Adamson v. Smith Kline Beecham Corporation

Filing 9

MEMORANDUM OPINION AND ORDER: that Plaintiff's Motion to Remand 6 is GRANTED, and that this case is REMANDED to the Circuit Court of Randolph County, Alabama, pursuant to § 1447(c). The Clerk of the Court is DIRECTED to take appropriate s teps to effectuate the remand; that on or before January 20, 2012, Defendant shall show cause why it should not be ordered to pay Plaintiff's costs and attorney's fees incurred as a result of the removal, pursuant to 28 U.S.C. § 1447(c). Signed by Chief Judge William Keith Watkins on 12/27/2011. (Attachments: # 1 Civil Appeals Checklist)(jg, ) Certified copy of order sent to Circuit Court of Randolph County

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DEWAYNE ADAMSON,
Plaintiff,
v.
SMITHKLINE BEECHAM
CORPORATION, d/b/a
GLAXOSMITH KLINE (GSK),
Defendant.

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CASE NO. 2:11-CV-898-WKW
[WO]

MEMORANDUM OPINION AND ORDER
This case marks Defendant’s second attempt to establish federal removal
jurisdiction over Plaintiff’s claims against it.

Before the court is Plaintiff’s

Emergency Motion to Remand Previously Remanded Case (Doc. # 6) back to the
Circuit Court of Randolph County, Alabama. Defendant filed a response to the
motion (Doc. # 7) to which Plaintiff replied (Doc. # 8). After careful consideration
of the arguments of counsel and the relevant law, the court finds that Plaintiff’s
motion is due to be granted. Additionally, Defendant will be required to show cause
why it should not be ordered to pay Plaintiff’s costs and attorney’s fees incurred as
a result of this second removal.

I. STANDARD OF REVIEW
“[F]ederal courts have a strict duty to exercise the jurisdiction that is conferred
upon them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716
(1996). However, “[f]ederal courts are courts of limited jurisdiction.” Burns v.
Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994); see also Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 379 (1994). Thus, with respect to cases
removed to this court pursuant to 28 U.S.C. § 1441, the law of the Eleventh Circuit
favors remand where federal jurisdiction is not absolutely clear. “[R]emoval statutes
are construed narrowly; where plaintiff and defendant clash about jurisdiction,
uncertainties are resolved in favor of remand.” Burns, 31 F.3d at 1095.
The removing defendant has the burden of establishing the existence of federal
jurisdiction. Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002). With
respect to diversity jurisdiction, a federal court has original jurisdiction over an action
where there is complete diversity between the parties and the amount in controversy
exceeds $75,000. 28 U.S.C. § 1332(a).
II. BACKGROUND
A.

The December 2010 Case
Defendant’s first attempt at removal occurred eleven months before this

attempt. See Adamson v. SmithKline Beecham Corp., No. 3:10-cv-1066 (M.D. Ala.
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filed Dec. 15, 2010) (hereinafter Adamson I) (Watkins, C.J.). Defendant removed
Adamson I on December 15, 2010, from the Circuit Court of Randolph County,
Alabama. (Doc. # 1, Adamson I.) On December 16, 2010, Defendant filed a motion
to stay the case pending transfer of the action to Multidistrict Litigation (“MDL”),
MDL No. 1871, In re: Avandia Marketing, Sales Practices and Products Liability
Litigation. (Doc. # 5, Adamson I.) Plaintiff filed a motion to remand. (Doc. # 9,
Adamson I.) The court granted the motion to remand because “Plaintiff’s demand . . .
[was] for an amount certain that [was] less than the jurisdictional requirement,” and
Defendant “failed to establish the jurisdictional amount to a legal certainty.” (Doc.
# 14, at 2, Adamson I.) The court found that “Plaintiff ha[d] bound himself to
$65,000, and [was] precluded by his counsel’s affidavit and [the] Order from seeking
or recovering in excess thereof.”

(Doc. # 14, at 3, Adamson I.) The case was

remanded back to the Circuit Court of Randolph County, Alabama.
B.

The October 2011 Case
Defendant has removed this case again on the cusp of the one-year maximum

time for removal. See 28 U.S.C. § 1446(b). In strikingly similar events to its first
attempt, Defendant once again removed this case from the Circuit Court of Randolph
County, Alabama, (Doc. # 1) and then quickly filed a motion to stay the case (Doc.
# 5) pending transfer of the action to MDL No. 1871, In re: Avandia Marketing, Sales
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Practices and Products Liability Litigation. Plaintiff once again filed a motion to
remand (Doc. # 6), which is now before the court, and argues that the jurisdictional
amount in controversy is still not met because Plaintiff is still seeking only $65,000
in damages. (Doc. # 6, at 2.)
Defendant argues that Plaintiff, in his deposition taken on October 10, 2011,
admitted that he is seeking more than $225,000 on all his claims. (Doc. # 7, at 2.)
Defendant points to Plaintiff’s deposition testimony where he states that he is seeking
compensation for the value of six weeks of sick leave and annual leave, (Pl.’s Dep.
13–15 (Doc. # 12, Ex. H)); compensation for his wife taking two weeks off work
without pay, (Pl.’s Dep. 20); compensation for out-of-pocket expenses, (Pl.’s Dep.
21); compensation for loss of life insurance, (Pl.’s Dep. 26–27); restitution for the
amount he paid for Avandia, (Pl.’s Dep. 29); reimbursement of medical expenses,
(Pl.’s Dep. 30–33); compensation for physical and psychological injuries, (Pl.’s Dep.
34–35); and lost wages from March 31, 2009, to the time he would be entitled to
Social Security retirement benefits, (Pl.’s Dep. 36–37). Defendant has calculated the
approximate value for recovery of lost wages at $117,096, the value of medical
expenses at $34,000, compensation for sick and annual leave at $3,444, and
restitution for Plaintiff’s purchase of Avandia at $5,868.

(Doc. # 7, at 3.)

Additionally, Defendant claims that Plaintiff is seeking $65,000 as compensation only
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for his physical and psychological injuries. (Doc. # 7, at 3–5.) This total is $225,408
and does not include compensation for Plaintiff’s wife taking unpaid leave and for
loss of life insurance.
In his motion to remand, Plaintiff reaffirms that “[t]he amount in controversy
. . . is $65,000. That is what was plead by [] Plaintiff.” (Doc. # 6, at 5.) He further
makes clear that he intentionally “limited his claim to $65,000.” (Doc. # 6, at 5.)
Plaintiff reiterated in his reply that while he may be entitled to more damages, he is
seeking only $65,000 on all claims. (Doc. # 8, at 3–4.)
III. DISCUSSION
A.

Removal
Defendant removed this case under the second paragraph of § 1446(b), which

allows a defendant to remove a case that was initially not removable. If, as here, the
case was “not removable” from the initial pleading, a defendant may later file, under
paragraph two of § 1446(b), a notice of removal “after receipt by the defendant . . .
of a copy 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 . . . .” §
1446(b).
Here, Defendant contends that Plaintiff’s deposition is the “other paper”
received by Defendant by which it “first ascertain[ed]” that this case was removable.
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The sole issue is whether Defendant could have “first ascertain[ed]” from Plaintiff’s
deposition testimony that the damages exceeded $75,000, so as to satisfy § 1332(a)’s
amount in controversy requirement.
Where as here the complaint contains a limitation establishing that the amount
in controversy falls below the jurisdictional minimum, the removing party “must
prove to a legal certainty” that the plaintiff’s claims “must exceed” the jurisdictional
amount. Burns, 31 F.3d at 1095. “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.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294
(1938). A plaintiff’s claim for damages, “when it is specific and in a pleading signed
by a lawyer, deserves deference and a presumption of truth.” Burns, 31 F.3d at 1095.
Hence, the removing defendant’s burden is a “heavy one,” but not an
impossible one. Id. For instance, under the legal certainty test, the removing
defendant “could remain in federal court if he showed that, if plaintiff prevails on
liability, an award below the jurisdictional amount would be outside the range of
permissible awards because the case is clearly worth more than [the jurisdictional
amount].” Id. at 1096.

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Defendant argues that Plaintiff’s deposition testimony “clearly show[s] that
Plaintiff has abandoned any intention to limit himself to $65,000 in damages.” (Doc.
# 7, at 3.) According to Defendant, Plaintiff’s deposition testimony indicates that the
limitation of $65,000 only applies to Plaintiff’s claims for physical and psychological
injuries and that Plaintiff is seeking more than $225,000 in total damages on all his
claims. After testifying to his other claims for damages, counsel for Defendant asked
Plaintiff, “What amount are you claiming for the pain and suffering?” (Pl.’s Dep. 35.)
Plaintiff responded, “That’s the whole deal, $65,000 today.” (Pl.’s Dep. 35.)
Plaintiff has repeatedly asserted that his $65,000 damages limitation applies to
all claims, not simply to his claims for physical and psychological injuries. Plaintiff
asserts that his deposition testimony of “That’s the whole deal” applies to all his
claims, not just to damages for physical and psychological injuries. (Doc. # 8, at 3.)
Plaintiff’s limitation on damages filed in the state court was “subject to the
requirements of Alabama Rule of Civil Procedure 11.” Lowery v. Ala. Power Co.,
483 F.3d 1184, 1220 (11th Cir. 2007). Similarly, counsel’s representations in his
pleadings filed in this court in support of the motion to remand are subject to the
strictures of Rule 11(b) of the Federal Rules of Civil Procedure. See Federated Mut.
Ins. Co. v. McKinnon Motors, LLC., 329 F.3d 805, 808 & n.6 (11th Cir. 2003)
(reciting that plaintiff’s attorneys were officers of the court and “subject to sanctions
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under Federal Rule of Civil Procedure 11 for making a representation to the court for
an improper purpose”). Counsel for Plaintiff expressly represents that his client
“would state to the jury that his claim is for $65,000.00, ‘total,’” and that his client
“only asks for a total of everything at $65,000.” (Doc. # 8, at 1, 3.) The court finds
that counsel’s representations are consistent with the complaint’s provisions and that
there is nothing in the record indicating that counsel’s representations are “presented
for any improper purpose” or otherwise are made in bad faith. Fed. R. Civ. P. 11(b).
Defendant may be correct that Plaintiff, by his testimony, would be entitled to
more than $65,000. Plaintiff does not deny this. However, from the filing of his
complaint, Plaintiff has agreed to limit the amount of damages that he will claim.
That limitation has been and still is $65,000. Plaintiff’s testimony does not contradict
that he is seeking $65,000 in damages total.1 A plaintiff may choose to sue for less
than the jurisdictional amount if he or she does not wish to be in federal court, and
Plaintiff has done so in this case. See St. Paul Mercury Indem. Co., 303 U.S. at 294.
Defendant cannot meet its heavy burden of showing to a legal certainty that Plaintiff’s
1

Defendant relies on Messina v. Chanel, Inc., No. 10-24518-CI, 2011 WL 2610521
(S.D. Fla. July 1, 2011), as authority. In that case, the district court found the defendant had
shown to a legal certainty that the amount in controversy was more than $75,000 where the
plaintiff had “admitted that she [was] seeking lost wages ‘easily in the six figures,’” and the
defendant had calculated back pay in the six figure range. Id. at *1. Here, Plaintiff has not
expressly admitted that he is seeking lost wages above the amount in controversy and has
continued to maintain that he is seeking $65,000 in damages and would accept that amount as a
settlement. (Doc. # 6, at 5.)
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claims “must exceed” the jurisdictional limit where Plaintiff has continuously
maintained his $65,000 limitation on damages. See Burns, 31 F.3d at 1095.
B.

Costs and Attorney’s Fees
Under 28 U.S.C. § 1447(c), “[a]n order remanding the case [to state court] may

require payment of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal.”

The Supreme Court in Martin v. Franklin

Capital Corp., 546 U.S. 132 (2005), explained:
[T]he standard for awarding fees should turn on the reasonableness of
the removal. Absent unusual circumstances, courts may award
attorney’s fees under § 1447(c) only where the removing party lacked
an objectively reasonable basis for seeking removal. Conversely, when
an objectively reasonable basis exists, fees should be denied. In
applying this rule, district courts retain discretion to consider whether
unusual circumstances warrant a departure from the rule in a given case.
For instance, a plaintiff’s delay in seeking remand or failure to disclose
facts necessary to determine jurisdiction may affect the decision to
award attorney’s fees. When a court exercises its discretion in this
manner, however, its reasons for departing from the general rule should
be “faithful to the purposes” of awarding fees under § 1447(c).
Id. at 141 (internal citations omitted).
Defendant will be ordered to show cause why Plaintiff should not be awarded
costs and attorney’s fees incurred in the removal, pursuant to § 1447(c).

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IV. CONCLUSION
Accordingly it is ORDERED that Plaintiff’s Motion to Remand (Doc. # 6) is
GRANTED, and that this case is REMANDED to the Circuit Court of Randolph
County, Alabama, pursuant to § 1447(c). The Clerk of the Court is DIRECTED to
take appropriate steps to effectuate the remand.
It is further ORDERED that on or before January 20, 2012, Defendant shall
show cause why it should not be ordered to pay Plaintiff’s costs and attorney’s fees
incurred as a result of the removal, pursuant to 28 U.S.C. § 1447(c).
DONE this 27th day of December, 2011.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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