEMORANDUM OPINION AND ORDER
Before the court is the Plaintiffs’ motion to remand (Doc. 9). Having considered the
motion, the court concludes that the motion is due to be granted.
Standard of Review
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095
(11th Cir. 1994). This court is “‘empowered to hear only those cases within the judicial
power of the United States as defined by Article III of the Constitution,’ and which have
been entrusted to them by a jurisdictional grant authorized by Congress.” Univ. of S. Ala. v.
Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d
1365, 1367 (11th Cir. 1994)). Therefore, a federal court is obligated to inquire into subject
matter jurisdiction sua sponte “at the earliest possible stage in the proceedings.” Id. at 410.
“It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of
establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at
377. Thus, when a case is removed to federal court, the “heavy” burden of establishing the
existence of subject matter jurisdiction rests on the removing party. Burns, 31 F.3d at 1095.
All questions or doubts as to subject matter jurisdiction are to be resolved in favor of
returning the matter to state court. Burns, 31 F.3d at 1095.
Procedural History and Issues Presented
On August 29, 2013, Michael and Tammy Arrington filed a complaint in the Circuit
Court of Pike County, Alabama, asserting state law claims against State Farm Insurance
Companies, State Farm General Insurance Company, and State Farm Fire and Casualty
Company (collectively, “State Farm”). The Arringtons also named State Farm insurance
agent Danny Graham as a Defendant. (Doc. 1-10 ¶ 5). The Arringtons and Defendant
Graham are Alabama citizens. (Doc. 1-9 ¶¶ 1, 5). The State Farm defendants are foreign
corporations doing business in Alabama. (Doc. 1-9 ¶ ¶ 2-4).
In their complaint, the Arringtons allege the following facts: Graham sold the
Arringtons a State Farm homeowners’ insurance policy and represented that State Farm
would provide coverage if the Arringtons’ home suffered a covered peril. (Doc. 1-9 ¶¶ 1415). In December 2012, a storm damaged the Arringtons’ home, causing the roof to leak.
(Doc. 1-9 ¶¶ 17-18). The Arringtons submitted a claim for State Farm to pay for home
repairs, and State Farm paid only a portion of the claim, refusing to pay the rest. (Doc. 1-9
¶¶ 19-21). The Arringtons allege that, as a result, they
have been injured and damaged as follows: their home has been damaged, they
have spent a great deal of money on premium payments for a policy of
insurance that did not provide full coverage. They have been caused to suffer
and continue to suffer mental anguish and emotional distress. They have been
otherwise injured and damaged.
(Doc. 1-9 ¶ 25).
The Arringtons assert claims for breach of contract, bad faith refusal to pay an
insurance claim and bad faith failure to investigate an insurance claim, fraud, negligence,
wantonness, and negligent or wanton hiring, training, or supervision.
In addition to
compensatory damages for their alleged injuries, the Arringtons also seek punitive damages.
On March 24, 2014, the Defendants filed a notice of removal. The Defendants
contend that the Arringtons’ February 28, 2014 deposition testimony revealed that they
cannot arguably prove certain facts necessary to their claims against Graham, the only nondiverse Defendant.
Accordingly, the Defendants argue that Graham was
fraudulently joined and that diversity of citizenship exists in this case for purposes of
establishing subject matter jurisdiction. See Stillwell v. Allstate Ins. Co., 663 F.3d 1329,
1332 (11th Cir. 2011) (“‘When a plaintiff names a non-diverse defendant solely in order to
defeat federal diversity jurisdiction, the district court must ignore the presence of the
non-diverse defendant and deny any motion to remand the matter back to state court.’”
(quoting Henderson v. Washington Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006)).
However, to establish diversity jurisdiction, the removing party must not only
demonstrate that the properly-joined parties are completely diverse, but, where the amount
in controversy is not evident from the face of the complaint, the removing party must also
demonstrate that the amount in controversy exceeds the $75,000 jurisdictional minimum set
by 28 U.S.C. § 1332.1
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).
The Defendants have submitted a contractors’ estimate for repairs to the exterior of
the Arringtons’ home in the amount of $34,680.00. (Doc. 1-7). The Defendants have
presented no evidence as to the probable value of the remaining claims for damages.2 (Doc.
1-7). Instead, relying on Roe v. Michelin N. Am., Inc., 613 F.3d 1058 (11th Cir. 2010), the
Defendants argue that evidence establishing the jurisdictional amount is not necessary where
it is “‘facially apparent’ from the pleading itself that the amount in controversy exceeds the
jurisdictional requirement, even when ‘the complaint does not claim a specific amount of
damages.’” Roe, 613 F.3d at 1061 (quoting Pretka v. Kolter City Plaza II, Inc., 608 F.3d
744, 754 (11th Cir. 2010)). The Defendants argue that, under Roe, this court can simply
apply “judicial experience and common sense” to the bare allegations of the complaint
regarding the rest of the Arringtons’ damages and determine that, more likely than not, when
combined with the $34,680.00 cost of exterior home repairs, the remaining damages are
Because the Defendants have not met their burden to establish that the amount in controversy
exceeds $75,000, the court pretermits consideration of whether Graham was fraudulently joined.
The court notes that the contractor’s estimate states that various electrical items in the home had
been damaged in the amount of $1,959.00. (Doc. 1-7 p.2). The Defendants do not appear to rely on this
figure, and it is unknown whether State Farm reimbursed the Arringtons for these damages. However, the
Defendants have not demonstrated that the jurisdictional minimum is satisfied even if the amount in
controversy includes $1,959.00 in damage to electronics and appliances.
sufficient to meet the jurisdictional minimum.
The Applicable Standard For Reviewing the Allegations in the Initial Complaint
Regarding the Amount in Controversy
This case is somewhat unusual in that the Defendants argue that removability first
became unequivocally apparent upon receipt of the Arringtons’ deposition testimony, which
allegedly establishes complete diversity, but that, other than the cost of home repairs, a
“common sense” review of the bare facial allegations of the complaint establishes that, more
likely than not, the amount in controversy has been met. To the extent that the Defendants
urge this court to draw inferences from the bare allegations of the complaint to determine
whether the jurisdictional amount has been met, the court has considered two apparentlyconflicting Eleventh Circuit cases – Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir.
2007), and Roe v. Michelin N. Am., Inc., 613 F.3d 1058 (11th Cir. 2010) – and concludes
that, under the facts of this case, Roe supplies the standard of review.
The Defendants cite Exum v. State Farm & Fire Cas. Co., 821 F. Supp. 2d 1285
(M.D. Ala. 2011) for the proposition 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.’” 821 F. Supp 2d at 1291 (quoting Tapscott v. MS Dealer Serv. Corp., 77 F.3d
1353, 1356–57 (11th Cir. 1996), overruled on other grounds by Cohen v. Office Depot, Inc.,
204 F.3d 1069, 1072 (11th Cir. 2000)). However, as the court in Exum pointed out, “[t]he
Lowery case appears to have elaborated a different and more rigorous burden than the
preponderance of the evidence burden of Tapscott.” Id. In Exum, the court applied the
Lowery standard, not the Tapscott standard. Id. at 1293-94.
In Lowery, 483 F.3d 1184, relying on Bosky v. Kroger Texas, LP, 288 F.3d 208, 211
(5th Cir. 2002) and Huffman v. Saul Holdings, LP, 194 F.3d 1072, 1078 (10th Cir. 1999), an
Eleventh Circuit panel held that, “in assessing the propriety of removal, the court considers
the document received by the defendant from the plaintiff—be it the initial complaint or a
later received paper—and determines whether that document and the notice of removal
unambiguously establish federal jurisdiction.” Lowery, 483 F.3d at 1213 & n.63.3 Although
Lowery did not absolutely hold that the “unequivocal statement” in the “initial complaint or
later received paper” must specify the damages at issue in terms of a dollar amount, Lowery
does state that, “generally” and “ordinarily,” when the plaintiff does not “assign a specific
Bosky and Huffman do not support Lowery’s assertion that, no matter when a case is removed,
subject matter jurisdiction must be shown by a document received from the plaintiff that contains an
“unequivocal,” “unambiguous statement that clearly establishes” federal jurisdiction. See Pretka, 608 F.3d
at 765 (noting that Lowery “misreads” Bosky and Huffman as applying both to removals based on the initial
complaint and removals based on the receipt of some subsequent document). Rather, those cases hold that,
when federal subject matter jurisdiction cannot be ascertained from the face of the complaint, the time for
removal begins to run when the defendant receives from the plaintiff another document (other than the initial
complaint) that clearly and unequivocally and unambiguously places the defendant on notice that the case
is or has become removable.
