Thomas v. Countrywide Home Loans, Inc.

Filing 12

MEMORANDUM OPINION AND ORDER directing that Ms. Thomas's 7 motion to remand is GRANTED conditionally, provided that on or before February 28, 2012, she files a legally sufficient affidavit clarifying what the amount in controversy was on her individual claims at the time of removal. Signed by Chief Judge William Keith Watkins on 2/17/12. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
CELESTINE THOMAS, on behalf
of herself and all other similarly
Alabama residents,
Plaintiff,
v.
COUNTRYWIDE HOME LOANS,
Defendant.

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CASE NO. 3:11-CV-399-WKW
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiff Celestine Thomas originally filed this lawsuit in the Circuit Court of
Macon County, Alabama, on behalf of an Alabama class of similarly situated
individuals. Defendant Countrywide Home Loans removed it to this court under the
jurisdictional provisions of the Class Action Fairness Act of 2005 (“CAFA”), 28
U.S.C. § 1711 et seq., and 28 U.S.C. § 1332(d)(2). Before the court is Ms. Thomas’s
motion to remand for lack of subject matter jurisdiction, filed pursuant to 28 U.S.C.
§§ 1332(a) and 1447(c). (Doc. # 7.) Ms. Thomas contends that this action is due to
be remanded because the amount in controversy is insufficient to confer federal
jurisdiction. Countrywide opposes the motion. After careful consideration of the
fully briefed motion to remand, the court finds that it is due to be conditionally
granted, as explained in this opinion.

I. STANDARD OF REVIEW
Federal courts have a strict duty to exercise the jurisdiction conferred on them
by Congress. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). At the
same time, “[f]ederal courts are courts of limited jurisdiction.” Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Against that legal backdrop, in actions
removed from state court to federal court, federal courts strictly construe removal
statutes, resolve all doubts in favor of remand, and place the burden of proving
jurisdiction on the removing defendant. Miedema v. Maytag Corp., 450 F.3d 1322,
1328-30 (11th Cir. 2006). These principles were well established long before the
enactment of CAFA, and the Eleventh Circuit has made clear that, notwithstanding
CAFA’s expansion of diversity jurisdiction over class actions, these principles remain
undisturbed. Id.; see also Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th
Cir. 2010) (“‘CAFA does not change the traditional rule that the party seeking to
remove the case to federal court bears the burden of establishing federal jurisdiction.’”
(quoting Evans v. Walter Indus., Inc., 449 F.3d 1159, 1164 (11th Cir. 2006)).
Additionally, because this action was removed within thirty days of
Countrywide being served with a summons and copy of the complaint, see 28 U.S.C.
§ 1446(b), the standards enunciated in Pretka govern.1 In Pretka, the Eleventh Circuit
1

Section 1441(b) recently was amended and became effective on January 6, 2012. See
Federal Courts Jurisdiction & Venue Clarification Act of 2011, Pub. L. No. 112–63, 125 Stat.
2

held that, as to removals based on the first paragraph of § 1446(b), no limitations exist
as to the evidence a federal court may consider when the removal is timely. See 608
F.3d at 768 (rejecting dicta in Lowery v. Ala. Power Co., 483 F.3d 1184 (11th Cir.
2007), that a removal under the first paragraph of § 1446(b) must be based on a
document received from the plaintiff). Hence, under paragraph one of § 1446(b), “the
evidence the defendant may use to establish the jurisdictional facts is not limited to
that which it received from the plaintiff or the court.” Id.
II. BACKGROUND
In her class action complaint, Ms. Thomas challenges Countrywide’s alleged
unlawful business practices of “closing residential mortgage transactions” in Alabama
and “target[ing] Alabama residents for predatory, ‘subprime’ equity loans.” (Compl.
¶ 3.) She alleges that Countrywide unlawfully induced Alabama borrowers to enter
into residential loans with high and adjustable interest rates, three-year prepayment
penalty provisions, and discount fees that yield no corresponding interest rate
reduction. Other predatory lending practices challenged by Ms. Thomas include “bait
and switch” tactics, “flipping” loans (i.e., persuading borrowers to refinance existing
loans on disadvantageous terms), oppressive “marketing techniques to prey upon low
income Alabama homeowners,” and false representations that Countrywide’s
758. Because this action was commenced prior to the Act’s effective date, the Act does not
apply to this action. See id.
3

