Scott v. Food Giant Supermarkets, Inc.

Filing 10

MEMORANDUM OPINION AND ORDER GRANTING 5 MOTION to Remand and this case is hereby REMANDED to the Circuit Court of Butler County, AL; directing the clerk to take steps necessary to effectuate the remand, as further set out in order. Signed by Honorable Judge Susan Russ Walker on 6/1/17. (djy, ) Modified on 6/1/2017 to clarify text to reflect as certified copy of order mailed to Circuit Court of Butler County, AL (qc/djy, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DEBRA G. SCOTT,

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Plaintiff,
v.
FOOD GIANT SUPERMARKETS, INC.,
Defendant.

CASE NO. 2:17-cv-93-SRW

MEMORANDOM OPINION AND ORDER1
This matter is before the court on plaintiff’s motion to remand. (Doc. 5). Defendant
filed a response to the motion (Doc. 7). Upon review of the motion and the record, the court
concludes that the motion is due to be granted.
LEGAL STANDARDS
“It is by now axiomatic that the inferior courts are courts of limited jurisdiction.
They are ‘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.” Griffith v. Wal-Mart Stores East, L.P.,
884 F. Supp. 2d 1218, 1221 (N.D. Ala. 2012) (citing Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405, 409 (11th Cir. 1999)). “[B]ecause removal jurisdiction raises significant
federalism concerns, federal courts are directed to construe removal statutes strictly.” Id.
(citing Univ. of S. Ala., 168 F.3d at 411).

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Pursuant to 28 U.S.C. § 636(c), the undersigned Magistrate Judge exercises final dispositive authority in
this matter pursuant to the consent of the parties. (Docs. 8, 9).

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The removing party has the burden of establishing subject matter jurisdiction. Id.
“[B]ecause the jurisdiction of federal courts is limited, the Eleventh Circuit Court of
Appeals favors remand of cases that have been removed where federal jurisdiction is not
absolutely clear.” Id. (quoting Lowe’s OK’d Used Cars, Inc. v. Acceptance Ins. Co., 995
F. Supp. 1388, 1389 (M.D. Ala. 1998)). “In fact, removal statutes are to be strictly
construed, with all doubts resolved in favor of remand.” Id. (quoting Lowe’s, 995 F. Supp.
at 1389).

“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 section 1446(a).” 28 U.S.C. § 1447(c). “If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded.” Lowery, 483 F.3d at 1213 n. 64.
BACKGROUND
Plaintiff filed this action in state court on January 11, 2017. (Doc. 1-4 at 1).
On January 17, 2017, defendant was served with the summons and complaint.
(Doc. 1-2 at 1). Plaintiff alleges that she was injured when she fell on unfinished or
uneven concrete at one of defendant’s stores. (Doc. 1-6 at 2). She brings claims for
negligence and wantonness based upon this incident. (Doc. 1-6 at 2,4). Plaintiff
seeks “damages of $50,000 or less against defendants in an amount to be
determined” for the negligence count. (Doc. 1-6 at 4). She also claims “punitive

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damages of $50,000 or less against defendants in an amount to be determined” for
the wantonness count. (Doc. 1-6 at 6).
Defendant filed a notice of removal on February 16, 2017. (Doc. 1).
Defendant contends that all requirements for removal have been satisfied. (Doc. 1
at 6). In particular, defendant maintains that the amount in controversy has been
satisfied because plaintiff “asserts two different causes of action; is faced with two
different burdens of proof; must establish additional conduct for the second cause of
action; and seeks recovery of up to $50,000.00 for each of two distinct types of
damages.” (Doc. 1 at 6). In other words, defendant argues that plaintiff’s claims for
damages should be aggregated and maintains that the amount in controversy set forth
in the complaint is $100,000. (Doc. 1 at 6).
Plaintiff filed a motion to remand on March 14, 2017. (Doc. 5). In it, she
insists that her counts are based on distinct causes of action “that are mutually
exclusive of each other” so that she “can only recover under one cause and thus is
limited to a maximum amount of $50,000.” (Doc. 5 at 1). Defendant responds that
the claims should be aggregated because plaintiff has claimed two different types of
damages and could recover under both counts for a total of up to $100,000 in
damages. (Doc. 7 at 3–4). Defendant contends that, absent a binding stipulation that

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plaintiff will neither seek nor accept more than $75,000, the motion to remand is due
to be denied.2 (Doc. 7 at 6).
DISCUSSION
Although plaintiff explicitly seeks an amount of damages that is less than the
jurisdictional amount, the sum demanded in the initial pleading is not automatically
deemed to be the amount in controversy because the state of Alabama permits the recovery
of damages in excess of the amount demanded. See 28 U.S.C. §1446(c)(2)(A)(ii)
(Providing that the sum demanded in good faith in the complaint shall be deemed to be the
amount in controversy, except, inter alia, where the complaint seeks a money judgment
but state practice permits recovery of damages in excess of the amount demanded.); see
also 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.”). Under such circumstances, defendant must establish the amount in
controversy for diversity jurisdiction by a preponderance of the evidence. See Harris v.
Aghababaei, 81 F. Supp. 3d 1278, 1280–81 (M.D. Ala. 2015) (discussing the effect of the
Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, §
103, 125 Stat. 758, 762 (2011) on Eleventh Circuit precedent concerning the burden of
proof). Defendant’s argument that it has met this standard is based upon the aggregation of
plaintiff’s claims. However, “[w]hile the claims of one plaintiff against one defendant are
generally aggregated, under Alabama law a plaintiff cannot receive a ‘double recovery’ for
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Because the court finds that the amount in controversy falls below the jurisdictional
amount, this argument will not be addressed.
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what is essentially one viable cause of action.” Daniel v. Nationpoint, No. 2:07-CV-640,
2007 WL 4533121, *2 (M.D. Ala. Dec. 19, 2007). Whether or not plaintiff’s claims should
be aggregated is determined by whether the claims constitute “standalone claim[s] [or] a
theory of recovery.” See Andrews v. Medical Excess, LLC, 863 F. Supp. 2d 1137, 1140
(M.D. Ala. 2012) (discussing the difference between differing legal theories of recovery
and separate claims) (citing Holmes v. Boehringer Ingelheim Pharm., Inc., 158 F. Supp. 2d
866 (N.D. Ill. 2001)). One court articulated this distinction as follows, in the context of the
case then pending before it:

Both claims rely on the same facts and allege a failure to warn; all that
differs between the two claims are the allegations of the nature of the
defendants’ duties. A right of recovery is distinct from a theory of
liability; a plaintiff may have only one right of recovery though she
‘advances a variety of legal theories to support that recovery.’
Holmes, 158 F. Supp. at 868 (deciding that negligence and strict liability are “merely
different bases for a single recovery”).
Plaintiff’s claims in this proceeding represent two differing – and mutually
exclusive – theories of liability rather than two independent rights of recovery or
“standalone” claims. Both counts concern the same incident and are stated almost
identically, except that, in the second count, “wantonness” is used in place of “negligence.”
“Under Alabama law, ‘[n]egligence and wantonness are two distinct tort concepts of
actionable culpability; consequently, they are defined by differing elements.’” Kerns v.
Sealy, 496 F. Supp. 2d 1306, 1318 (S.D. Ala. 2007) (citing S.B. v. Saint James School, 959
So.2d 72, 89 n. 7 (Ala. 2006)). These two theories of liability reflect two entirely different

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mental states and, as the Eleventh Circuit has recognized, “[t]he Alabama courts have
stated that negligence and wantonness are mutually exclusive.” Deviner v. Electrolux
Motor, AB, 844 F.2d 769, 773 (11th Cir. 1988). See also Cook v. Branick Mfg., Inc., 736
F.2d 1442, 1448 (11th Cir. 1984) (same); Walker v. Humana Med. Corp., 415 So. 2d 1107,
1109 (Ala. Civ. App. 1982) (“negligence and wantonness cannot exist in the same
action.”); Calvert & Marsh Coal Co. v. Pass, 393 So. 2d 955, 957 (Ala. 1980) (noting prior
Alabama cases holding that “wantonness and negligence cannot exist in the same act or
omission.”); Tombrello v. McGhee, 211 So. 2d 900, 902 (Ala. 1968) (“We agree that
wantonness and negligence cannot exist in the same act [.]”); Thompson v. White, 274 Ala.
413, 420, 149 So. 2d 797, 804 (1963) (“Wantonness and negligence cannot exist in the
same act or omission, for the reason that wanton or wilful misconduct implies mental
action; whereas that fact is absent in mere negligence. Wantonness and negligence are
hence necessarily distinct colorings of a wrong to another's injury.”). Because plaintiff
advances two mutually exclusive legal theories for recovery from the same injury, her
claims cannot be aggregated to meet the jurisdictional requirements. See Andrews, 863 F.
Supp. 2d at 1141 (deciding the amount in controversy based on the value of the harm
alleged as a result of a single injury instead of by aggregating the claims); Daniel, 2007
WL 4533121 at *2 (declining to aggregate claims where a plaintiff cannot receive a double
recovery for what is essentially one viable cause of action); Hardy v. Jim Walter Homes,
Inc., No. 06-0687-WS-B, 2007 WL 1889896, *4 (S.D. Ala. Jun. 28, 2007) (“The law is

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clear that claims seeking essentially the same recovery under varying theories are not to be
aggregated.”).3

Plaintiff has claimed damages of $50,000 or less for each of her mutually
exclusive claims for recovery. Therefore, this court lacks subject matter jurisdiction
because the requisite amount in controversy has not been established.
CONCLUSION
For the foregoing reasons, it is ORDERED that Plaintiff’s motion to remand
(Doc. 5) is GRANTED, and this case is hereby REMANDED to the Circuit Court of Butler
County, Alabama.
The Clerk of the Court is DIRECTED to take steps necessary to effectuate the
remand.
DONE, on this the 1st day of June, 2017.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge

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Defendant has argued that the claims must be aggregated because, in order for plaintiff to recover
punitive damages for wantonness, she must first receive compensatory damages. This argument is
unpersuasive. If plaintiff recovers under the wantonness theory, nominal compensatory damages
may be awarded along with the punitive damages. See Combined Servs., Inc. v. Lynn Electronics
Corp., 888 F.2d 106, 107 n. 4 (11th Cir. 1989).
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