McCall et al v. Dickson

Filing 11

MEMORANDUM OPINION AND ORDER,granting 8 MOTION to Remand filed by Littertory McCall, Dorothea Vega; this case is remanded to the CC of Macon Co., AL; The clerk is directed to take appropriate steps to immediately effect the remand. Signed by Hon. Chief Judge Mark E. Fuller on 2/17/09. (Attachments: # 1 appeals checklist)(cert copy mailed to CC Macon Co., AL)(vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION L IT T E R T O R Y McCALL and DOROTHEA ) VEGA, ) ) P L A IN T IF F S , ) ) v. ) ) A N N E T T E HOLTON DICKSON, et al., ) ) DEFEN DANTS. )

C A S E NO. 3:08cv985-MEF (WO - DO NOT PUBLISH)

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on the Motion to Remand (Doc. # 8) filed on January 2 0 , 2009. For the reasons that follow, it is hereby ORDERED that the motion is GRANTED. F A C T U A L AND PROCEDURAL BACKGROUND It is alleged that on November 14, 2006, Annette Holton Dickson ("Dickson") was o p e ra tin g a vehicle on a public roadway in Macon, County, Alabama. Dickson is alleged to h a v e negligently or wantonly caused or allowed the vehicle she was operating to strike the v e h ic le occupied by Littertory McCall ("McCall") and Dorothea Vega ("Vega"). McCall and V e g a allege that they suffered physical injury and emotional distress as a result of the c o llis io n . On November 12, 2008, McCall and Vega filed suit against Dickson and certain f ic titio u s defendants who are alleged to have been the owners of the vehicle Dickson was o p e ra tin g at the time of the collision in the Circuit Court of Macon County, Alabama. M c C a ll and Vega sought an unspecified sum of punitive and compensatory damages.

A f te r service, Dickson removed the action to this Court invoking its subject matter ju ris d ic tio n pursuant to 28 U.S.C. § 1332(a). In support of this removal, Dickson asserted u p o n information and belief that the Complaint seeks an amount greater than $75,000, e x c lu s iv e of interest and costs. Dickson notes that the subject collision was a bad one and th a t occupants of the vehicle Dickson was operating did not survive the accident. She also o u tlin e s the types of damages that Vega and McCall seek in the Complaint. Additionally, D ic k s o n seeks leave of Court to conduct discovery into the amount in controversy. On January 20, 2009, McCall and Vega filed a motion to remand in which they stated th a t their claims are not in excess of $75,000, exclusive of interest and costs. For this reason, t h e y submit that this Court lacks subject matter jurisdiction over this action. McCall and V e g a have announced an intention to file an amended Complaint after remand specifically s e e k in g less that $75,000. In response to the motion to remand, Dickson states that she does n o t object to remand if McCall and Vega are willing to limit their damages and the total a m o u n t they will ever expect to receive will be less than $75,000. Based on the

re p re se n ta tio n of McCall and Vega, Dickson has indicated that she has no objection to the re m a n d of this case. D IS C U S S IO N F e d e ra l courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. o f Am., 511 U.S. 375 (1994); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994); W y m b s v. Republican State Executive Comm., 719 F.2d 1072, 1076 (11th Cir. 1983). As s u c h , federal courts only have the power to hear cases that they have been authorized to hear 2

b y the Constitution or the Congress of the United States. Kokkonen, 511 U.S. at 377. Among the cases over which a federal district court may exercise subject matter ju ris d ic tio n are civil actions in which only state law claims are alleged if the civil action a ris e s under the federal court's diversity jurisdiction. See 28 U.S.C. § 1332(a). The diversity s ta tu te confers jurisdiction on the federal courts in civil actions "between citizens of different s ta te s ," in which the jurisdictional amount, currently in excess of $75,000, is met. Id. When a case is originally filed in state court, a party may remove it if the case o rig in a lly could have been brought in federal court. See 28 U.S.C. § 1441(a). Accord, L o w e r y v. Alabama Power Co., 483 F.3d 1184, 1207 (11th Cir. 2007), cert. denied, 128 S. C t. 2877 (2008) ("the party seeking a federal venue must establish the venue's jurisdictional re q u ire m e n ts " and therefore removing defendants bear that burden in the context of a motion to remand). However, the non-moving party may move for remand, which will be granted if "it appears that the district court lacks subject matter jurisdiction." See 28 U.S.C. § 1 4 4 7 (c ). Because removal jurisdiction raises significant federalism concerns, "removal s ta tu te s are construed narrowly; where plaintiff and defendant clash about jurisdiction, u n c e rta in tie s are resolved in favor of remand." Burns, 31 F.3d at 1095. Recently the Eleventh Circuit Court of Appeals provided significant clarification of " e x is t in g principles of law governing removal generally - who bears the burden of e sta b lis h in g that removal is proper, how that party can satisfy its burden, and how a district c o u rt must proceed in evaluating its jurisdiction after removal." Lowery, 483 F.3d at 1187. A lth o u g h Lowery arose in the context of a removal pursuant to the Class Action Fairness Act 3