mortgage loans are “sound financial transactions that will save borrowers money.”
(Compl. ¶¶ 37, 39, 43, 44.)
Ms. Thomas alleges that in October 2005, she became a victim of
Countrywide’s deceptive practices when she refinanced her residential property
mortgage loan through Countrywide. (Compl. ¶ 20.) She contends that, as part of the
refinancing, Countrywide encouraged her to consolidate her unsecured debt into debt
secured by the residential property without disclosing the risks of debt consolidation.
(Compl. ¶ 26.) Countrywide allegedly charged her “junk fees” to “bloat the loan,”
including “false points, closing costs, origination fees, appraisal fees, credit report
fees, flood check fees, tax service fees, service charges and other fees,” did not
properly disclose certain fees, and misrepresented the amount of the fees. (Compl.
¶ 27.) As further alleged, Countrywide provided financial advice to earn Ms.
Thomas’s trust only in order to “induce [her] [to] take out the loan at a higher cost,”
all the while knowing that she “ran a risk of having insufficient cash flow to cover all
the dedicated expenses.” (Compl. ¶¶ 30–31.)
Ms. Thomas seeks relief for herself and “all other similarly situated Alabama
residents” for Countrywide’s “pattern and practice of wrongful and illegal conduct.”
(Compl. ¶ 33.) The proposed class is defined as including all individuals “(i) who
presently own, or during the Class Period owned property (including mobile homes)

4

in Alabama, and (ii) entered into a mortgage loan transaction relating to such Alabama
property with [Countrywide] . . . at any time between January 1, 2005, and the
present.” (Compl. ¶ 48.)
Ms. Thomas brings state law claims for fraudulent misrepresentation, fraudulent
suppression, breach of contract, negligence, wantonness, and conspiracy. She requests
restitution, disgorgement, declaratory relief, injunctive relief, compensatory damages,
punitive damages, prejudgment interest, costs, and attorney’s fees. The Complaint
also includes a stipulation that “the amount in controversy is less than $5,000,000.00
(five million dollars).” (Compl. ¶ 12.)
Although this action began in the Circuit Court of Macon County, Countrywide
removed it to the United States District Court for the Middle District of Alabama
within thirty days of being served with a summons and copy of the complaint. See §
1332(d)(2) (governing class action removals); § 1446(b) (governing removal
procedures). In its Notice of Removal, Countrywide sets forth two grounds for federal
subject matter jurisdiction. First, it contends that jurisdiction over this CAFA action
is proper because the minimal diversity requirements are satisfied, there are more than
100 plaintiffs, and the monetary claims exceed $5 million in the aggregate. (Not. of
Removal ¶ 8); see § 1332(d)(2), (5). Countrywide argues that it is clear from the
allegations in the Complaint, as well as from the evidence attached to the Notice of

5

Removal, that the amount in controversy exceeds $5 million as required by
§ 1332(d)(2).
Second, assuming the putative class action does not meet CAFA’s jurisdictional
requirements, Countrywide asserts that Ms. Thomas’s individual action independently
satisfies § 1332(a)’s requirements for diversity jurisdiction. That being the case,
Countrywide contends that § 1367 permits this court to exercise supplemental
jurisdiction over the prospective members of Ms. Thomas’s class, even if their
individual claims fail to meet the amount in controversy threshold. As to the $75,000
amount in controversy, Countrywide relies on the declaration of John Truong.2 He
says that Ms. Thomas was charged $4,951.75 as “total settlement charges” for her
loan. (Truong Decl.) This total includes numerous fees, including charges for
discount points, processing, credit report, appraisal, tax service, and flood check.
Because Ms. Thomas calls each of these points and fees into question, and requests
restitution and disgorgement, Countrywide contends that $4,951.75 is the starting
point for the amount in controversy. Add to that Ms. Thomas’s request for punitive
damages, calculated based upon a single digit ratio between punitive and
compensatory damages ($4,951.75 multiplied by 9), and Countrywide contends that
the amount in controversy threshold easily reaches $49,517.50. It then asserts that the
2

