McCullough v. Plum Creek Timberlands, L.P.

Filing 18

MEMORANDUM OPINION AND ORDER denying 6 MOTION to Remand to State Court, as further set out in order. Signed by Honorable Myron H. Thompson on 1/4/10. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION NORMAN McCULLOUGH, Plaintiff, v. PLUM CREEK TIMBERLANDS, L.P. Defendant. ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 3:09cv1038-MHT (WO)

OPINION AND ORDER Plaintiff Norman McCullough filed this lawsuit in an Alabama state court, with charging breach a defendant of Plum Creek

Timberlands, interference

L.P.

contract,

tortious and

with

contract,

fraud

misrepresentation, and conversion. Plum Creek removed this lawsuit to this federal court on the basis of diversity-of-citizenship jurisdiction. 28 U.S.C. §§ 1441 (removal) & 1332 (diversity of citizenship). This

lawsuit is now before the court on McCullough's motion for remand. McCullough contends that Plum Creek did not

file a timely notice of removal, did not allege complete

diversity

of

citizenship

in

its

initial

notice

of

removal, and failed to carry its burden of establishing the requisite amount in controversy.1 For the reasons

that follow, McCullough's remand motion will be denied. I. BACKGROUND The allegations in McCullough's complaint may be summarized successor as to follows: a Plum Creek is the of current which As

timber-sales

agreement,

McCullough is an intended third-party beneficiary. part of an amendment to that agreement,

McCullough

obtained the contractual right to lease certain portions

1. McCullough also argues that remand is appropriate because "[t]he motion to Remove to Federal Court did not contain the necessary documentation at its filing in that the necessary corporate disclosure ... was filed after the Notice of Removal," and "due to the fact that [the lawsuit] involves a dispute over access to real property located in the State of Alabama and ... [Plum Creek] has substantial contracts (sic) with the State of Alabama and may also be a duly registered company in the State of Alabama." Mot. at 1 (Doc. No. 6). But McCullough cites no legal authority in support of either assertion, and the court is unaware of any such authority. Thus, the court rejects both of these arguments. 2

of land for hunting purposes at a cost of one dollar per acre. McCullough's right to lease the land was to

survive for the duration of the timber-sales agreement. Plum Creek has now demanded that McCullough accept a new lease rate, at seven times the previously agreed-upon amount. Plum Creek has intentionally and erroneously to McCullough that another party to the

represented

timber-sales agreement, W.C. Bradley Company, supports Plum Creek's proposed rate increase. McCullough contends that the above-described actions by Plum Creek amount to breach of contract, tortious interference with a contract, fraud and

misrepresentation, and conversion. latter three claims are the

He states that the of Plum Creek's

result

"intentional or gross and reckless" behavior, and thus he seeks punitive damages on each of those claims. Compl. at 2-3 (Doc. No. 1-5). Am.

3

On November 6, 2009, McCullough's counsel faxed a settlement offer to Plum Creek's attorney. stated, in relevant part, "In an effort to resolve this issue we will make the following good faith offer of settlement, this offer in no way diminishes our belief in the validity of our contract: 1. Payment client. of $ 110,000.00 to our The offer

2. Three years of hunting rights on the land in question for $ 1.00 per acre. 3. Hunting privileges on the land in question from 2013-2036 at 50 % of the rate charged to other hunters by Plum Creek for lands in Russell County, AL. 4. The right to build a small hunting cabin on the properties in question to be used exclusively by my client and/or his guests. (This cabin would be built at the expense of our client.) This offer is valid until November 10, 2009." Notice, Def.'s Ex. B (Doc. No. 1-3). On November 10, Plum Creek filed a in this federal court. notice of removal

McCullough's settlement offer was

4

attached to the notice as defendant's exhibit B. notice, Plum Creek identified itself as "a

In the Delaware

limited partnership with its principal place of business in the State of Washington." Notice at 3 (Doc. No. 1).

Plum Creek further explained that the partnership, "consists of a single general partner, Plum Creek Timber I, LLC, and a single limited partner, Plum Creek Timber Company, Inc. Plum Creek Timber I, LLC, is a Delaware Limited Liability Company with its principal place of business in the State of Washington. Plum Creek Timber Company, Inc. is a Delaware Corporation with its principal place of business in the State of Washington." Id. The court, acting sua sponte, subsequently issued an order notifying Plum Creek that, "The allegations of the notice of removal are insufficient to invoke this court's removal jurisdiction under 28 U.S.C. §§ 1332 (diversity of citizenship) [&] 1441 (removal)." 10). Order at 1 (Doc. No.

The court instructed Plum Creek that a notice of

removal based on diversity-of-citizenship jurisdiction must allege the citizenship of each member of a limited 5

liability company.

The court provided Plum Creek until

December 18 to amend the notice. Plum Creek filed an amended notice of removal on December 7. The amended notice stated that,

"Plum Creek Timber I, LLC is a single member LLC. The sole member of Plum Creek Timber I, LLC is Plum Creek Timber Company, Inc. Plum Creek Timber Company, Inc. is a Delaware Corporation with its principal place of business in the State of Washington." Am. Notice at 3 (Doc. No. 11). McCullough and Plum Creek have since filed briefs respectively supporting, and responding to, the motion for remand. II. DISCUSSION Unless otherwise prohibited by Congress, "any civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place 6 where the action is

pending."

28 U.S.C. § 1441(a).

A defendant removing a

civil action to federal court must file notice of removal within 30 days of its receipt of the initial pleading in the case, or within 30 days of its receipt "of an amended pleading, motion, order or other paper from which it may be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(emphasis added).

Upon removal, with one or two exceptions not applicable here, "the party invoking the court's jurisdiction bears the burden of proving, by a preponderance of the

evidence, ... the existence of federal jurisdiction." McCormick v. Aderholt, 293 F.3d 1254, 1258 (11th Cir. 2002). McCullough contends that this lawsuit is due to be remanded to state court because Plum Creek failed to comply with the 30-day time-limit dictated by 28 U.S.C. § 1446(b). McCullough further contends that Plum Creek

neglected to allege complete diversity of citizenship in its notice of removal and failed to carry its burden of

7

establishing the requisite amount in controversy. court addresses each of these contentions in turn. A. Compliance with 28 U.S.C. § 1446(b)

The

Plum Creek's notice of removal concedes that this lawsuit was not removable on the basis of McCullough's complaint. However, Plum Creek maintains that its

"Notice of Removal was timely under 28 U.S.C. § 1446(b), as it was filed within thirty days of Defendant's receipt of `other paper' (Plaintiff's Settlement Offer) from which Plum Creek was able to first ascertain that this case was removable." Notice at 2 (Doc. No. 1); Am. McCullough does not dispute

Notice at 2 (Doc. No. 11).

that the notice of removal was filed within 30 days of Plum Creek's receipt of his settlement offer; rather he claims that the offer does not constitute "other paper" for purposes of 42 U.S.C. § 1446(b). In Lowery v. Alabama Power Co., 483 F.3d 1184, 1212 n.62 (11th Cir. 2007), the Eleventh Circuit Court of Appeals explained that, "What constitutes `other paper,' 8

... has been developed judicially.

Courts have not

articulated a single test for identifying `other paper,' but numerous types of documents the have been held to

qualify."

According

to

court,

these

documents

"include ... settlement offers."

Id. (citing Addo v.

Globe Life & Accident Ins. Co., 230 F.3d 759, 761-62 (5th Cir. 2000)). Following Lowery, courts in this circuit

have held that settlement offers can constitute `other paper' for the purposes of § 1446(b). See, e.g., Jackson

v. Select Portfolio Servicing, Inc., ____ F.Supp.2d ____, ____, 2009 WL 2385084 at *1 (S.D. Ala. July 31, 2009) (Steele, J.) ("A settlement offer can of course

constitute an `other paper' within the meaning of 28 U.S.C. § 1446(b)."); Bankhead v. Am. Suzuki Motor Corp., 529 F.Supp.2d 1329, (same). The court declines McCullough's invitation to reexamine this issue on the basis of an alleged "split in the courts as to what specific items constitute `other 1333 (M.D. Ala. 2008) (Thompson, J.)

9

paper.'" court

Pl.'s Br. at 2 (Doc. No. 12). once again, that settlement

Instead, the offers may

holds,

constitute "other paper" for the purposes of § 1446(b) and therefore concludes that Plum Creek's notice of

removal was timely filed. B. Diversity-of-Citizenship Jurisdiction Plum Creek contends that this case falls within the court's diversity-of-citizenship jurisdiction pursuant to 28 U.S.C. § 1332. In other words, Plum Creek claims that

removal is proper because the parties are "citizens of different States" and "the matter in controversy exceeds the sum or value of $ 75,000." 1. 28 U.S.C. § 1332.

Alleging Diverse Citizenship

Section 1332 requires "complete diversity," which means that no party on one side of the suit may be a citizen of the same State as any party on the other side of the suit. 267 (1806). Strawbridge v. Curtiss, 7 U.S. (3 Cranch) To invoke removal jurisdiction based on

10

diversity, distinctly citizenship.

a and

defendant's

notice

of

removal each

must

affirmatively

allege

party's

McGovern v. American Airlines, Inc., 511 "[F]or the purposes of

F.2d 653, 654 (5th Cir. 1975).2

diversity of citizenship, a limited partnership [such as Plum Creek] is a citizen of each state in which any of its partners, limited or general, are citizens." Rolling

Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1021 (11th Cir. 2004) (citing Carden v. Arkoma Assoc., 494 U.S. 185, 195-96 (1990)). "[L]ike a limited

partnership, a limited liability company is a citizen of any state of which a member of the company is a citizen." Id. at 1022. In its initial notice of removal, Plum Creek failed to allege the citizenship of the members of Plum Creek Timber I, LLC, the single general partner of Plum Creek.

2. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 11

Following an order by this court, Plum Creek remedied that deficiency, filing an amended notice of removal in which it alleged the following: "Plum Creek Timber I, LLC is a single member LLC. The sole member of Plum Creek Plum

Timber I, LLC is Plum Creek Timber Company, Inc.

Creek Timber Company Inc. is a Delaware Corporation with its principal place of business in the State of

Washington."

Am. Notice at 3 (Doc. No. 11).

Despite Plum Creek's amended complaint, McCullough maintains that, "The requirement of establishing

diversity in each member of the Defendant's LLC has failed since this was not set out in the initial notice of removal." Pl.'s argument Br. at 4 (Doc. the No. 12). But

McCullough's

ignores

Eleventh

Circuit's

clear instruction that, "If a party fails to specifically allege citizenship in their notice of removal, the

district court should allow that party `to cure the omission,' as authorized by [28 U.S.C.] § 1653."

Corporate Mgmt. Advisors, Inc. V. Artjen Complexus, Inc.,

12

561 F.3d 1294, 1297 (11th Cir. 2009).

Because the

omission has been properly cured, McCullough's argument fails. 2. Establishing the Amount in Controversy

"Where a plaintiff fails to specify the total amount of damages demanded, ... a defendant seeking removal based on diversity of the jurisdiction evidence the $ must prove by a in

preponderance controversy

that 75,000

the

amount

exceeds

jurisdictional

requirement." Leonard v. Enterprise Rent-a-Car, 279 F.3d 967, 972 (11th Cir. 2002). "[T]he removal-remand scheme

set forth in 28 U.S.C. §§ 1446(b) and 1447(c) requires that a court review the propriety of removal on the basis of the removing documents." 483 F.3d 1184, 1211 (11th Lowery v. Ala. Power Co., Cir. 2007). "If the

jurisdictional amount is either stated clearly on the face of the documents before the court, or readily If

deducible from them, then the court has jurisdiction. not, the court must remand." 13 Id.

"Under this approach,

jurisdiction

is

either

evident

from Id.

the

removing

documents or remand is appropriate."

McCullough did not specify an amount in controversy in his complaint. of establishing Therefore, Plum Creek bears the burden the amount in controversy by a

preponderance of the evidence.

Plum Creek contends that

it has carried this burden by attaching to its notice of removal McCullough's November 2009 settlement letter

demanding, among other things, payment of $ 110,000.3 In keeping with the recognition that a settlement letter constitutes "other paper" within the meaning of § 1446(b), this court has previously held that "a

settlement letter is admissible evidence of the amount in controversy at the time of removal." Bankhead v. Am.

3. Plum Creek argues that, "There is no dispute that [McCullough's] settlement demand satisfies Plum Creek's burden of establishing that the amount-in-controversy requirement is satisfied." Def.'s Br. at 3 (Doc. No. 14). Although McCullough's brief is hardly a model of clarity, the court finds that the brief raises such a dispute. Indeed, despite its claim to the contrary, Plum Creek apparently recognized this as well, as it dedicated nearly two pages of its brief to the issue. 14

Suzuki Motor Corp., 529 F.Supp.2d 1329, 1333 (M.D. Ala 2008) (Thompson, J.); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994) (In determining the amount in controversy in the removal context, a

"settlement offer, by itself, may not be determinative, [but] it counts for something."); Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002) ("A settlement letter is relevant evidence of the amount in controversy if it appears to reflect a reasonable estimate of the

plaintiff's claim."). McCullough argues that, "In the present case the demand letter was clearly sent in an effort to facilitate a resolution to the case and it is safe to assume that the original demand in no way determines the amount actually in controversy." Pl.'s Br. at 3 (Doc. No. 12).

But the court is at a loss as to how it can consider the letter "an effort to facilitate a resolution to the case" and, at the same time, "assume that ... [it] in no way

15

determines the amount actually in controversy." Tenth Circuit Court of Appeals has explained, "The amount in controversy is not proof of the amount the plaintiff will recover. Rather, it is an estimate of the amount that will be put at issue in the course of the litigation. To this end, documents that demonstrate plaintiff's own estimation of its claim are a proper means of supporting the allegations in the notice of removal."

As the

McPhail v. Deere & Co., 529 F.3d 947, 956 (10th Cir. 2008). McCullough's settlement letter describes its

demand for "[p]ayment of $ 110,000 to our client"--an amount far exceeding $ 75,000--as a "good faith offer of settlement." Notice, Def.'s Ex. B (Doc. No. 1-3). The

letter goes on to request valuable non-cash consideration in addition to the demanded payment. What is more, the

letter states that "this offer in no way diminishes our belief in the validity of our contract," id., suggesting

16

that McCullough viewed his offer as a discount, with an eye towards avoiding the costs of continued litigation.4 In Bankhead, 529 F.Supp.2d at 1335, this court found that $ the plaintiff's was initial settlement to demand for the

150,000.00

alone

sufficient

establish

requisite amount in controversy.

As Plum Creek points

out, the demand letter in Bankhead explicitly stated the plaintiff's expectation that the defendant would disagree with his assessment of the value of his claim.5

4. It is also noteworthy that, as stated above, McCullough's complaint states four separate claims for relief, for three of which he demands punitive as well as compensatory damages. The court assumes that each of these claims and demands was made in good faith. 5. Plum Creek attached as exhibit A to its own brief, the plaintiff's demand letter in Bankhead v. American Suzuki Motor Co., No. 3:07-cv-208 (M.D. Ala. 2009) (therein filed as Def.'s Br., Ex. A (Doc. No. 252)). That letter stated, in pertinent part, "After careful review of my client's injuries, including the property damage portion of this case, my client hereby demands $150,000.00 to settle this matter. Of course, I know you will disagree with my value assessment and, if so, ask you to submit a fruitful counteroffer thereto." Def.'s Br., Ex A (Doc. No. 14-2). 17

McCullough's letter shows no such lack of confidence in his assessment, thus providing stronger evidence of the amount in controversy than the settlement demand in

Bankhead . To be sure, "[s]ettlement offers commonly reflect puffing and posturing, and such a settlement offer is entitled to little weight in measuring the preponderance of the evidence." Jackson v. Select Portfolio Servicing,

Inc., ____ F.Supp.2d ____, ____, 2009 WL 2385084 at *1 (S.D. Ala. July 31, 2009) (Steele, J.). McCullough

asserts that his "letter was no more than posturing of the parties to determine whether further discovery was necessary." Def.'s Br. at 3 (Doc. No. 12). But he does

nothing to support or explain this assertion, and the court views it as little more than an effort to avoid federal jurisdiction. See Bankhead, 529 F.Supp.2d at

1334 (construing a "second settlement demand letter [for less than the jurisdictional amount] as a post-removal waiver of a certain amount of damages in an effort to

18

deprive this court of jurisdiction").

Indeed, the court

agrees with Plum Creek that the demand for "additional, valuable, suggests,] Plaintiff." non-cash a terms demonstrat[es, of the or case at least the

careful

analysis

by

Def.'s Br. at 4 (Doc. No. 14).

Furthermore,

even if some degree of posturing was involved, the court notes again that the settlement offer not only stated a demand for payment substantially exceeding the

jurisdictional amount, but also included a request for additional non-cash consideration. Thus, the gap between the value of the demand and the minimum jurisdictional amount allows room for some puffing and posturing while still providing sufficiently reliable evidence that, by McCullough's own estimation, at least the minimum

jurisdictional amount is in controversy. Based on the foregoing, and as required by Lowery, 483 F.3d at 1211, the court finds that the requisite jurisdictional amount is "readily deducible" from the "face of [the removal] documents before the court." In

19

this

case,

the

most

significant

removal faith

document offer

is of

McCullough's

self-described

"good

settlement" for an amount substantially exceeding the jurisdictional minimum. *** Accordingly, it is the ORDER of the court that

plaintiff Norman McCullough's motion for remand (doc. no. 6) is denied. DONE, this the 4th day of January, 2010. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE