Mitchell v. Cody Express, LLC et al (CONSENT)
OPINION AND ORDER DENYING plf's 4 MOTION to Remand ; further ORDERING that defs shall supplement the record to include all state court process, pleadings, and orders served on them at the time of removal on or before 11/8/2016. Signed by Honorable Judge Susan Russ Walker on 10/25/16. (Attachments: # 1 civil appeals checklist)(djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CODY EXPRESS, LLC, et al.
CASE NO.: 3:16-cv-165-SRW
OPINION AND ORDER
This matter is before the court on plaintiff’s motion to remand (Doc. 4), which is
opposed by defendants Cody Express, LLC and Elmer Dewayne Cope (collectively
“defendants”). 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). (Docs. 9, 10). The motion to remand has been briefed and taken under submission
without oral argument. For the reasons stated herein, the plaintiff’s motion to remand is
due to be DENIED.
Background and facts1
These are the facts only for purposes of the court’s ruling on the pending motion to remand. They are
gleaned from the notice of removal (Doc. 1), motion to remand (Doc. 4) and exhibits thereto, as well as the
brief in opposition to the motion to remand (Doc. 7) and exhibits thereto.
Plaintiff initiated this suit on January 26, 2016 by filing a complaint in the Circuit
Court for Lee County, Alabama. (Doc. 1-1). Plaintiff claims that, as a result of an April
11, 2014 automobile accident with defendant Cope, she suffered injuries resulting in
physical and mental suffering; past, present, and future medical expenses; and lost wages.
(Id.). Plaintiff also seeks punitive damages. (Id.). Plaintiff does not specify in her complaint
the amount of damages she intends to claim and does not otherwise make a demand. (Id.).
When plaintiff filed her complaint, plaintiff also served written discovery requests on both
defendants. (Id.). Defendants answered the complaint on February 12, 2016. (Id.). On
February 17, 2016, defendants served written discovery requests on plaintiff. (Id.). On
February 18, 2016, defendants responded to plaintiff’s requests for admission. (Id.).
On March 4, 2016, the following email exchange took place between plaintiff’s
counsel and defense counsel:
From John Martin (plaintiff’s counsel) to Jay Clark (defense counsel):
[I] am in receipt of your discovery request – that being the
interrogatories, RPD, and RFA.
Could you please have your secretary email me those filing [sic] in
word so I do not have to retype everything?
Also, we will be asking for more than $75,000 so I assume you are
considering a removal to federal court?
If so, it might be easier to respond to discovery at that time.
From Jay Clerk (defense counsel) to John Martin (plaintiff’s
I am considering removal to FC—haven’t decided yet. I assume from
your note that the amount in controversy is nw [sic] in excess of
$75,000. If wrong let me know. If we remove we can reformat the
discovery so I agree on that. Please send medical when you can.
From John Martin (plaintiff’s counsel) to Jay Clark (defense
Yes, its [sic] going to be in excess of $75,000.
If you will send the reformatted discovery, I can be working on it
regardless of forum.
(Doc. 1-2 at p. 2). Defendants filed their notice of removal, which is premised on diversity
jurisdiction, on March 14, 2016. (Doc. 1).
The parties’ positions
In their notice of removal, defendants argue that while the parties are diverse, this
case was not originally removable because it was not clear that the amount in controversy
was in excess of $75,000. According to defendants, the case became removable on March
4, 2016 – the date that plaintiff’s counsel confirmed via email that the amount in
controversy is in excess of $75,000. (Doc. 1 at 2). Defendants attached the email
correspondence to their notice of removal. (Doc. 1-2).
Although plaintiff was on notice that defendants’ basis for removal was their receipt
of the March 4, 2016 email, plaintiff’s motion to remand does not mention the email
correspondence. Plaintiff argues that the case is due to be remanded because of defendants’
failure to remove the case within 30 days after the last defendant was served with the
complaint. (Doc. 5 at 4). Plaintiff also maintains that the case should be remanded because
defendants neglected to attach to their notice of removal the summons to either defendant,
as well as the return of service to either defendant.
Defendants argue in response to plaintiff’s motion to remand that plaintiff’s
counsel’s email constituted an “other paper,” as contemplated by 28 U.S.C. § 1446(b)(3),
and that receipt of this “other paper” triggered the 30-day time period for removal. (Doc. 7
at 3). Defendants further contend that their removal was timely, as it was filed 10 days
after receipt of the email. (Id.).