Countrywide attaches to its Notice of Removal a declaration from John Truong, a senior
business control specialist at Bank of America, N.A., the predecessor in interest to Countrywide.
6

amount in controversy exceeds $75,000, when damages for mental anguish and
emotional distress and the value of declaratory and injunctive relief are considered.
“As a result, the minimum amount in controversy is well above the $75,000
requirement for diversity jurisdiction and 1332 is satisfied.” (Not. of Removal ¶ 22.)
Ms. Thomas responded by filing a motion to remand to state court. She
challenges Countrywide’s ability to prove the amount in controversy under CAFA
since her Complaint contains a stipulation to an amount in controversy less than $5
million. She further contends that, although the Complaint leaves the amount of
damages unspecified as to her individual claims, she “stipulates that her damages are
no more than $74,999.99, and [that] she will file a supplement to this brief in support
of remand with an affidavit to that effect.”3 (Resp. to Mot. to Remand 6 n.1.) In
addition to the latter stipulation, Ms. Thomas contends that Countrywide’s
calculations are too speculative to satisfy its removal burden. She concedes that the
diversity requirements under CAFA and § 1332(a) are satisfied.

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The affidavit, to date, has not been filed.
7

III. DISCUSSION
The jurisdictional dispute concerns only whether the amount in controversy
meets CAFA’s requirement of more than $5 million or, alternatively, satisfies
§ 1332(a)’s requirement of more than $75,000 as to Ms. Thomas’s individual claims.
These issues bring front and center the sufficiency of Ms. Thomas’s stipulations
limiting recovery to amounts less than CAFA’s and § 1332(a)’s jurisdictional
minimums to defeat removal jurisdiction. Two stipulations are at issue: (1) the
Complaint’s stipulation that the “amount in controversy” is less than $5 million
(Compl. ¶ 12); and (2) Ms. Thomas’s stipulation in her brief in support of her motion
to remand that her individual “damages are no more than $74,999.99.” (Mot. to
Remand Br. 6 n.1.)
A.

Ms. Thomas’s Stipulation as to the Amount in Controversy Under CAFA
CAFA confers federal subject matter jurisdiction over qualifying class actions

where the “matter in controversy exceeds the sum or value of $5,000,000, exclusive
of interest and costs.” § 1332(d)(2); see also Pretka, 608 F.3d at 751. The claims of
the individual class members are aggregated to determine whether the amount in
controversy exceeds $5 million. See § 1332(d)(6).
Here, the Complaint includes a stipulation that “the amount in controversy is
less than $5,000,000.” (Compl. ¶ 12.) The issue is the effect of this stipulation on the

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aggregate amount in controversy for purposes of determining whether removal under
CAFA’s jurisdictional provision was proper.
Countrywide argues that Ms. Thomas’s state law claims command a recovery
exceeding $5 million for the class. It submits evidence that it entered into a minimum
of 5,276 mortgage loan transactions with Alabama residents during the relevant time
period, and that the average amount charged for origination fees, discount points, and
discount fees was $981. Countrywide contends that these figures, when multiplied,
yield an amount in controversy exceeding $5 million, no matter what Ms. Thomas
stipulates. Hence, Countrywide argues that Ms. Thomas’s stipulation “is irrelevant
and should be disregarded.” (Not. of Removal ¶ 28; see also Resp. to Mot. to Remand
7–15.) Ms. Thomas counters that she and the class “are bound by” the Complaint’s
stipulation as to the amount in controversy, and that this stipulation forecloses
removal under CAFA. (Resp. to Mot. to Remand 8.) She further disputes that every
fee “charged to her loan and to the class members was illegitimate or that every class
member was incorrectly or correctly charged fees in an identical manner.” (Mot. to
Remand Br. 12.)
Countrywide has not challenged whether a class representative unilaterally may
bind the recovery of members of a proposed class. It is noteworthy, however, that
such stipulations in CAFA actions have been honored and their utility recognized in

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at least three circuits.4 See, e.g., Rolwing v. Nestle Holdings, Inc., No. 11-3445, 2012
WL 301030, at *2 (8th Cir. 2012) (published) (“[A] binding stipulation limiting
damages sought to an amount not exceeding $5 million can be used to defeat CAFA
jurisdiction.”); Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830
(7th Cir. 2011) (discussing CAFA’s $5 million jurisdictional threshold and
recognizing that “[l]itigants sometimes . . . prevent removal, by forswearing any effort
to collect more than the jurisdictional threshold”); Lowdermilk v. U.S. Bank Nat’l
Ass’n, 479 F.3d 994, 1003 (9th Cir. 2007) (holding that absent evidence of bad faith
by the plaintiff, the court was “obliged to honor” the complaint’s stipulation that the
aggregate value of the class claims did not exceed $5 million); Brill v. Countrywide
Home Loans, Inc., 427 F.3d 446, 449 (7th Cir. 2005) (noting in dicta that “[t]he
complaint did not set a cap on recovery – as it might have done if the plaintiff had
represented that the class would neither seek nor accept more than $5 million in
aggregate”).

4

Whether there are ethical ramifications to such stipulations is not at issue and need not
be examined within the confines of the present motion to remand. In Hall v. ITT Financial
Services, 891 F. Supp. 580 (M.D. Ala. 1994), a pre-CAFA case, the defendants questioned
whether it was proper for a single plaintiff to bind an entire class to a specified recovery. The
court decided that it “need not . . . reach this issue.” Id. at 582. The court explained: “It may be
that a plaintiff cannot make such a restriction. However, such a restriction might be a reason to
deny class certification; in other words, the state court could conclude, after remand, that Hall is
not an adequate class representative. This court should not, however, force a plaintiff to seek
more money than she wants.” Id.
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Additionally, outside the context of CAFA, it is settled in this circuit that a
plaintiff’s binding stipulation limiting damages is effective for determining the
jurisdictional amount in controversy. See Hill v. BellSouth Telecomm., Inc., 364 F.3d
1308, 1314 (11th Cir. 2004) (“[T]he plaintiff is the master of the complaint, free to
avoid federal jurisdiction by pleading” his claims in a manner calculated to achieve
that result.); Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 808
(11th Cir. 2003) (noting that because the plaintiff’s lawyers were “officers of this
court and subject to sanctions under Federal Rule of Civil Procedure 11 for making
a representation to the court for an improper purpose,” it would “give great deference
to” and presume as true the plaintiff’s stipulation limiting damages); Darden v. Ford
Consumer Fin. Co., 200 F.3d 753, 755 (11th Cir. 2000) (observing that the
jurisdictional inquiry was “narrowed because all Plaintiffs stipulate[d] that each
individual class member w[ould] neither request nor accept damages in excess of
$75,000”); Burns, 31 F.3d at 1097–98 (holding that the plaintiff’s allegations in the
complaint capping damages to an amount less than the jurisdictional amount required
remand absent evidence that proved to a legal certainty that the plaintiff had falsely
assessed the case or had pleaded damages “grossly inconsistent with her alleged
damages”); see also Adamson v. SmithKline Beecham Corp., No. 11cv898, 2011 WL
6778814, at *4 (M.D. Ala. Dec. 27, 2011) (“A plaintiff may choose to sue for less

11

than the jurisdictional amount if he or she does not wish to be in federal court.”); First
Guar. Bank & Trust Co. v. Reeves, 86 F. Supp. 2d 1147, 1154–55 (M.D. Fla. 2000)
(“[A] plaintiff may purposefully reduce the amount he demands in a suit to an amount
lower than his actual damages if he desires to remain in a state court.”).
The Supreme Court also has recognized that plaintiffs may limit their claims to
avoid federal subject matter jurisdiction. See Homes Group, Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 831 (2002) (As the “‘master of the complaint,’”
a plaintiff can plead his or her claims so as avoid the jurisdiction of federal court
(quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 398–99 (1987)); St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938) (“If [the plaintiff] does not
desire to try his case in the federal court[,] he may resort to the expedient of suing for
less than the jurisdictional amount, and though he would be justly entitled to more, the
defendant cannot remove.”).
Having surveyed the landscape as to a plaintiff’s stipulation to the amount in
controversy, the court turns to Countrywide’s two challenges to the stipulation. First,
it contends that the stipulation is insufficient to cap recovery below $5 million because
it “fail[s] to address the benefit that the proposed class would receive from the
injunctive relief sought by [Ms. Thomas].” (Resp. to Mot. to Remand 9.) Ms.
Thomas replies that, in her stipulation, she “has accounted for the value of injunctive

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relief” by limiting the “amount in controversy” to less than $5 million, and that the
stipulation includes “the sum total of the value of injunctive relief, equitable relief,
money damages, and any other forms of relief sought, with the exception of interest
and costs.” (Mot. to Remand Reply Br. 6.) Ms. Thomas has the better argument.
The stipulation does not merely cap damages, but rather the “amount in
controversy.” Semantics are important. “[A]mount in controversy” has a defined
meaning in the law and, importantly, encompasses the value of injunctive relief. See
Federated Mut. Ins. Co., 329 F.3d at 807 (“When a plaintiff seeks injunctive . . . relief,
the amount in controversy is the monetary value of the object of the litigation from the
plaintiff’s perspective.” (citation and internal quotation marks omitted) (emphasis
added))). Moreover, Countrywide presents no reason why in this case the phrase
“amount in controversy” should be interpreted differently. Indeed, Ms. Thomas has
confirmed that her choice of words was intentional so as to convey that the $5 million
cap includes the value of the injunctive relief.5

5

Even without the limitation on the amount in controversy, Countrywide does not
attempt to place a value on the injunctive relief or to whom it would accrue. While it argues that
there is an ascertainable future obligation that would be excused by the requested injunction,
Countrywide does not define that future obligation, to whom it would accrue, or give it a
monetary value. Indeed, it appears that any injunctive relief awarded in this case would not
accrue to any member of the prospective class, as by definition they already have borrowed
money from Countrywide and have been subjected to the alleged improper fees and conduct.
The enjoinder of Countrywide’s conduct in the future would appear to benefit only future
borrowers, who are decidedly not members of this prospective class of plaintiffs. Therefore,
injunctive relief appears to add no value to the amount in controversy.
13

Second, Countrywide argued in its Notice of Removal that Ms. Thomas’s
request for attorneys’ fees also must be considered as part of the amount in
controversy. (Not. of Removal ¶¶ 31, 34, 43, 46.) However, in its brief opposing
remand, Countrywide appears to have abandoned that argument and for good reason.
“The general rule is that attorneys’ fees do not count towards the amount in
controversy unless they are allowed for by statute or contract.” Federated Mut. Ins.
Co., 329 F.3d at 808 n.4. No evidence or argument has been presented that Ms.
Thomas’s request for “reasonable attorneys’ fees” is either statutory or contractual.
(Compl., Prayer for Relief, ¶ 8.) Attorneys’ fees, therefore, have not been counted for
purposes of determining CAFA’s amount in controversy.
Ms. Thomas, as the master of her complaint, has sought to de-federalize it and
remove any basis for a federal court’s subject matter jurisdiction. She has expressly
limited the recovery for the prospective class, and her “limitation will not be
cavalierly cast aside.” Land Clearing Co., LLC v. Navistar, Inc., No. 11-645, 2012
WL 206171, at *5 (S.D. Ala. Jan. 24, 2012). Countrywide’s evidence does not
demonstrate either by a preponderance of the evidence or to a legal certainty that
counsel for Ms. Thomas has falsely or incompetently valued this case or that the cap
on the amount in controversy is “grossly inconsistent” with the relief claimed for her
and the proposed class. Burns, 31 F.3d at 1097. On this record, the court finds that

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CAFA’s amount in controversy requirement is not satisfied based upon Ms. Thomas’s
stipulation.6
The court emphasizes that it takes very seriously Ms. Thomas’s stipulation.
The admonition in Burns bears repeating here. “Every lawyer is an officer of the
court. And, in addition to his duty of diligently researching his client’s case, he
always has a duty of candor to the tribunal.” 31 F.3d at 1095. “So, plaintiff’s claim,
when it is specific and in a pleading signed by a lawyer,” as here, “deserves deference
and a presumption of truth.” Id. The court
will not assume – unless given reason to do so – that plaintiff’s counsel
has falsely represented, or simply does not appreciate, the value of his
client’s case. Instead, [the court] will assume that plaintiff’s counsel best
knows the value of his client’s case and that counsel is engaging in no
deception. [The court] will further presume that plaintiff’s counsel
understands that, because federal removal jurisdiction is in part
determined by the amount of damages a plaintiff seeks, the counsel’s
choices and representations about damages have important legal
6

The parties dispute Countrywide’s burden on removal in a CAFA case to prove the $5
million aggregate amount in controversy. Ms. Thomas advocates for application of the legal
certainty test enunciated in Burns. See 31 F.3d at 1095 (Where a plaintiff specifically has
claimed less than § 1332(a)’s jurisdictional amount in state court, a defendant, to establish
removal jurisdiction, must prove to a “legal certainty” that the plaintiff would not recover less
than the jurisdictional minimum if he or she prevailed). On the other hand, relying on dicta in a
First Circuit opinion, Countrywide argues that the legal certainty standard should not apply in a
CAFA case. See Amoche v. Guarantee Trust Life Ins. Co., 556 F.3d 41, 49 n.2 (1st Cir. 2009)
(adopting the “reasonable probability” standard as governing a removing defendant’s burden in a
CAFA case, and noting that “[i]t is far from evident . . . why [in a CAFA case] the defendant
should be put to a higher standard simply because the plaintiffs have pled an amount under $5
million,” but declining to address the issue based upon the plaintiffs’ appeal concession that the
damages demand was indeterminate). This court need not decide whether in this CAFA case the
legal certainty test or the preponderance-of-the-evidence test governs. That is so because
Countrywide fails to satisfy even the preponderance-of-the-evidence test.
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consequences and, therefore, raise significant ethical implications for a
court officer.
Id. Counsel for Ms. Thomas should remain aware that the “duty of candor goes
beyond the moral duty imposed on counsel by ethical codes or good conscience.” Id.
at 1095 n.5. Ms. Thomas’s limitation on the aggregate class recovery in her
Complaint filed in state court is “subject to the requirements of Alabama Rule of Civil
Procedure 11.” Lowery, 483 F.3d at 1220. Similarly, counsel’s representations made
in the briefs filed in support of the motion to remand in this court are subject to the
strictures of Rule 11(b) of the Federal Rules of Civil Procedure. See Federated Mut.
Ins. Co., 329 F.3d at 808 & n.6 (observing that the plaintiff’s attorneys, as officers of
the court, were “subject to sanctions” under Rule 11 “for making a representation to
the court for an improper purpose”). Counsel for Ms. Thomas has reasserted her
reliance on the stipulation before this court. That stipulation is consistent with the
Complaint’s stipulation, and there is nothing in the record indicating that counsel’s
representations are “presented for any improper purpose.”7 Fed. R. Civ. P. 11(b).
Therefore, Ms. Thomas will have the benefit of the CAFA stipulation.

7

Ms. Thomas also asserts that she will be estopped from attempting to recover more than
the amount contemplated in her stipulation. (See Mot. to Remand Br. 8–9 (citing Born v. Clark,
662 So. 2d 669, 671 (Ala. 1995) (“A party is estopped from assuming in a legal proceeding a
position that is inconsistent with one the party has previously asserted.”) and Ex parte
Blankenship, 893 So. 2d 303, 306 (Ala. 2004) (Under Alabama law, “it is a well settled rule that
a party is bound by what it states in its pleadings.” (citation and internal quotation marks
omitted))).)
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B.

Ms. Thomas’s Stipulation as to § 1332(a)’s Amount in Controversy

Alternatively, assuming CAFA’s inapplicability, Countrywide contends that
removal of this class action is appropriate under § 1332(a) because the amount in
controversy as to Ms. Thomas’s individual claims exceeds $75,000, exclusive of
interest and costs.8 Countrywide argues that, because the named plaintiff satisfies the
jurisdictional amount, supplemental jurisdiction can be exercised over any class
members who do not independently satisfy § 1332(a)’s amount in controversy
requirement. See 28 U.S.C. § 1367. In support of its argument, Countrywide relies
upon Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005). In Exxon
Mobil, the Supreme Court held that in a § 1332(a) diversity action,
where the other elements of jurisdiction are present and at least one
named plaintiff in the action satisfies the amount-in-controversy
requirement, § 1367 does authorize supplemental jurisdiction over the
claims of other plaintiffs in the same Article III case or controversy, even
if those claims are for less than the jurisdictional amount specified in the
statute setting forth the requirements for diversity jurisdiction.

8

“Removal jurisdiction exists only when the district court would have had original
jurisdiction over the action.” Darden, 200 F.3d at 755. See § 1441(a). Pursuant to § 1332(a),
federal courts have original jurisdiction over all civil actions between citizens of different states
where the amount in controversy exceeds $75,000, exclusive of interest and costs. See
§ 1332(a). The existence of complete diversity between Ms. Thomas and Countrywide is not
disputed.
17

Id. at 549.9 Under this discretionary supplemental jurisdiction theory, because the
Complaint contains an unspecified demand for damages as to Ms. Thomas’s claims,
the parties agree that Countrywide “must prove by a preponderance of the evidence
that the amount in controversy more likely than not exceeds the . . . jurisdictional
requirement.” Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010)
(citation and internal quotation marks omitted). Countrywide satisfies its burden if
it is “‘facially apparent’ from the pleading itself that the amount in controversy
exceeds the jurisdictional minimum.” Id. (quoting Pretka, 608 F.3d at 754). If the
amount in controversy is not facially apparent from the Complaint, Countrywide “may
introduce [its] own affidavits, declarations, or other documentation . . . .” Pretka, 608
F.3d at 755.
Ms. Thomas contends that Countrywide’s assertion that the amount in
controversy exceeds $75,000 is “based on unrealistic and unsubstantiated
predictions.” (Mot. to Remand Br. 5.) Moreover, in her brief filed in support of the
motion to remand, Ms. Thomas “stipulates that her damages are no more than

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Exxon Mobil was decided approximately four months after CAFA’s enactment. As
noted by the Exxon Mobil Court, CAFA “is not retroactive” and, thus, did not govern its
analysis. See 545 U.S. at 571. The Court noted, however, that “CAFA . . . does not moot the
significance of our interpretation of § 1367, as many proposed exercises of supplemental
jurisdiction, even in the class-action context, might not fall within the CAFA’s ambit. The
CAFA, then, has no impact, one way or the other, on our interpretation of § 1367.” Id.
at 571–72.
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$74,999.99, and that she will file a supplement to this brief in support of remand with
an affidavit to that effect.” (Mot. to Remand Br. 5.)
Concerning Ms. Thomas’s stipulation, the amount in controversy must be
measured as of the time of removal, not by events occurring afterward. See Pretka,
608 F.3d at 751 (“A court’s analysis of the amount-in-controversy requirement
focuses on how much is in controversy at the time of removal, not later.”). Hence,
“events occurring after removal which may reduce the damages recoverable below the
amount in controversy requirement do not oust the district court’s jurisdiction.”
Poore v. Am.-Amicable Life Ins. Co. of Tex., 218 F.3d 1287, 1291 (11th Cir. 2000),
overruled in part on other grounds by Alvarez v. Uniroyal Tire Co., 508 F.3d 639, 641
(11th Cir. 2007). In this circuit, however, a district court may “consider post-removal
evidence” in determining the propriety of removal, if it casts light on the amount in
controversy at the time of removal. Sierminski v. Transouth Fin. Corp., 216 F.3d 945,
949 (11th Cir. 2000) (“‘[T]he jurisdictional facts that support removal must be judged
at the time of the removal, and any post-petition affidavits are allowable only if
relevant to that period of time.’” (internal quotation marks and citation omitted)).
Because it is not facially apparent from the Complaint that the amount in controversy
as to Ms. Thomas’s claims exceeds $75,000, post-removal evidence clarifying the
amount in controversy at the time of removal can be considered. Ms. Thomas has

19

stipulated in a post-removal brief that, while her damages are unspecified in the
Complaint, those “damages are no more than $74,999.99.” (Mot. to Remand Br. 6
n.1.) She indicated that an affidavit would be forthcoming detailing that stipulation;
however, she failed to file that affidavit. The court assumes that the failure was
inadvertent. An affidavit from Ms. Thomas clarifying that at the time of removal, the
amount in controversy did not exceed $75,000 and specifically binding Ms. Thomas
to a recovery less than § 1332(a)’s jurisdictional minimum would on this record
foreclose Countrywide from establishing § 1332(a)’s amount in controversy. See
Federated Mut. Ins. Co., 329 F.3d at 808 (Where the complaint contains a request for
“indeterminate damages,” courts give “great deference” to, and even presume true,
representations that a plaintiff “does not seek and . . . will not accept damages” in
excess of the jurisdictional minimum).10 The motion to remand will be granted on the
condition that Ms. Thomas files the requisite affidavit.

10

Ms. Thomas is stipulating as to her damages in a post-removal affidavit where the
Complaint’s request for damages is unspecified as to her individual claims. Although the
Eleventh Circuit did not go so far as to hold expressly that in this circumstance a post-removal
stipulation must include a stipulation that the plaintiff “will not accept” damages in excess of the
jurisdictional minimum, it emphasized and credited that part of the plaintiff’s stipulation: “In
fact, [the plaintiff] represented that it does not seek and, more importantly, will not accept
damages in excess of $74,000 exclusive of interests and costs.” Federated Mut. Ins. Co., 329
F.3d at 808.
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IV. CONCLUSION
Accordingly, it is ORDERED that Ms. Thomas’s motion to remand (Doc. # 7)
is GRANTED conditionally, provided that on or before February 28, 2012, she files
a legally sufficient affidavit clarifying what the amount in controversy was on her
individual claims at the time of removal.
DONE this 17th day of February, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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