The timeliness of removal is a procedural issue that presents a separate question from the existence
of subject matter jurisdiction. Pretka, 608 F.3d at 751. Thus, not only does Lowery improperly conflate
removals based on the initial complaint with removals that are predicated on some subsequent document
received from the plaintiff, Lowery also improperly conflates procedural and jurisdictional questions.
Needlessly confusing the burden of proof for establishing jurisdiction and the level of specificity required
before a document will trigger the running of time limit for removing a case creates a potentially unworkable
standard whereby subject matter jurisdiction must be shown by a preponderance of unequivocally clear and
certain evidence. Cf. Lowery, 483 F.3d at 1211 (“[I]f a defendant can only carry the burden of establishing
jurisdiction under these circumstances, then the defendant could have satisfied a far higher burden than
preponderance of the evidence. Regardless, our precedent compels us to continue forcing this square peg into
a round hole.”).
amount to the damages sought in [the] complaint,” the complaint itself will not be sufficient
to establish jurisdiction. Id. n.63. Thus, under Lowery, remand is required unless “the
jurisdictional amount is either stated on the face of the documents” on which removal is
predicated, “or readily deducible from them,” and satisfying this requirement presents “a far
higher burden than preponderance of the evidence.” Id. at 1211.
Despite being soundly criticized by a subsequent Eleventh Circuit panel in Pretka, 608
F.3d 744, Lowery has not been overruled. See United States v. Archer, 531 F.3d 1347, 1352
(11th Cir. 2008) (“[A] prior panel’s holding is binding on all subsequent panels unless and
until it is overruled or undermined to the point of abrogation by the Supreme Court or by this
court sitting en banc”). However, Lowery is distinguishable from this case insofar as it
suggests that the initial complaint must “assign a specific amount to the damages sought” or
that the amount in controversy must be unambiguously “readily discernable” from the initial
complaint to a clear and certain degree.
In Lowery, removal was not predicated on the initial complaint, but on an amended
complaint that did not contain a specific claim for damages.
Thus, as noted in Pretka,
Lowery “did not address the particular type of removal” where, as here, “‘the actual facts
supporting federal jurisdiction remain unaltered from the initial pleading, but their existence
has been manifested only by later papers, revealing the grounds for removal for the first
time.’” Pretka, 608 F.3d at 760 n.16. “‘[W]hatever their opinions say, judicial decisions
cannot make law beyond the facts of the cases in which those decisions are announced.’” Id.
at 762 (quoting Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir. 2003)).
Moreover, in Pretka, the Eleventh Circuit noted that Lowery’s reasoning regarding
the requirement of an “unambiguous statement that clearly establishes jurisdiction” “is
pegged to language . . . in § 1446(b)” providing that, where the initial complaint does not
provide the basis for removal, the time for removal begins to run from “‘receipt by the
defendant . . . 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.’” Pretka,
608 F.3d at 762-63 (quoting 28 U.S.C. § 1446(b)(3)); see also Pretka, 608 F.3d at 763
(citing Bosky citing in turn § 1441(b)); Bosky, 288 F.3d at 211 (citing § 1441(b) with respect
to the requirement of an “unequivocally clear and certain” statement of jurisdiction);
Huffman, 194 F.3d at 1078 (same). By its terms, this statutory language does not apply to
the initial complaint, but to the subsequent document received from the plaintiff that first
places the defendant on notice that the case is removable. Pretka, 608 F.3d at 760-61.
Therefore, as the Pretka panel recognized, Lowery’s statements are incorrect dicta with
respect to removals based on the initial complaint. Pretka, 608 F.3d at 762-67.
The present case, like Lowery and unlike Pretka, was removed pursuant to the
provisions of § 1446(b) that allow for removal on the basis of some document received from
the plaintiff, other than the initial complaint, “from which it may first be ascertained that the
case is one which is or has become removable.” 28 U.S.C. § 1446(c). However, unlike in
Lowery, in this case, the document that (allegedly) unequivocally notified the Defendants of
the existence of federal jurisdiction was not a document establishing the amount in
controversy, but a document indicating that Graham was fraudulently joined and, therefore,
that complete diversity exists. The Defendants essentially argue that (other than the cost of
home repairs) the amount in controversy has always been reasonably inferrable from the bare
allegations of the initial complaint.
Therefore, the statutory requirement that jurisdiction be “ascertainable” is applicable
to the document establishing fraudulent joinder, but inapplicable to the allegations in the
initial complaint pertaining to the amount in controversy. Pretka, 608 F.3d at 758 n.14
(noting that the statutory language at issue “refers to a document from which removability
must first be ‘ascertained’”). Accordingly, Lowery’s requirement of an “unambiguous
statement that clearly establishes jurisdiction,” which “is pegged to” that same statutory
language, Pretka, 608 F.3d at 762-63, is dicta insofar as it pertains to this court’s review of
the bare allegations in the initial complaint to determine whether the amount in controversy
is satisfied. Any other conclusion would require that, in cases of fraudulent joinder where
the amount in controversy has been reasonably deducible all along from the face of an initial
complaint, defendants who subsequently receive a document clearly establishing complete
diversity nevertheless would be powerless to remove the case unless and until they receive
yet another document that clearly and unequivocally states the dollar amount in controversy.
Such a result violates two principles: first, the principle that a defendant’s right to remove
must not be subject to the caprice of an artful plaintiff, Pretka at 766, and, second, the rule
that a defendant must initiate removal as soon as the case assumes the shape of a removable
case, id. at 759.
In Roe v. Michelin N. Am., Inc., 613 F.3d 1058 (11th Cir. 2010), citing Tapscott,
supra, the Eleventh Circuit held that, when a case is removed on the basis of an initial
complaint that does not plead a specific amount of damages, the removing defendant is
required to show by a preponderance of the evidence that, more likely than not, the amount
in controversy exceeds the jurisdictional minimum. Roe, 613 F.3d at 1061; see also
Friedman v. New York Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (citing Kirkland
v. Midland Mortg. Co., 243 F.3d 1277, 1281 n.5 (11th Cir.2001)) (same); Tapscott, 77 F.3d
at 1356–57. Under Roe, if a defendant does not provide evidence of the amount in
controversy, but alleges that removability is apparent from the face of the initial complaint,
“the district court must evaluate whether the complaint itself satisfies the defendant’s
jurisdictional burden.” Roe, 613 F.3d at 1061. “In making this determination, the district
court is not bound by the plaintiff’s representations regarding its claim, nor must it assume
that the plaintiff is in the best position to evaluate the amount of damages sought.” Id.
Instead, when the initial complaint does not include an unambiguous demand for a specific
amount of damages, the removing defendant may satisfy its burden to establish subject matter
jurisdiction, if, when the specific allegations of the complaint are viewed in light of “judicial
experience and common sense,” it is apparent from the face of the complaint that, “more
likely than not,” the case satisfies the jurisdictional minimum. 613 F.3d at 1061-62.
Because the Defendants in this case allege that the jurisdictional amount is established
by the bare allegations of the initial complaint, the court concludes that, in this case,
determining whether the jurisdictional amount has been met is governed by Roe’s
“preponderance of the evidence” or “more likely than not” standard, 613 F.3d at 1061, and
not by any requirement in Lowery that the initial complaint must clearly, unequivocally, or
unambiguously state the amount in controversy.4 Therefore, despite the fact that this case
was not removed within 30 days of receipt of the initial complaint, the court will consider
whether the specific allegations of the initial complaint, and all reasonable inferences 5 to be
drawn from those allegations, are sufficient to establish that, “more likely than not,” the
amount in controversy is sufficient.
Although Roe recognizes that “judicial experience and common sense” may support
“reasonable inferences” drawn “from the pleadings” to determine whether “the case stated
in [the] complaint meets federal jurisdictional requirements,” nothing in Roe permits the
court to indulge in speculation or fill empty gaps in the plaintiff’s factual averments with
unfounded assumptions about what the evidence may show. 613 F.3d at 1061 (emphasis
In any event, in this case, Roe does not require a different result that Lowery. The standard set by
Roe, which allows for reasonable inferences, deductions, and extrapolations, 613 F.3d at 1058, is decidedly
less than the “clear and unequivocal” standard mentioned in Lowery. Because the complaint is insufficient
to satisfy Roe, it is most certainly insufficient under the standard suggested by Lowery.
The court notes that, although Roe “permits district courts to make ‘reasonable deductions,
reasonable inferences, or other reasonable extrapolations’ from the pleadings to determine whether it is
facially apparent that a case is removable,” neither Roe nor Lowery permit a court to draw unsubstantiated
inferences about the amount in controversy, and, where competing factual inferences may be fairly drawn
from the allegations of the complaint, neither case permits a court to indulge the inferences least favorable
to remand. Roe, 613 F.3d at 1061-62.
added). “Judicial experience and common sense” are useless for making “reasonable”
deductions, inferences, and extrapolations when the complaint is devoid of any averments
from which to deduce, infer, or extrapolate. A reasonable inference “is not a suspicion or
a guess. It is a reasoned, logical decision to conclude that a disputed fact exists on the basis
of another fact that is known to exist.’” (quoting Siewe v. Gonzales, 480 F.3d 160, 168 (2d
Cir. 2007). “[W]ithout facts or specific allegations, the amount in controversy” can be
determined “only through speculation—and that is impermissible.” Pretka, 608 F.3d at
753-54 (citing Lowery, 483 F.3d at 1209). Moreover, it is axiomatic that, on a motion to
remand, all questions or doubts as to subject matter jurisdiction are to be resolved in favor
of returning the matter to state court, see Burns, 31 F.3d at 1095; thus, to the extent that
competing inferences may be drawn from the specific factual allegations of the complaint,
the court must indulge those inferences most favorable to remand.
On the face of their complaint, in addition to the cost of exterior home repairs, the
Arringtons seek compensatory damages to recover “a great deal of money on premium
payments for a policy of insurance that did not provide full coverage.” (Doc. 1-9 ¶ 25).
However, in the court’s “judicial experience,” the definition of “a great deal of money”
varies widely from case to case and plaintiff to plaintiff, and, without some specific
allegation in the complaint indicating how much money was spent on policy premiums, there
is no basis for drawing any inference whatsoever on that issue. Likewise, the complaint
contains no specific allegations from which one could draw any reasonable inference
regarding the extent of the Arringtons’ mental anguish, emotional distress, or unspecified
“other” damages. (Doc. 1-9 ¶ 25). In the court’s “judicial experience,” mental anguish and
emotional distress damages in cases such as this vary widely depending on the circumstances,
and even very similar circumstances may affect different plaintiffs in different ways. Finally,
the Defendants argue that, in addition to the $34,680.00 cost of repairs to the exterior of the
home, the Arringtons also seek compensation for damages to the interior of the home. (Doc.
14 ¶ 31). The complaint, however, includes no specifics about the location and nature of
damages to the home, except to say that the storm damage caused the roof to leak. From the
sparse allegations of the complaint, it is simply not possible to determine the extent of
damage, if any, to the interior of the home. In short, the Defendants’ approach to calculating
the Arringtons’ compensatory damages requires baseless speculation and deference to
whichever assumptions are least favorable to remand, rather than the use of judicial
experience and common sense to make reasonable deductions from specific factual
allegations or evidence. This, the court cannot do. See Kokkonen, 511 U.S. at 377 (“It is to
be presumed that a cause lies outside [the court’s] limited jurisdiction); Pretka, 608 F.3d at
753-54 (“[W]ithout facts or specific allegations, the amount in controversy could be ‘divined
[only] by looking at the stars’—only through speculation—and that is impermissible.”).
In addition to compensatory damages, in conjunction with claims for bad faith failure
to investigate and pay an insurance claim, fraud, wantonness, and wanton hiring, training,
and supervising of adjusters, the Arringtons also seek “an amount of punitive damages as
will reflect the enormity of the wrongs committed by the Defendants and will deter the
Defendants and others from committing similar wrongful acts the future.” (Doc. 1-9 p. 8).
Citing Roe and Blackwell v. Great American Financial Resources, Inc., 620 F. Supp. 2d
1289, 1291 (N.D. Ala. 2009), the Defendants argue that, using judicial experience and
common sense, this court can determine, based on the allegations of the complaint, that a
constitutionally-permissible punitive damages award would be enough, combined with the
other damages at issue, to satisfy the jurisdictional minimum. For instance, the Defendants
posit that the jurisdictional amount could be met by starting with the $34,680.00 cost of home
repairs, assuming that the remaining amount of compensatory damages is at least $2,820.01,
and then assuming that the amount punitive damages at issue is at least equal to the total
amount of compensatory damages. However, those assumptions are substantiated only by
speculation and run contrary to the requirement that the court must presume that this case lies
outside its limited jurisdiction. Kokkonen, 511 U.S. at 377. This court’s task is not to merely
decide whether the punitive damages at issue in this case could conceivably satisfy the
minimum jurisdictional requirement, but whether it is more likely than not that they do. See
Roe, 613 F.3d at 1061. Moreover, the constitutionally-permissible ratio of punitive damages
to compensatory damages is only one factor in determining the reasonableness of a potential
punitive-damages award and is determined in light of the facts of each individual case, not
by applying a rigid mathematical formula. State Farm Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408, 425 (2003); Pensacola Motor Sales, Inc. v. Daphne Automotive, LLC, __ So.3d__,
__, 2013 WL 6360967 at *14 (Ala. 2013).
“‘[T]he most important indicium of the reasonableness of a punitive damages award
is the degree of reprehensibility of the defendant’s conduct.’” State Farm Mut. Auto. Ins. Co.
v. Campbell, 538 U.S. 408, 419 (2003) (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
575 (1996)); see also Roe, 613 F.3d at 1065 (holding that, under Alabama law, “in assessing
punitive damages, the worse the defendant’s conduct was, the greater the damages should
be.”). Thus, in Roe, the court noted that the “factors used to determine the value” of a
wrongful death claim for punitive damages “can generally be evaluated using the complaint’s
allegations regarding the defendant’s behavior.” Roe, 613 F.3d at 1064. In Roe, the
complaint included specific, non-conclusory allegations that the defendant fully knew the
potential danger that its conduct posed and that the danger was preventable with ordinary
care, but “did not even attempt to take [preventative] measures,” thus causing the plaintiff’s
death and “endangering the lives of thousands of people.” Roe, 613 F.3d at 1066; see also
Pensacola Motor Sales at *16 (noting that the degree of reprehensibility of the defendant’s
conduct may be guaged by the degree to which the defendant was aware of the hazards his
conduct posed, the degree to which the defendant recklessly or indifferently endangered
others, and whether the defendant’s conduct was merely an isolated incident). Here,
however, although the plaintiffs clearly contend that the defendants’ allegedly wanton,
reckless, bad faith, and/or fraudulent conduct was reprehensible enough to merit some award
of punitive damages, the complaint contains no specific factual allegations that could provide
any indication of the degree of reprehensiblility of that conduct.
Further, unlike in Blackwell, which is not controlling precedent, in this case there are
no allegations that the Defendants were aware that the Arringtons were particularly
financially vulnerable or that the Defendants engaged in a long-standing pattern of
misconduct. Cf. Blackwell, 620 F.2d at 1291 (noting that the complaint alleged a conspiracy
“that continued for more than two years and, in the process, syphoned away much of an
elderly man’s life savings under false pretenses”); Akins Funeral Home, Inc., v. Miller, 878
So. 2d 267, 279 (Ala. 2003) (recognizing that economic damage inflicted on a financiallyvulnerable plaintiff may indicate a greater degree of reprehensibility of misconduct and
support a larger punitive-damages award); Pensacola Motor Sales __ So.3d __, ___, 2013
WL 6360967 at *16 (Ala. 2013) (holding that, in determining the reprehensibility of a
defendant’s conduct, the court must consider whether the defendant’s conduct was an
isolated incident or part of a pattern of misconduct, the duration of the conduct, and the
plaintiff’s financial vulnerability).
Further, despite the lack of any factual detail in the complaint indicating the extent
of compensatory damages at issue or the reprehensibility of the Defendants’ alleged conduct,
and despite the fact that the Arringtons have submitted to depositions and discovery has been
ongoing in the case, the Defendants have not submitted any evidence to support their
assertion that the value of the Arringtons’ claims likely exceeds the jurisdictional minimum.
Pretka, 608 F.3d at 752 (“[I]t would be ‘impermissible speculation’ for a court to hazard a
guess on the jurisdictional amount in controversy ‘without the benefit of any evidence [on]
the value of individual claims.’” (quoting Lowery, 483 F.3d at 1220)).
In the absence of evidence or specific factual allegations in the complaint upon which
to reasonably determine the extent of the Arringtons’ compensatory and punitive damages
(other than the cost of home repairs), the court cannot simply assume that the amount in
controversy in this case exceeds the jurisdictional minimum. “The absence of factual
allegations pertinent to the existence of jurisdiction is dispositive and, in such absence, the
existence of jurisdiction should not be divined by looking to the stars.” Pretka, 608 F. 3d at
753 (quoting Lowery, 483 F.3d at 1215) (emphasis in Pretka).
Accordingly, this case must be remanded.
Accordingly, it is
ORDERED that the motion to remand (Doc. 9) be and is hereby GRANTED and that
this case is hereby REMANDED to the Circuit Court of Pike County, Alabama.
The Clerk of Court is DIRECTED to take the action necessary to accomplish the
remand of this case to the Circuit Court of Pike County, Alabama.
Done this 1st day of July, 2014.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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