o f 2005 ("CAFA"), it is quite plain from the text of Lowery that the holdings of the case are n o t limited solely to cases removed under CAFA. In Lowery, the Eleventh Circuit Court of A p p e a ls reiterated that in cases, such as this one, where the complaint does not specify the a m o u n t of damages sought, "the removing party bears burden of establishing the ju ris d ic tio n a l amount by a preponderance of the evidence." 483 F.3d at 1208-09, 1210. The C o u rt cautioned, however, that "[i]f the jurisdictional amount is either stated clearly on the f a ce of the documents before the court, or readily deducible from them, then the court has ju ris d ic tio n . If not, the court must remand. Under this approach, jurisdiction is either evident f ro m the removing documents or remand is appropriate." Indeed, "in assessing the propriety o f removal, the court considers the documents received by the defendant from the plaintiff b e it the initial complaint or a later received paper- and determines whether that document a n d the notice of removal unambiguously establish federal jurisdiction." Id. at 1213. The d e f en d a n t and the court may not speculate about the amount in controversy, nor should "the e x is te n c e of jurisdiction" be "divined by looking to the stars." Id. at 1215. Importantly, the L o w e ry court stated that it is highly questionable whether a defendant could ever file a notice of removal on d iv e rs ity grounds in a case such as the one before us - where the defendant, the p a rty with the burden of proof, has only bare pleadings containing unspecified d a m a g e s on which to base its notice- without seriously testing the limits of c o m p l ia n c e with Rule 11. Unlike the typical plaintiff who originally brings a d iv e rs ity action in federal court, the removing defendant generally will have n o direct knowledge of the value of plaintiff's claims. Id. at 1215. "When a plaintiff seeks unliquidated damages and does not make a specific d e m a n d , therefore, the factual information establishing the jurisdictional amount must come 4

f ro m the plaintiff." Id. at1215. Indeed, the Lowery court specifically rejected a removing d ef en d an t's attempt to satisfy its burden of proving amount in controversy by reliance on jury v e rd ic ts in other supposedly similar cases. Id. at 1189, 1220-21.1 In the Lowery case, the E le v e n th Circuit also stated that "[t]he defendants' request for discovery is tantamount to an a d m is s io n that the defendants do not have a factual basis for believing that jurisdiction exists. T h e natural consequence of such an admission is remand to state court." Id. at 1217-18. It is apparent to this Court that at this juncture Dickson does not have a sufficient f a c tu a l basis for believing that subject matter jurisdiction exists. Accordingly, the case must b e remanded. CONCLUSION F o r the foregoing reasons, it is hereby ORDERED as follows: 1. 2. 3. re m a n d . D O N E this the 17 th day of February, 2009. T h e Motion to Remand (Doc. # 8) is GRANTED. T h is case is REMANDED to the Circuit Court of Macon County, Alabama. T h e Clerk is DIRECTED to take appropriate steps to immediately effect the

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

Lowery was not the first time the Eleventh Circuit Court of Appeals had stated that re lia n c e on damages awards in other cases was insufficient. See, e.g., Federated Mut. Ins. C o . v. McKinnon Motors, LLC., 329 F.3d 805, 809 (11th Cir. 2003) ("mere citation to what h as happened in the past does nothing to overcome the indeterminate and speculative nature o f [the removing defendant's] assertion [that subject matter jurisdiction existed under § 1332] in this case."). 5

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