Black v. Corporate Transportation, Inc. et al

Filing 20

MEMORANDUM OPINION AND ORDER: It is ORDERED that defendants' 11 motion to substitute an exhibit to the notice of removal is GRANTED. It is further ORDERED that plaintiff's 5 motion to remand is GRANTED, and this case is hereby REMANDED to the Circuit Court of Montgomery County, Alabama. Plaintiff's request for leave to amend its complaint is therefore MOOT. Signed by Honorable Judge Susan Russ Walker on 2/6/2019. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BETTY JEAN BLACK,
Plaintiff,
v.
CORPORATE TRANSPORTATION,
INC., and RODNEY BENNETT,
Defendants.

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CASE NO. 2:18-cv-386-SRW

OPINION AND ORDER
This matter is before the court on plaintiff’s motion to remand and amend her complaint,
Doc. 5, and defendants’ motion to substitute Exhibit C to its notice of removal. This case was
initially assigned to the undersigned as presiding judge, and the parties subsequently consented in
writing to the exercise of final dispositive jurisdiction by the magistrate judge pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73(a). Doc. 15; Doc. 16. The motion to
remand and motion to substitute exhibit have been briefed and taken under submission without
oral argument. For the reasons stated herein, the defendants’ motion to substitute exhibit is due to
be GRANTED, and plaintiff’s motion to remand is also due to be GRANTED.
I. BACKGROUND AND FACTS1
Plaintiff initiated this suit on November 2, 2017 by filing a complaint in the Circuit Court
for Montgomery County, Alabama. Doc. 1-1. Plaintiff was involved in a vehicle collision with a

1

These are the facts only for the purposes of the court’s ruling on the pending motions. They are
gleaned from the notice of removal, Doc. 1, and exhibits thereto; the motion to remand, Doc. 5,
and exhibits thereto; defendant’s answer, Doc. 10; defendants’ motion to substitute exhibit, Doc.
11, and exhibits thereto; defendants’ evidentiary submission in opposition to motion to remand;
Doc. 12; and defendants’ response to the motion to remand, Doc. 13.

truck operated by defendant Rodney Bennett during the course of his employment with defendant
Corporate Transportation (collectively “defendants”). Id. Plaintiff’s complaint alleges that, as a
result of Bennett’s negligence, recklessness and wantonness, and as a result of Corporate
Transportation’s negligent and wanton entrustment, and negligent training, retention, and
supervision, plaintiff suffered substantial injuries. Id. Plaintiff seeks compensatory damages as
well as court costs and attorney fees, but her complaint does not specify the amount of damages
she intends to claim. Id.
When plaintiff filed her complaint, plaintiff also served the complaint and summons,
interrogatories, and discovery requests on both defendants. See Doc. 1-2 at 14-44. These
documents were delivered to defendant Corporate Transportation on November 6, 2017. Id. at 78.
However, attempts to serve defendant Bennett were unsuccessful. See id. at 79-81. Corporate
Transportation filed its answer to plaintiff’s complaint on March 19, 2018, id. at 45-54, along with
a motion for a qualified protective order, id. at 55-57, notice of deposition, id. at 60-61, discovery
request, id. at 62-69, and interrogatories, id. at 70-77. Defendants filed their notice of removal,
which is premised on diversity jurisdiction, on April 3, 2018. Doc. 1 at 1.
II. THE PARTIES’ POSITIONS
According to the defendants, their notice of removal is timely because defendant Bennett
has not been served the original summons and complaint, and because Corporate Transportation
consents to such removal. Id. at 3. Defendants allege complete diversity of parties, and state that,
based on plaintiff’s incurred medical expenses, totaling $10,647.69 as of September 8, 2017,
anticipated future medical expenses, damages for mental anguish, damages for pain and suffering,
and punitive damages, that it is reasonable to conclude that the damages will exceed the
jurisdictional threshold of $75,000. Id. at 2-3.

Plaintiff’s motion to remand does not dispute the timeliness of defendants’ removal or
diversity of the parties. Doc. 5. Plaintiff argues that the case is due to be remanded because the
amount in controversy requirement has not been met. Id. ¶ 1. Plaintiff maintains that defendants
failed to provide evidence to this court that the amount in controversy exceeds the jurisdictional
minimum and that defendants’ pre-suit offer of $2,500 demonstrates that defendants “clearly value
[the] case below the $75,000 threshold.” Id. ¶¶ 3-4. Further, plaintiff seeks leave to amend its state
court complaint to restrict damages sought to $74,999. Id. ¶ 5; Doc. 5-2 ¶ 42.
Defendants argue, in response to plaintiff’s motion to remand and amend its complaint,
that on three separate occasions, plaintiff’s counsel provided estimates of plaintiff’s claim that
were in excess of the jurisdictional threshold. Doc. 13 at 5. Defendants further argue that the
plaintiff’s pre-removal settlement demands, negotiations, and accompanying documentation
support the inference that plaintiff’s counsel attempted to make a reasonable valuation of plaintiff’s
claims, and that the plaintiff’s own valuations are entitled to great weight in determining the
amount in controversy. Id. at 5-6. In support of their notice of removal, defendants submit evidence
of Corporate Transportation’s insurance policy declarations, emails detailing plaintiff’s pre-suit
demand of $147,500, and an affidavit by a claims representative of Corporate Transportations
insurance carrier which states that on March 28, 2018, plaintiff’s attorney indicated that plaintiff
would be unwilling to settle for less than “six figures.” Doc. 12. Defendants also submit a motion
to substitute an exhibit to the notice of removal, which includes an accident report and plaintiff’s
medical bills and record, along with plaintiff’s pre-suit settlement demand letter. Doc. 11-1.
III. LEGAL STANDARDS

A. REMOVAL

“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).
The removing party has the burden of establishing subject matter jurisdiction. Griffith, 884
F. Supp. 2d at 1221. “[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).
In considering a motion to remand, a district court “has before it only the limited universe
of evidence available when the motion to remand is filed – i.e., the notice of removal and
accompanying documents,” and “[i]f that evidence is insufficient to establish that removal was
proper or that jurisdiction was present, neither the defendants nor the court may speculate in an
attempt to make up for the notice’s failings.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1214-15
(11th Cir. 2007). However, “a defendant may add post-removal evidence of jurisdiction to the
record when that evidence is otherwise admissible.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d
744, 773 (11th Cir. 2010) (considering evidence establishing the amount in controversy
requirement (citing Lowery, 483 F.3d at 1218-21)). See also Travaglio v. Am. Express Co., 735
F.3d 1266, 1269 (11th Cir. 2013) (“we need not vacate a decision on the merits if the evidence

submitted during the course of the proceedings cures any jurisdictional pleading deficiency by
convincing us of the parties' citizenship” (considering evidence establishing diversity of
citizenship)); Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000) (“[w]e align
ourselves with our sister circuits in adopting a more flexible approach, allowing the district court
when necessary to consider post-removal evidence in assessing removal jurisdiction”). Any
jurisdictional facts supporting removal “must be judged at the time of the removal, and any postpetition affidavits are allowable only if relevant to that period of time.” Id. at 949 (quoting Allen
v. R&H Oil Co., 63 F.3d 1326, 1335 (5th Cir. 1995)).
Removal procedure is governed by 28 U.S.C. § 1446, which “contemplates two ways that
a case may be removed based on diversity jurisdiction.” Moore v. Wal-Mart Stores East, L.P.,
2015 WL 5813164, *4 (M.D. Ala. 2015) (report and recommendation adopted). “The first way
(formerly referred to as ‘first paragraph removals’) involves civil cases where the jurisdictional
grounds for removal are apparent on the face of the initial pleadings.” Id. (quoting Griffith v. WalMart Stores East, L.P., 884 F. Supp. 2d 1218, 1223 (N.D. Ala. 2012)). See also 28 U.S.C.
§1446(b)(1).2 “The second way (formerly referred to as ‘second paragraph removals’)
contemplates removal where the jurisdictional grounds later become apparent through the
defendant’s receipt 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.’” Id. (quoting Griffith, 844

2

“The Court in Griffith explained the ‘first paragraph’ and ‘second paragraph’ distinction made throughout
case law analyzing this statute: “[t]he now defunct distinction between ‘first paragraph’ and ‘second
paragraph’ removals is rendered obsolete by a clearer version of the removal statute, as amended by the
Federal Courts Jurisdiction and Venue Clarification Act of 2011, PL 112-63, December 7, 2011, 125 Stat.
758, which added subsections to 28 U.S.C. § 1446(b). The substance of the removal procedure is not
affected by the stylistic changes to the statute; therefore, the previous case law discussing ‘first paragraph’
and ‘second paragraph’ removals is still applicable despite its outdated terminology… .” Moore, 2015 WL
5813164, at *4 n. 3 (citing Griffith, 884 F. Supp. 2d at 1223 n.1).

F. Supp. 2d at 1223). See also 28 U.S.C. § 1446(b)(3). “Demand letters, settlement offers, and
even emails estimating damages may constitute ‘other paper.’” Lee v. Lilly Trucking of Virginia,
Inc., 2012 WL 960989 *2 (M.D. Ala. 2012). However, oral settlement demands alone are
insufficient to constitute an “other paper”:
There is ample persuasive authority that Plaintiff's oral settlement communications
do not qualify as "other paper" under § 1446(b)(3). In Williams v. Litton Loan
Servicing, LP, 2011 WL 521624 (M.D. Ala. Feb. 15, 2011), this court observed that
numerous other courts have concluded that "other paper" means a written
document, with limited exceptions permitted for "deposition testimony and
statements made in open court.” Based on this collective authority and the statute's
use of the word "paper," the court concluded that counsel for plaintiff's "oral
settlement demand and the voicemail fail[ed] the 'other paper' requirement of §
1446(b) because they [were] plainly not written documents created by the plaintiff."
Id. The oral settlement demand, therefore, was not "other paper" upon which
Defendants could remove the case.
Courts also have recognized that sound policy reasons undergird the conclusion
that § 1446(b)(3)'s "other paper" element requires a written document.
Significantly, the requirement of a written document avoids collateral litigation on
issues of credibility disputes. See State Farm Fire & Cas. Co. v. Valspar Corp., 824
F. Supp. 2d 923, 935 (D.S.D. 2010); see also Simpson v. Primerica Life Ins., Co.,
2015 WL 9315658, at *8 (M.D. Ala. Dec. 3, 2015) (espousing policy considerations
for excluding oral statements from § 1446(b)(3)'s "other paper" requirement,
including that an oral settlement demand does not permit a court to examine the
plaintiff's words and their meaning for purposes of evaluating the amount in
controversy), report and recommendation adopted, 2015 WL 9413876 (M.D. Ala.
Dec. 22, 2015). Based upon the foregoing authority, the court finds that Plaintiff's
oral statements are not "other paper" within the meaning of § 1446(b)(3) and that
Defendants cannot rely on those statements to trigger the commencement of the
statute's removal clock.
Wood v. ADT LLC, 2016 U.S. Dist. LEXIS 87885 *10-11 (M.D. Ala. 2016). If removal is based
on an “other paper” and not the initial pleading, the “other paper” must be one which the defendant
receives after the initial pleading is filed. Jade East Towers Developers v. Nationwide Mut. Ins.
Co., 936 F. Supp. 890, 891 (N.D. Fla. 1996) (citing Chapman v. Powermatic, Inc., 969 F.2d
160,163-64 (5th Cir. 1992)).

B. DIVERSITY OF DEFENDANTS

“Where, as here, the purported statutory basis for federal jurisdiction is 28 U.S.C.
§ 1332(a)(1) – a civil action satisfying the amount-in-controversy requirement and between
“citizens of different States” – there must be “complete diversity of citizenship. That is, diversity
jurisdiction does not exist unless each defendant is a citizen of a different State from each
plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). If a case has been
removed, diversity jurisdiction is determined at the time of removal. PTA-Fla, Inc. v. ZTE USA,
Inc., 844 F.3d 1299, 1306 (11th Cir. 2016) (citing Tillman v. R.J. Reynolds Tobacco, 253 F.3d
1202, 1306 n.1 (11th Cir. 2001)). “[A] party removing a case to federal court based on diversity
of citizenship bears the burden of establishing the citizenship of the parties.” Rolling Greens MHP,
L.P. v. Comcast SCH Holdings, L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (citing Williams v.
Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)). See also Lamm v. Bekins Van Lines,
Co., 139 F. Supp. 2d 1300, 1314 (M.D. Ala. 2001) (“To invoke removal jurisdiction on the basis
of diversity, a notice of removal must distinctly and affirmatively allege each party’s citizenship.
The allegations must show that the citizenship of each plaintiff is different from that of each
defendant.”).

C. TIMELINESS OF REMOVAL
For a second paragraph removal to be timely, it must be filed “within thirty days after
receipt by the defendant … from which it may be first ascertained that the case is one which is or
has become removable.” 28 U.S.C. § 1446(b)(3). As explained by the court in Lowery:
“Under the second paragraph, 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.

483 F.3d at 1213 n.63. The thirty-day removal clock “starts ticking” once all three conditions are
present. Allen v. Thomas, 2011 WL 197964 *3 (M.D. Ala. 2011).
In a case with multiple defendants, the Eleventh Circuit applies the last-served defendant
rule, which recognizes that defendants “are not required to take action—whether seeking removal
or otherwise responding to another defendant’s notice of removal—until they are properly served,
‘regardless of when-or if-previously served defendants had filed such notices.’” Bailey v. Janssen
Pharmaceutica, Inc., 536 F.3d 1202, 1208 (11th Cir. 2008). Where a later-served defendant files
a notice of removal, “any earlier-served defendant may consent to the removal even through that
earlier-served defendant did not previously initiate or consent to removal.” 28 U.S.C. § 1446
(2)(C).

D. AMOUNT IN CONTROVERSY REQUIREMENT
To establish jurisdiction under 28 U.S.C. § 1332(a), in addition to complete diversity of
citizenship, the matter in controversy must also exceed the sum or value of $75.000. “If the
jurisdictional amount is either stated clearly on the face of the documents before the court, or
readily deducible from them, then the court has jurisdiction. If not, the court must remand.”
Lowery, 483 F.3d at 1211. When the complaint does not specify the amount of damages sought,
“the court considers the initial complaint or later received paper – and determines whether that
document and the notice of removal unambiguously establish federal jurisdiction.” Id. at 1213.
However, where the pleadings are inadequate, the court may review the record to find evidence
that diversity jurisdiction exists. Williams, 269 F.3d at 1319-20. Defendants may also introduce a
wide range of evidence including “their own affidavits, declarations, or other documentation”
supporting removal. Pretka, 608 F.3d at 755.
IV. DISCUSSION

Defendants submit a motion to substitute Exhibit C to the notice of removal to correct the
omission of the accident and plaintiff’s medical records that should have accompanied the pre-suit
settlement demand. Doc. 11. According to Federal Rule of Civil Procedure 15(a)(1), “a party may
amend its pleading once as a matter of course within (A) 21 days after serving it.: Fed. R. Civ. P.
15. Therefore, defendants’ motion to substitute Exhibit C is due to be granted.
Plaintiff’s motion to remand does not challenge diversity of citizenship in this case.
Defendants’ notice of removal properly alleges diversity of citizenship, stating that plaintiff is a
citizen of Alabama, and that both defendants Bennett and Corporate Transportation are citizens of
Florida. Doc 1 at 2. Plaintiff likewise does not challenge the timeliness of defendants’ removal,
and defendants state that removal is timely because Bennett has yet to be served, and therefore his
“30-day window for removal has not yet started.” Doc. 1 at 3.
Plaintiff’s motion to remand and defendants’ notice of removal and response to plaintiff’s
motion to remand address the amount in controversy requirement of $75,000. Plaintiff’s motion to
remand points to defendant Corporate Transportation’s pre-suit counter-offer of $2,500 in
response to her $150,000 demand to argue that the amount in controversy requirement has not
been met. Doc. 5 ¶ 4. Plaintiff further requests leave to amend her complaint to seek damages no
less than $74,999. Id. ¶ 5. Defendants premise their removal on plaintiff’s pre-suit settlement
demand of $150,000, as well as the $10,647.69 in pre-suit medical expenses that were incurred by
plaintiff as a result of the vehicle collision with Bennett. Doc. 1 at 2-3. Defendants further argue
that plaintiff’s additional pre-suit settlement demand of $147,500 and plaintiff’s counsel’s oral
representation that “unless six (6) figures were offered, Defendants should not bother making a
settlement offer” are relevant in determining the amount of controversy at the time of removal.
Doc. 13 at 6. However, while settlement offers may be entitled to weight in determining whether

the amount in controversy has been met where they “provide specific information to support the
plaintiff’s claim for damages” and “suggest the plaintiff is offering a reasonable assessment of the
value” of a claim, Jackson v. Select Portfolio Servicing, Inc., 651 F. Supp. 2d 1279, 1281 (S.D.
Ala. 2009) (quoting Golden Apple Mgmt. Co. v. Geac Computers, Inc., 990 F. Supp. 1364, 1368
(M.D. Ala. 1998)) (internal quotations omitted)), plaintiff’s motion to remand is due to be granted
for the reasons explained below.
Whenever it appears that subject matter jurisdiction is lacking, “a federal court must inquire
sua sponte into the issue.” Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000)
(citing Fitzgerald v. Seaboard Sys. R.R. Inc., 760 F.2d 1249, 1251 (11th Cir. 1985) (per curiam)).
While defendants submit evidence that Bennett was never served with the summons and
complaint, and correctly argue that the Eleventh Circuit applies the last-served defendant rule in
examining the timeliness of a removal action, defendants have failed to allege that defendant
Bennett received an “other paper” upon which removal jurisdiction may be based, and plaintiff’s
motion to remand is therefore due to be granted. Defendants submitted several documents as
evidence that the amount in controversy requirement has been met. Among these are:
(1) plaintiff’s demand letter of $150,000 and medical files, dated September 8,
2017, showing $10,647.69 in medical expenses, Doc. 11-1;
(2) plaintiff’s counsel’s email, dated September 13, 2017, communicating a
settlement demand of $147,500, Doc. 12 at 6;
(3) the affidavit of Tina Zblewski, a claims representative for defendant Corporate
Transportation, Inc.’s insurance carrier, dated April 23, 2018, Doc. 12 at 8-10.
Zblewski’s affidavit and attached notes detail a telephone conversation Zblewski had with
plaintiff’s attorney on March 28, 2018. Zblewski’s notes and affidavit indicate that plaintiff’s
attorney stated that the company “should not bother” trying to settle the case if they “could not get
over six figures,” which suggests that plaintiff’s own valuation of her claim was at least $100,000.
Plaintiff’s initial complaint does not specify an amount in controversy meeting the jurisdictional

requirement, and therefore defendants must show that “through service or otherwise” they received
an “other paper” from which they ascertained that the case had become removable. See 28 U.S.C.
§ 1446(b)(3). As noted above, an “other paper” must be one which is received after the initial
pleading and must be a written document; oral settlement demands are insufficient to trigger the
30-day removal clock. The two specified settlement demands, and plaintiff’s medical records,
predate the initial complaint, which was filed on November 2, 2017, and plaintiff’s counsel’s
statements, as recounted by Zblewski, cannot be counted as an “other paper” triggering removal,
because they were not received by the defendants in writing. Defendants have had the opportunity
to submit evidence in support of removal, and there no record evidence before the court that can
be construed as an “other paper.” Because “the burden of proving jurisdiction lies with the
removing defendant[s],” Williams, 269 F.3d at 1319, and that burden has not been met, plaintiff’s
motion to remand is due to be granted.
V. CONCLUSION
For the reasons set forth above, it is
ORDERED that defendants’ motion to substitute an exhibit to the notice of removal is
GRANTED. It is further
ORDERED that plaintiff’s motion to remand is GRANTED, and this case is hereby
REMANDED to the Circuit Court of Montgomery County, Alabama. Plaintiff’s request for leave
to amend its complaint is therefore MOOT.
Done, on this the 7th day of February, 2019.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge