Harris et al v. Aghababaei et al

Filing 15

MEMORANDUM OPINION AND ORDER as follows: (1) Plfs' 8 Motion to Remand is GRANTED; (2) This case is REMANDED to the Circuit Court of Bullock County, Alabama. The clerk is DIRECTED to take appropriate steps to effect the remand; (3) Other pendin g motions are left for determination by the state court, but with reliance on Plfs' counsel's representations and with confidence that the state court will grant the Plfs' Motion to Dismiss Liberty Mutual as a Dft. Signed by Honorable Judge W. Harold Albritton, III on 1/28/2015. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

REGINA HARRIS and DONALD
HARRIS,
Plaintiffs,
v.
ESFANDIYAR AGHABABAEI,
NARINDER SINGH d/b/a SIDHU
TRUCKING; and LIBERTY
MUTUAL GROUP,
Defendants.

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CASE NO. 2:14-cv-1173-WHA-CSC
(WO)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This cause is before the court on a Motion to Remand (Doc. # 8) filed on December 17,
2014 by Plaintiffs Regina and Donald Harris. Also before the court are the Response to the
Motion (Doc. # 12) filed by Defendants Esfandiyar Aghababaei and Narinder Singh d/b/a Sidhu
Trucking (collectively, “Defendants”) and Plaintiffs’ Reply thereto (Doc. # 13). Defendant
Liberty Mutual Group (“Liberty Mutual”) has filed a Motion to opt out of further participation in
this lawsuit (Doc. # 7). The Plaintiffs also filed a Motion to Dismiss Liberty Mutual as a party
(Doc. # 14) the same day they filed their Reply, on January 21, 2015.
The Plaintiffs filed their original state court Complaint on October 8, 2014, in the Circuit
Court of Bullock County, Alabama. The Complaint alleges claims arising out of an automobile
accident for negligence; wanton and reckless conduct; negligent, reckless and/or wanton
violations of rules of the road; negligent entrustment; and an uninsured/underinsured motorist

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claim with regard to Liberty Mutual Group (Doc. # 1-1 at 8–11). Defendant Aghababaei timely
removed the case to this court on November 25, 2014.1
For the reasons to be discussed, the Motion to Remand is due to be GRANTED.
II. MOTION TO REMAND STANDARD
Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (1994); Wymbs v.
Republican State Exec. Comm., 719 F.2d 1072, 1076 (11th Cir. 1983), cert. denied, 465 U.S.
1103 (1984). As such, federal courts only have the power to hear cases that they have been
authorized to hear by the Constitution or the Congress of the United States. See Kokkonen, 511
U.S. at 377. Because federal court jurisdiction is limited, the Eleventh Circuit favors remand of
removed cases where federal jurisdiction is not absolutely clear. See Burns, 31 F.3d at 1095.
Because this case was originally filed in state court and removed to federal court, the
Defendants bear the burden of proving that federal jurisdiction exists. Williams v. Best Buy Co.,
Inc., 269 F.3d 1316, 1319 (11th Cir. 2001).
III. FACTS
The Complaint alleges the following facts:
On or about July 18, 2014, the Plaintiffs were traveling by automobile on Highway 110
in Bullock County, Alabama. They were struck by a vehicle driven by Defendant Aghababaei,
who was operating the vehicle in the scope of his employment as a driver for Defendant Sidhu
Trucking. The Plaintiffs both sustained serious physical injuries.

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The date of the Notice of Removal was within 30 days of service on Defendant Aghababaei, which occurred on
October 28, 2014.

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IV. DISCUSSION
“Except as otherwise expressly provided by Act of Congress,” a defendant may remove
from state court any civil case that could have originally been brought in federal court. 28
U.S.C. § 1441(a). District courts have original jurisdiction over civil actions where the amount
in controversy exceeds $75,000 and the action is between citizens of different states. 28 U.S.C.
§ 1332. “Diversity jurisdiction requires complete diversity; every plaintiff must be diverse from
every defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998).
A. Diversity of Citizenship
The parties do not dispute whether diversity of citizenship exists in this case; Plaintiffs
appear to concede that it does. According to the Notice of Removal, the Plaintiffs are citizens of
Bullock County, Alabama, Defendant Aghababaei is a citizen of California, Defendant Singh is a
citizen of California, and Defendant Liberty Mutual Group is a citizen of Masschusetts. Because
no Plaintiff has the same citizenship as any Defendant, complete diversity exists in this case.
B. Amount in Controversy
Plaintiffs’ original Complaint expressly limits its prayer for damages using the following
language: “[T]he Plaintiffs respectfully demand judgment against the Defendants, jointly and
severally, for compensatory and punitive damages, not to exceed $74,500, in the aggregate, for
all claims under this lawsuit and for cost and interest.” (Doc. # 1-1 at 11.) The Plaintiffs further
represent their limited damages demand to this court in the Motion to Remand, stating:
“Plaintiffs affirmatively state to this Court that their damages do not exceed $74,500 as set forth
in the complaint.” (Doc. # 8 at 2 ¶ 1.) Despite this limitation, Defendants argue that the fact that
Plaintiffs named their uninsured motorist carrier, Liberty Mutual, in the lawsuit means that the
amount in controversy is greater than $75,000. The Defendants claim that because their own

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insurance policy has a maximum of $1 million in coverage and Liberty Mutual would only pay
additional damages above that threshold, the amount in controversy necessarily exceeds the
insurance coverage cap due to Liberty Mutual’s presence in the suit. As explained further below,
the Defendants’ arguments are not persuasive. As a preliminary matter, the court first must
determine the appropriate standard of review for evaluating whether the Defendants have met
their burden of persuasion.
1. Standard of Review
The parties disagree as to the proper standard of review for whether the Defendants have
carried their burden of showing the amount in controversy exceeds $75,000. The Defendants
argue the court should determine whether the requirement has been met by a preponderance of
the evidence (Doc. # 12 at 4 ¶ 4), while the Plaintiffs claim the Defendants must show “to a legal
certainty” that any recovery in the suit must exceed $75,000. (Doc. # 8 at 3 ¶ 6.)
Until recently, the Plaintiffs’ position was correct. The Eleventh Circuit held in Burns
that in situations where the complaint demands a specific amount of damages, the legal certainty
standard applies. 31 F.3d at 1095. The standard was altered, however, by a 2011 statutory
amendment to 28 U.S.C. § 1446. See Federal Courts Jurisdiction and Venue Clarification Act of
2011, Pub. L. No. 112–63, § 103, 125 Stat. 758, 762 (2011) (enacted December 7, 2011, and
taking effect January 6, 2012). The newly amended § 1446(c)(2) reads as follows:
(2) If removal of a civil action is sought on the basis of the jurisdiction conferred
by section 1332(a), the sum demanded in good faith in the initial pleading shall be
deemed to be the amount in controversy, except that—
(A) the notice of removal may assert the amount in controversy if the initial
pleading seeks—
(i) nonmonetary relief; or

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(ii) a money judgment, but the State practice either does not permit demand for a
specific sum or permits recovery of damages in excess of the amount demanded;
and
(B) removal of the action is proper on the basis of an amount in controversy
asserted under subparagraph (A) if the district court finds, by the preponderance
of the evidence, that the amount in controversy exceeds the amount specified in
section 1332(a).
28 U.S.C. § 1446 (emphasis added). In cases falling under the terms of § 1446(c)(2), therefore,
the preponderance of the evidence standard now applies. The Supreme Court recognized this
change, citing the Jurisdiction and Venue Clarification Act, in its recent opinion in Dart
Cherokee Basin Operating Co., LLC v. Owens. See 135 S. Ct. 547, 553–54 (2014) (When the
amount in controversy is in dispute, “both sides submit proof and the court decides, by a
preponderance of the evidence, whether the amount-in-controversy requirement has been
satisfied.”).
Even before Dart, two Middle District of Florida decisions recognized that in Florida,
“the newly amended § 1446 displaces previous Eleventh Circuit case law [including Burns],
which held that, when a state court complaint explicitly seeks an amount of damages less than
the jurisdictional amount, removal to federal court is allowed only if the removing defendant can
establish to a ‘legal certainty’ that the amount in controversy exceeds the jurisdictional
threshold.” Perez v. Cellco P’ship, No. 8:14-CV-926-T-30TGW, 2014 WL 2215745, at *2
(M.D. Fla. May 28, 2014) (quoting Wilt v. Depositors Ins. Co., No. 6:13-cv-1502-Orl-36KRS,
2013 WL 6195768, at *5 (M.D. Fla. Nov. 26, 2013)).
The Middle District of Florida decisions found the newly amended § 1446(c)(2)
applicable in appropriate Florida-based cases because Florida permits recovery in excess of the
amount of damages specified in a state court complaint. Perez, 2014 WL 2215745, at *2 (citing
Wilt, 2013 WL 6195768, at *6 n.6). Similarly, Alabama also permits recovery of damages
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exceeding the amount claimed in the ad damnum clause. See Ala. R. Civ. P. 54(c) (“[E]very
final judgment shall grant the relief to which the party in whose favor it is rendered is entitled,
even if the party has not demanded such relief in the party’s pleadings.”).
For these reasons, the court finds that the amended § 1446(c)(2) governs in this case. As
contemplated by § 1446(c)(2)(A)(ii), the initial pleading demands a money judgment and “State
practice . . . permits recovery of damages in excess of the amount demanded.” Therefore, the
court finds it must evaluate whether the Defendants have shown, by a preponderance of the
evidence, that the amount in controversy in this case exceeds $75,000.
2. Analysis of the Evidence in this Case
Here, the Plaintiffs have affirmatively stated in their state court Complaint and their
Motion to Remand that their damages do not exceed $74,500. On the other hand, the Defendants
argue that the presence of Liberty Mutual, the Plaintiffs’ uninsured motorist carrier, as a party in
the suit means the amount in controversy exceeds $1 million, the amount of liability coverage
available to the Defendants. Because Liberty Mutual would only be required to pay in the event
that any recovery exceeds $1 million, the Defendants argue that Liberty Mutual’s continuing
presence indicates an amount in controversy exceeding the jurisdictional threshold.
In response to this argument, the Plaintiffs counter that Liberty Mutual was included as a
party at the outset of litigation so they could “hedge their bets,” as they had no way of knowing
whether and to what extent the Defendants were insured. (Doc. # 8 at 10–11 ¶ 29.) They
maintain Liberty Mutual was still in the suit at the time of the Motion to Remand because they
“[had] no way of knowing, as the removing Defendant has not filed an answer to the complaint
and neither has his employer, what defenses might be raised or the financial state of Defendants’
insurer . . . .” (Id. at 11 ¶ 29.) Thus, at the time of the Motion to Remand Plaintiffs continued to

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argue they needed to “hedge their bets” when it came to the availability of insurance coverage to
the Defendants. Now, however, in response to the Defendants’ evidence of the limits of their
own liability coverage, the Plaintiffs have filed a motion to dismiss Liberty Mutual.2
In determining whether diversity jurisdiction exists, the court must examine the facts as
they stood on November 25, 2014—the date of removal. See Leonard v. Enterprise Rent a Car,
279 F.3d 967, 972 (11th Cir. 2002) (“[W]e note that for purposes of this challenge to the subject
matter jurisdiction of the district court, the critical time is the date of removal.”). It may also use
its “judicial experience and common sense in determining whether the case stated in a complaint
meets federal jurisdictional requirements.” Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1062
(11th Cir. 2010). Keeping these precedents in mind, the court will next proceed to determine
whether it is more likely than not that the jurisdictional threshold has been met in this case.
As discussed above, the main factor urged by the Defendant as weighing in favor of
federal jurisdiction in this case is the fact that, as of the time of removal, Liberty Mutual
remained in the case as a party. Because Liberty Mutual would only be required to pay in the
event that total liability exceeds $1 million,3 Defendants argue the amount in controversy
inescapably meets the diversity jurisdiction threshold of more than $75,000.
While Liberty Mutual’s continued presence is a relevant factor, the court finds it is
outweighed by other evidence in this instance. First, although Liberty Mutual was a party at the
time of removal, and post-removal changes cannot be determinative, the court does consider the
Plaintiffs’ motion to dismiss as evidence of their intention to limit their damages to $74,500, as
claimed in the Complaint. Also, the Plaintiffs have attached records of each of their medical

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While the court’s finding that it lacks jurisdiction in this case prevents it from granting that motion, it does
consider the filing of the motion as evidence, with confidence that the Circuit Judge in Bullock County will grant it.
3
Defendants attached a copy of a policy owned by Defendant Singh to the Notice of Removal, showing $1,000,000
in Single Limit liability coverage. (Doc. # 1-2 at 2.)

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bills stemming from the accident. According to those records, Regina Harris has incurred
medical costs in the amount of $14,178.33, while Donald Harris has incurred costs in the amount
of $7,381.95. These costs alone total substantially less than $75,000. To be sure, the Plaintiffs
have alleged other damages, to include permanent injury, future medical costs, and permanent
inability “to pursue many normal and usual activities.” (Doc. # 1-1 at 8 ¶ 13d.) The court
recognizes that no exact value can be assigned to these sources of damages, and any amount to
be awarded in the future is in fact speculative. However, damage caused to the vehicles was not
extensive or severe, as indicated by the post-accident photographs attached to the Motion to
Remand. (Doc. # 8-3 at 2–3.) No one was killed in the accident, and the vehicles involved
sustained relatively minor damage. This causes the court to infer that future damages will
accordingly not be extensive.
Additionally, the court takes seriously the Plaintiffs’ consistent representations through
counsel of their own damages as not exceeding $74,500, and that “the Plaintiffs have made
abundantly clear that they will not seek damages in excess of $74,500.” (Doc. # 13 at 3–4 ¶ 12).
While the “legal certainty” test from Burns no longer applies in this scenario, the limitation on
the damages demand is relevant evidence to be weighed, as counsel for Plaintiffs have a duty of
candor to the tribunal, and therefore the court takes these representations as true and correct.
They cannot be determinative, but the court considers them another relevant factor in assessing
the amount in controversy.
Considering all of these factors as a whole, the court finds that the amount in controversy
threshold has not been satisfied in this case by a preponderance of the evidence. The Defendants
have the burden of establishing federal jurisdiction because they removed the case. In the
absence of evidence other than speculation about the implications of Liberty Mutual’s continued

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presence as a party, which will no longer exist when the state court grants the Plaintiffs’ Motion
to Dismiss, and in light of the multiple other countervailing factors discussed above, the court
finds it is not “more likely than not” that the amount in controversy exceeds $75,000.
Contrary to the Defendants’ assertions, the fact that the Plaintiffs have not expressly
stipulated to their limitations on damages is not dispositive. Much in the same way that the court
agrees with the Defendants that the Plaintiffs’ limitations on damages are “not determinative” in
capping the amount in controversy, it finds the limitations are also not determinative in proving
the amount in controversy exceeds $75,000. To support their argument, the Defendants cite
Moss v. Voyager, 43 F. Supp. 2d 1298, 1302–03 (M.D. Ala. 1999), in which the Plaintiff did not
demand a specific amount of damages in the complaint, then stipulated both that the amount
controversy “[did] not exceed $75,000” and that “under no circumstances [would she] seek nor
accept more than $75,000 even if the jury verdict exceeds that amount.” Here, the Plaintiffs’
representations resemble those declarations, to the extent the Plaintiffs’ counsel states as an
officer of the court, on behalf of his clients, that they “will not seek damages in excess of
$74,500.” The Plaintiffs have consistently represented their damages as less than $74,500 since
their initial Complaint, unlike the plaintiff in Moss.
The instant case is also distinguishable from other opinions of this court which found
diversity jurisdiction existed when an uninsured/underinsured motorist carrier was named as a
party. The first of these two opinions is Oliver v. Rodriguez, No. 2:08-cv-0081-WHA, 2008 WL
928328 (M.D. Ala. Apr. 4, 2008) (Albritton, J.), also cited by Defendants in their Response to
the Motion to Remand. In Oliver, as in the instant case, the plaintiff incurred injuries in an
automobile accident and named his uninsured motorist carrier in addition to other defendants.
Id. at *1. Unlike the instant case, the plaintiff sought “no specified damages” and refused, when

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asked, to stipulate to damages or to stipulate to the dismissal of the uninsured motorist carrier.
Id. at *2, *4. The court found it had jurisdiction and denied the motion to remand “[b]ased on
the Plaintiff’s naming of [the UIM carrier], his failure to dismiss [the UIM carrier] after learning
of the primary insurer’s policy limits, his refusal to stipulate to less than $75,000, and his
estimation of actual damages.” Id. at *4. Here, not only have the Plaintiffs specifically claimed
less than $75,000 in their Complaint, and maintained from the start that their damages fall below
the jurisdictional threshold, but they have also indicated their willingness to stipulate to the
dismissal of Liberty Mutual by filing a motion to that effect. For these reasons, the court finds
Oliver distinguishable from the instant case.
Second, this court found it had diversity jurisdiction in Hudson v. McGowan, No.
3:10cv56-WHA, 2010 WL 1416510 (M.D. Ala. Apr. 8, 2010) (Albritton, J.). There, the
plaintiffs also did not demand a specified amount in damages in the state court complaint, and
also named their underinsured motorist carrier as a party to the suit. Id. at *1. The defendant
submitted evidence illustrating that her insurance policy limit was $100,000. Unlike the instant
case, the defendant also submitted a letter from the plaintiffs’ attorney, stating the plaintiffs
“[would] not take anything less than policy limits.” Id. at *2. This court found it had
jurisdiction due to “evidence of the letter, evidence that [the defendant’s] policy limits exceed
$75,000, and the fact that the underinsured motorist carrier was also sued.” Id. The letter is the
primary distinguishing feature of Hudson as compared to the instant case, and it is a critical one,
along with the fact that the initial complaint there sought an unspecified amount of damages.
While the plaintiffs’ attorney in Hudson wrote a letter seeking at least $100,000 by stating his
clients would not accept less than policy limits, the Plaintiffs here have been consistent in
representing that they seek no more than $74,500. While the cases have some factors in

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common, the absence of such a letter in combination with the other evidence discussed above
tips the balance in favor of remand in this case.
Because the preponderance standard applies to the jurisdictional inquiry, no one piece of
evidence is dispositive in this case. However, the burden of establishing jurisdiction is on the
Defendants, and they have argued only that the presence of Liberty Mutual implies the amount in
controversy is higher than $75,000 and that the Plaintiffs have fallen short of a fully binding
stipulation that they will not accept any damages award exceeding their demand. The court finds
these arguments insufficient to establish the amount in controversy by a preponderance of the
evidence in light of the low amount of medical bills thus far, the lack of severe damage from the
collision indicated by the photographs of the scene, the motion to dismiss Liberty Mutual, and
the Plaintiffs’ counsel’s consistent representations, as an officer of the court, that their damages
do not exceed, nor will the Plaintiffs seek more than, $74,500.
V. CONCLUSION
For the stated reasons, it is hereby ORDERED as follows:
(1) Plaintiffs’ Motion to Remand (Doc. # 8) is GRANTED.
(2) This case is REMANDED to the Circuit Court of Bullock County, Alabama. The
clerk is DIRECTED to take appropriate steps to effect the remand.
(3) Other pending motions are left for determination by the state court, but with reliance
on Plaintiffs’ counsel’s representations and with confidence that the state court will
grant the Plaintiffs’ Motion to Dismiss Liberty Mutual as a Defendant.
DONE this 28th day of January, 2015.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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