“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 at 1389).
Timeliness of defendants’ removal
i. “Other paper” removals, generally
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, LP, 2015 WL5813164, *4 (M.D. Ala. Oct. 5, 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 at 1223). See also 28 U.S.C. §
1446(b)(1)(2012).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 at 1223). See also 28 U.S.C. § 1446(b)(3)(2012). “Discovery responses,
for example, can constitute ‘other papers’ from which diversity jurisdiction can be
“The Court in Griffith explained the ‘first paragraph’ and ‘second paragraph’ distinction made throughout
case law analyzing this statute. It explained: The 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 n. 3) (internal quotation marks omitted).
established.” Id.; see 28 U.S.C. § 1446(c)(3)(2012)(“If the case stated by the initial
pleading is not removable solely because the amount in controversy does not exceed the
amount specified in 1332(a), information relating to the amount in controversy in the
record of the State proceeding, or in responses to discovery, shall be treated as an ‘other
paper’ under subsection (b)(3)).” Letters, as well as emails, from counsel constitute “other
papers.” See id.; see also Lee v. Lilly Trucking of Virginia, Inc., 2012 WL 960989, *2
(M.D. Ala. 2012) (letters and emails constitute “other papers”); Movie Gallery US, LLC
v. Smith, 574 F. Supp. 2d 1244 (M.D. Ala. 2008) (emails estimating damages constitute
Plaintiff does not specify in her complaint the amount of damages she seeks, and
defendants base their removal of this action on the receipt of an “other paper” – the March
4, 2016 email. Therefore, under the previous statute, defendants’ removal would have been
characterized as a “second paragraph” removal, and case law analyzing the same is directly
applicable to the instant inquiry.
Standard for “other paper” removals
“There is some confusion within the Eleventh Circuit regarding the standard
applicable to ‘other paper’ analysis.” Moore at *4. This court is persuaded by the Moore
court’s conclusion that the “unambiguously establish” standard articulated in Lowery v.
Ala. Power Co., 483 F.3d 1184, 1214-15 (11th Cir. 2007) is binding on this court and
governs the question in this case. The Moore court based its decision on and is in accord
with Allen v. Thomas, 2011 WL 197964 (M.D. Ala. 2011), which is also persuasive. In
Allen, the court explained its adoption of the Lowery “unambiguously establish” standard
This case was removed to federal court under the second paragraph of
§ 1446(b), based on Plaintiff's deposition testimony, which Safeco argues is
the “other paper” by which it “‘first ... ascertained’ “that the case was
removable. (Not. of Removal ¶ 1 (quoting § 1446(b)).) As explained in
Lowery, under the second paragraph of § 1446(b), “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.” Lowery, 483 F.3d at 1213 n. 63. All three conditions must be present
before § 1446(b)’s thirty-day removal clock starts ticking.
Plaintiff does not dispute that Safeco has established two of these
conditions, i.e., that Plaintiff's deposition testimony constitutes “other paper”
and that Safeco received this other paper from Plaintiff. See id.; see also id.
at 1213 n. 62 (noting that deposition testimony has been found to qualify as
“other paper” under § 1446(b) (citing S.W.S. Erectors, Inc. v. Infax, Inc., 72
F.3d 489, 494 (5th Cir.1996))). Only Lowery’s third condition for a proper §
1446(b) paragraph two removal is at issue here: Whether Safeco could have
“first ascertain[ed]” from Plaintiff's deposition testimony that the damages in
this case exceeded $75,000 so that the suit could be maintained in federal
court. Lowery, 483 F.3d at 1213 n. 63. The issue is what is Safeco's burden
for proving this third condition.
Safeco contends that Plaintiff's deposition testimony shows by a
preponderance of the evidence that the amount in controversy exceeds
$75,000. (Resp. to Mot. to Remand 4.) Safeco does not address, however, the
impact of Lowery on a removing defendant’s burden when faced with a
timely § 1447(c) challenge to the propriety of removal under the second
paragraph of § 1446(b). Rather, as its sole support for application of the
preponderance of the evidence standard, Safeco cites a pre-Lowery district
court opinion that did not involve application of § 1446(b).4 (Resp. to Mot.
to Remand 4 (citing Alexander v. Captain D's, LLC, 437 F. Supp .2d 1320
Because Plaintiff's Motion to Remand was filed within thirty days of
the Notice of Removal, see§ 1447(c), Plaintiff properly challenges “the
propriety of the removal itself” under § 1446(b)'s second paragraph. Lowery,
483 F.3d at 1213 n. 64. “[I]n assessing the propriety of removal” under the
second paragraph of § 1446(b), “the court considers the document received
by the defendant from the plaintiff ... and determines whether that document
and the notice of removal unambiguously establish federal jurisdiction.” Id.
at 1213.The “document”—in this case, Plaintiff's deposition testimony—
“must contain an unambiguous statement that clearly establishes federal
jurisdiction,” in this case, the amount in controversy. Id. at 1213 n. 63 (citing
Bosky v. Kroger Texas, LP, 288 F.3d 208, 211 (5th Cir. 2002), and Huffman
v. Saul Holdings, LP, 194 F.3d 1072, 1078 (10th Cir. 1999))). The
“jurisdictional amount” must be “stated clearly on the face of the documents
before the court, or readily deducible from them.” Id. at 1211. If the evidence
does not unambiguously establish the amount in controversy in this way,
“neither the defendants nor the court may speculate in any attempt to make
up for the notice’s failings.” Id. at 1214–15. Accordingly, a defendant must
satisfy the “unambiguously establish” burden commanded by Lowery, where
the plaintiff timely challenges the propriety of removal under the second
paragraph of § 1447(c). See 483 F.3d at 1213 n. 64. That is the scenario in
this case, and, thus, Lowery governs the present analysis.
To say that Lowery’s “unambiguously establish” standard governs in
this case, however, is not to say that Lowery has been warmly or readily
embraced. To the contrary, it has been criticized and its holding constricted,
most recently by the Eleventh Circuit in Pretka. Pretka rejected as dicta
Lowery’s statements affecting removals made pursuant to the first paragraph
of § 1446(b), like in Pretka, emphasizing that Lowery was a secondparagraph removal and “must be read in that context.” Pretka, 608 F.3d at
747, 757–58, 760, 767; see also Roe, 613 F.3d at 1061 (following Pretka and
noting that “[t]his opinion considers removal only under the first paragraph
of § 1446(b); it does not address the effect of Lowery... on second-paragraph
Moreover, to say that Lowery’s “unambiguously establish” standard
governs in this case should not be taken to mean that this court understands
the logic of the standard. Even Lowery itself recognized that the
“unambiguously establish” standard and the less rigorous preponderance of
the evidence standard were at odds. See 483 F.3d at 1211. If a defendant can
unambiguously establish the amount in controversy, “then the defendant
could have satisfied a far higher burden than preponderance of the evidence.”
Id. Lowery, however, did not resolve the conflict; rather, it concluded that it
was constrained by “precedent ... to continue forcing this square peg into a
round hole.” Id.; see also SUA Ins. Co. v. Classic Home Builders, LLC, No.
10–0388–WS–C, 2010 WL 4664968, at *4 (S.D. Ala. Nov. 17, 2010)
(Lowery’s “‘unambiguously establish’ standard necessarily is more exacting
than a preponderance of the evidence standard, and both of them cannot
Lowery’s unambiguously establish standard has not been rejected in
the context of a § 1446(b) second paragraph removal. Under Pretka's
rationale that Lowery is dicta as to a first-paragraph removal, any criticism
in Pretka as to the soundness of Lowery’s principles in § 1446(b) secondparagraph removals also must be regarded as dicta. As stated, this case
involves a removal under the second paragraph of § 1446(b), and the
propriety of the removal has been challenged in a timely-filed motion to
remand under § 1447(c). Given this procedural posture, the court will apply
Lowery. See Jackson v. Litton Loan Servicing, LP, No. 09cv1165, 2010 WL
3168117, at *4 (M.D. Ala. Aug. 10, 2010) (“Until the Eleventh Circuit
changes the rule set forth in Lowery, this Court will continue to apply it when
considering a notice of removal under the second paragraph of § 1446(b).”).
Allen at **3-5. This court agrees that the Lowery “unambiguously establish” standard
applies to second-paragraph removals such as the one before the court.3
Defendants argue that it was not until they received the “other paper” – i.e.,
plaintiff’s counsel’s March 4, 2016 email – that the time to remove the action began to run.
Plaintiff, although on notice of defendants’ email theory as set out in the notice of removal,
does not mention the “other paper” doctrine in her motion to remand and, indeed, offers no
argument or evidence to the contrary.
See, e.g., Advantage Medical Electronics, LLC v. Mid-Continent Gas Co., 2014 WL 1764483, *4 (S.D.
Ala. May 5, 2014)(“Two major decisions by the Eleventh Circuit, Roe and Pretka, followed Lowery and
lightened the burden as amount in controversy for cases removed under § 1446(b)(1), however, “[t]his
Court agrees with the weight of authority in this circuit following Roe and Pretka, that the analysis set forth
in Lowery still applies to [§ 1446(b)(3) ] cases.”)(alteration in original); Brown v. Tanner Med. Ctr., 2010
WL 3328500, *3 (M.D. Ala. Aug. 23, 2010)(“As this is a second-paragraph Type 1 case, the case is still
governed by the analysis outlined in Lowery [.]”).
The language of the email is clear and unambiguous. In response to an email from
plaintiff’s counsel, in which plaintiff’s counsel explicitly references the possibility that
defense counsel will remove the case and volunteers to defense counsel that plaintiff “will
be asking for more than $75,000,” defense counsel asks if “the amount in controversy is
n[o]w in excess of $75,000.” (Doc. 1-2 at 2). Plaintiff’s counsel unequivocally responds
by confirming that the amount of controversy is in excess of $75,000. (Id.). Plaintiff neither
disputes that this email discussion took place, nor argues that defense counsel knew or
should have known earlier that she intended to seek damages in excess of the jurisdictional
Accordingly, defendants have met their burden to establish unambiguously that this
case became removable on March 4, 2016. Defendants have also met their burden of
demonstrating that their removal was timely. The motion to remand is due to be denied on
Failure to attach required documents to the notice of removal
Plaintiff contends that the case is also due to be remanded on the basis that
defendants failed to attach certain documents to their notice of removal. Specifically,
plaintiff argues that defendant failed to attach the summons papers sent to defendants, as
well as their returns of service. Defendants counter that because the “other paper,” as
opposed to the complaint, triggered their right to remove the case, they were not required
Indeed, the event which appears to have precipitated the email exchange was plaintiff’s counsel’s receipt
of defendants’ written discovery requests (interrogatories, requests for production, and requests for
admission). (Doc. 1-2 at 2). Therefore, at the time the subject email was sent, defendants had not yet
received written discovery responses from plaintiff.
to attach the summons papers and returns of service associated with the complaint.
Defendants cite no law for this proposition and the court has been unable to find any such
authority. Notwithstanding, plaintiff’s motion to remand is still due to be denied.
Plaintiff is correct that the removal statute requires the removing defendants to
attach to the notice of removal “a copy of all process, pleadings, and orders” served on
them. 28 U.S.C. § 1446(a). However, the law of this Circuit is clear that failure to attach
these documents is not a ground for remand. See Usatorres v. Marina Mercante
Nicaraguenses, S.A., 768 F.2d 1285, 1286-87 (11th Cir. 1985)(removal is proper even if
all the necessary papers are not filed with the notice of removal, as those documents can
be later supplied); Nam v. U.S. Xpress, Inc., 2011 WL 1598835, 4 (N.D. Ga. 2011)(accord,
collecting cases); 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3733 (2008) (“The failure to conform to these procedural rules is
not a jurisdictional defect, and both the failure to file all the state court papers or to provide
the Rule 11 signature are curable in the federal court if there is a motion to remand.”). This
case is not due to be remanded for defendants’ failure to attach the summons papers and
returns of service to the notice of removal.
For the reasons set forth above, it is
ORDERED that plaintiff’s motion to remand is DENIED. It is further
ORDERED that defendants shall supplement the record to include all state court
process, pleadings, and orders served on them at the time of removal on or before
November 8, 2016.
DONE, on this the 25th day of October, 2016.
/s/ Susan Russ Walker
Susan Russ Walker
Chief United States Magistrate Judge
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