Sullins v. Moreland et al
MEMORANDUM OPINION AND ORDER: it is ORDERED that the Plaintiff's 14 motion to remand is DENIED. Signed by Chief Judge Emily C. Marks on 1/6/2021. (amf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
) CIVIL ACT. NO. 3:20-cv-0530-ECM
JEFFREY MORELAND, et al.,
MEMORANDUM OPINION AND ORDER
The idea “that the plaintiff is the master of the complaint” is central to federal
question jurisprudence. Caterpillar Inc. v. Williams, 482 U.S. 386, 399 (1987). What goes
hand in hand with this understanding is a plaintiff is held responsible for strategic decisions
he makes when crafting his complaint through the addition or subtraction of parties or
claims. Id; See also Lincoln Prop. Co. v. Roche, 546 U.S. 81, 88–91 (2005) (citing 16 J.
Moore et al., Moore's Federal Practice § 107.14[c], p. 107–67 (3d ed. 2005)). But the
Plaintiff here requests that this Court depart from this understanding by finding no
jurisdiction exists. Charles Sullins (“Plaintiff”) asks this Court to remand his suit against
Jeffery Moreland (“Moreland”), his employer J & J Martin, Inc. (“J & J Martin”), and
Geico Casualty Company (“Geico”) (collectively “Defendants”) back to state court for lack
of subject matter jurisdiction. The Plaintiff argues that the Defendants have failed to show
by the preponderance of the evidence that the required amount in controversy exists. This
is after the Plaintiff added his insurance carrier Geico for an underinsured motorist (“UIM”)
claim that is only triggered if the damages for his various other claims exceed $1,000,000.
It seems like the Plaintiff wants to have his cake (potentially recovering against his insurer
if his damages exceed $1,000,000) and eat it too (proceed in state court).
consideration of the motion and for reasons that follow, the Court concludes that the motion
to remand (doc. 14) is due to be DENIED.
STANDARD OF REVIEW
Federal courts are courts of limited jurisdiction and therefore possess only the power
authorized by the Constitution or statute. Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994). Courts should presume that a case lies outside of this limited
jurisdiction, and the burden of establishing the contrary should be upon the party asserting
jurisdiction. Id. Although a defendant has the statutory right to remove in certain situations,
the plaintiff is still the master of his claim. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095
(11th Cir. 1994). For that reason, the defendant’s right to remove and the plaintiff’s right
to choose his forum are “not on equal footing.” Id. Accordingly, the defendant’s removal
burden is a heavy one. Id.
A defendant may remove a case based on diversity jurisdiction under two
circumstances. First, a defendant may immediately remove a case to federal court within
thirty days of receipt of the initial pleadings if it is apparent that complete diversity and the
required amount in controversy exist. See 28 U.S.C. § 1446(b)(1) (2012) (formerly called
paragraph one removal). Second, if the amount in controversy was not apparent from the
initial pleading, a defendant has the opportunity to remove the case within thirty days of
receiving a document later establishing the requisite amount in controversy. To prove that
the amount in controversy is later discernible, the defendant must provide “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)(3) (formerly called paragraph 2
removal). In this instance, “other paper” under subsection (b)(3) is “information relating
to the amount in controversy in the record of the State proceeding, or in responses to
discovery . . . .” § 1446(c)(3)(A).
When the plaintiff does not specify the amount in controversy, the importance of
these two removal opportunities is not just that they provide defendants two discrete
windows when removal is appropriate, but they also require courts to apply two different
standards to determine whether federal jurisdiction exists. Under both standards, a
defendant desiring to remove a case to federal court must file with a district court a “notice
of removal . . . containing a short and plain statement of the grounds for removal, together
with a copy of all process, pleadings, and orders” served on the defendant. § 1446(a). If a
plaintiff does not specify damages in state court, a removing defendant must prove by the
preponderance of the evidence that the amount in controversy exceeds the jurisdictional
requirement. Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010). But how
a court is to determine this and what evidence it is permitted to consider depend on when
the case was removed to federal court.
Based on the circumstances under which the defendant removed the case to federal
court, the Eleventh Circuit has set forth two different standards to evaluate whether a
plaintiff’s claims satisfy federal diversity jurisdiction prerequisites. When the Circuit first
examined this question, it taught, a “court considers the document received by the
defendant from the plaintiff—be it the initial complaint or a later received paper—and
determines whether that document and the notice of removal unambiguously establish
federal jurisdiction.” Lowery v. Alabama Power Co., 483 F.3d 1184, 1213 (11th Cir. 2007).
Relying on the fact Lowery was a later § 1446(b)(3) removal, a subsequent Circuit panel
cabined the document received by the plaintiff and unambiguously establish language to
only apply to second paragraph removal actions. Pretka v. Kolter City Plaza II, Inc., 608
F.3d 744, 763 (11th Cir. 2010). And it also cautioned courts against “[i]mplicitly reading
the language into the first paragraph of that subsection, where it does not exist . . . .” Id.
By distinguishing first and second paragraph removal, Pretka identifies a less
demanding path for removal under § 1446(b)(1). The Circuit explained, “[w]hen the
complaint does not claim a specific amount of damages, removal from state court is
[jurisdictionally] proper if it is facially apparent from the complaint that the amount in
controversy exceeds the jurisdictional requirement.” Pretka, 608 F.3d at 754 (citing
Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)). And if the
jurisdictional amount is not facially apparent from the complaint, the court should look to
“the notice of removal and may require evidence relevant to the amount in controversy at
the time the case was removed.” Id. The Circuit also expanded the types of evidence
defendants could use to show the existence of the required amount in controversy. Pretka,
608 F.3d at 755 (“Defendants may introduce their own affidavits, declarations, or other
documentation . . . .”).
Pretka also clarifies how courts are to discern whether the required amount in
controversy exists based on the notice of removal and any attendant evidence. The Pretka
court reframed Lowery as a case about “how to apply the preponderance of the evidence
standard in the ‘fact-free context’ of that particular case.” Pretka, 608 F.3d at 753. In that
fact-free context, the amount in controversy could only be determined “by the looking at
stars” and that, of course, would be impermissible. Id at 753–54. So when a moving
defendant actually makes specific factual allegations and can support those allegations, a
court may make “reasonable deductions, reasonable inferences, or other reasonable
extrapolations” from the pleadings to aid in its determination whether the required amount
in controversy exists. Roe, 613 F.3d at 1061–62 (citing Pretka, 608 F.3d at 754).
Essentially, the court is not required to “suspend reality or shelve common sense” to
determine whether the complaint or other documents establish the jurisdictional amount.
Pretka, 608 F.3d at 770 (citing Roe v. Michelin, 637 F.Supp.2d 995, 999 (M.D. Ala. 2009)).
Rather, courts are to use their “judicial experience and common sense” to evaluate whether
the amount in controversy meets the jurisdictional requirement. Roe, 637 F.Supp.2d at 999.
It is important to keep in mind “a removing defendant is not required to prove the amount
in controversy beyond all doubt or to banish all uncertainty about it.” Jones v. Novartis
Pharm. Co., 952 F.Supp.2d 1277, 1283 (N.D. Ala. 2013) (citing Pretka, 608 F.3d at 754).
While the court may not speculate to the exact dollar amount, it can conclude, for example,
without speculating “from the egregious conduct alleged that the amount, whatever it is,
far exceeds $75,000.” Pretka, 608 F.3d at 754 (citing Roe, 637 F.Supp.2d at 999). But if
the defendant’s evidence is insufficient, the court may not “speculate in an attempt to make
up for the notice’s failings.” Pretka, 608 F.3d at 752 (quoting Lowery, 483 F.3d at 1214–
To summarize, before determining—when not clear from the pleadings—if the
amount in controversy exists, courts must first determine which of the two removal
provisions apply based on when in the life of the case it was removed. After a court
determines which applies, it is to consider the evidence appropriate under each removal
action. When a defendant removes a case within the first thirty days after receipt of the
initial complaint, the court may determine whether, by the preponderance of the evidence,
the required amount in controversy exists based on both the initial complaint and other
evidence introduced by the defendant with the notice of removal.
But if diversity
jurisdiction is not apparent from the initial complaint but the case later becomes removable,
the court may only evaluate “the initial complaint or a later received paper [from the
plaintiff]” and the notice of removal to determine whether the amount in controversy is
unambiguously established. Lowery, 483 F.3d at 1213. Under either standard, the court
may use “deduction, inference, or other extrapolation” to determine whether the relevant
evidence submitted by the removing party supports the existence of the required amount in
controversy. Pretka, 608 F.3d at 753. But this ability for courts to consider the amount in
controversy is limited. When the court is presented with a notice of removal without facts
or specific allegations, it may not speculate or divine “by looking at the stars” the amount
in controversy. Id. (citing Lowery, 483 F.3d at 1209, 1215.).
FACTS AND PROCEDURAL HISTORY
Around midnight in December 2019, Charles Sullins was driving his car north on
Interstate 85 in Macon County, Alabama. At the same time, Jeffrey Moreland was driving
an 18-wheeler also north on Interstate 85. J & J Martin employed Moreland and owned
his 18-wheeler. Moreland’s truck collided with Sullins’ car. This collision seriously
injured Sullins, and his car had to be towed away from the scene. (Doc. 1-2 at 3–4).
On June 23, 2020, the Plaintiff sued Jeffrey Moreland and J & J Martin in Macon
County, Alabama, for negligence; negligent hiring, training, supervision, retention;
negligent entrustment; and recklessness and wantonness. (See Doc 1-1). Sullins alleged
various physical and emotional injuries and damages including medical and financial
losses. The Plaintiff sought compensatory and punitive damages against Moreland and J
& J Martin. (Doc. 1-2 at 4–7). A copy of the complaint and summons was served by
certified mail on Defendants Moreland and J & J Martin on June 27, 2020. (Doc. 1 at 2;
doc 1-3 at 44–48).
On July 17, before the Defendants answered the initial complaint, Sullins amended
his complaint and joined his auto-insurer, Geico. In his amended complaint, he brought an
underinsured motorist claim against Geico for any damages over Moreland’s and J & J
Martin’s insurance policy limit. (Doc 1-2 at 7–8). The Plaintiff also claims Geico “agreed
to pay all sums that the insured party would be legally entitled to recover as damages from
the owner and operator of an uninsured and underinsured vehicle.” (Id.).
On July 27, within thirty days of receiving the initial complaint, the Defendants
removed the case to federal court based on diversity jurisdiction. Geico consented to the
removal. (Doc. 1-5 at 2). At the end of August, the Plaintiff filed a motion to remand the
case back to state court. (Doc. 14).
Plaintiff seeks remand of this case back to state court. Both parties agree that
complete diversity exists. (Doc. 14 at 2). But the Plaintiff argues the Defendants failed to
establish that his claim meets the $75,000 amount in controversy required by 28 U.S.C §
1332 federal diversity jurisdiction. (Doc. 14 at 2).
In his motion to remand, the Plaintiff argues the Defendants failed to prove by the
preponderance of the evidence that the amount in controversy is facially apparent or
unambiguously established from the Plaintiff’s complaint. (Doc. 14 at 3–6). The Plaintiff
also argues his claim for underinsured motorist coverage against Geico is not relevant to
the amount in controversy. Finally, the Plaintiff rejects any argument that he must stipulate
that the amount in controversy is less than the jurisdictional requirement.
To determine whether the case should be remanded back to state court, this Court
will first determine whether this is a § 1446(b)(1) first paragraph or § 1446(b)(3) second
paragraph removal action. And based on that determination, the Court will then consider
the evidence and apply the appropriate standard to determine if the defendant has shown
the amount in controversy exists.
A. This case was removed based on the initial complaint under § 1446(b)(1) first
There are several reasons why this case might seem removable under either removal
section. For example, in their notice of removal, the Defendants stated that the case was
removed under § 1446(b), but they did not specify under which section. (Doc. 1 at 2). The
Plaintiff also used both the “facially apparent” and “unambiguously establish” language to
challenge the amount in controversy. (Doc. 14 at 2–6). But perhaps most importantly,
determining the removal standard was also complicated by the fact the Plaintiff filed an
amended complaint in the first 30 days before there was an opportunity for the Defendants
to respond to the initial complaint. Despite this lack of clarity, this Court concludes that
this case was properly removed under § 1446(b)(1).
In making this determination, this Court looks to the example set by the Circuit in
Pretka. There, the plaintiffs amended their complaint within thirty days of filing the
original complaint. Pretka, 608 F.3d at 747. The Circuit noted that the two complaints
were “materially identical except that the amended complaint was brought by all seven,
instead of just three, named plaintiffs.” Id. Even though the amended complaint
“contain[ed] some additional information on the amount in controversy,” the Circuit
decided to accept and “refer to the amended, operative complaint as ‘the complaint’ . . . .”
Id. at 747–48. Although the defendant in Pretka arguably removed an amended pleading,
the Circuit concluded that the removal action was governed by § 1446(b)(1) “[b]ecause
[the defendant] filed its notice of removal within thirty days of being served with the
summons and initial complaint.” Id. at 757. And therefore, the defendant’s removal was
timely because the notice of removal was filed within the specified time for first paragraph
removal. Id. This can be contrasted to Lowery where the defendant removed the case three
years after the plaintiffs filed the initial complaint and, therefore, had to rely on the second
paragraph as the ground for removal. Pretka, 608 F.3d at 757 (citing Lowery, 483 F.3d at
1188). The Circuit noted Lowery was “long after the closing of the 30-day removal window
supplied by the first paragraph of § 1446(b).” Id. In Pretka¸ it also explained the defendant
‘“do[es] not, and do[es] not need to, invoke the second paragraph’s extended filing
period.’” Id. at 757 (citing Badon v. R J R Nabisco Inc., 224 F.3d 382, 390 (5th Cir. 2000)).1
Because the amended complaint was removed to federal court within thirty days of the
defendant’s receipt of the initial complaint, the Circuit concluded that the case arose “under
the first paragraph of § 1446(b).” Pretka, 608 F.3d at 757, 768.
In the instant case, the Plaintiff filed his original complaint in state court on June
23, 2020, and the Defendants Moreland and J & J Martin were properly served on June 27,
2020. The Plaintiff amended his complaint on July 17, 2020 to add Geico. Without
answering either complaint, on July 27, 2020, the Defendants, with the consent of Geico,
removed this case to federal court. Because the Defendants removed the case to federal
court within the thirty-day window prescribed in § 1446(b)(1), this Court finds that,
consistent with Pretka, this case was properly removed under § 1446(b)(1).
To find otherwise would require courts to speculate the motives of removal and
would incentivize opportunistic pleading on the part of plaintiffs. Under both Alabama
and federal law, an amended complaint supersedes the initial complaint and becomes the
operative pleading in the case. Lowery, 483 F.3d at 1219; Ex parte Puccio, 923 So.2d 1069,
1072–73 (Ala. 2005). The Supreme Court further explains, “when a plaintiff files a
See also Badon v. R J R Nabisco Inc., 224 F.3d 382, 390 (5th Cir. 2000) (“It is wholly evident that the purpose of
the second paragraph is to extend the time for filing notice of removal under the stated circumstance, and not to in
any event shorten it to less than it would be under the first paragraph.”).
complaint in federal court and then voluntarily amends the complaint, courts look to the
amended complaint to determine jurisdiction.” Rockwell Int'l Corp. v. United States, 549
U.S. 457, 474 (2007). Although it might appear that the amended complaint would fall
under “amended pleading” in § 1447(b)(3), this understanding would create the strange
outcome whereby the Defendants would have to rely on the initial complaint and the
amended complaint separately to make their argument for removal. But the court in Lowery
prohibited a similar practice. 483 F.3d at 1219 (“[i]t would be improper to bind the
plaintiffs by the prayer for relief in the initial pleadings.”). Similarly, a removing defendant
would not be able to simply ignore the amended portion of the complaint added within the
first thirty days and solely focus on the original complaint. This is supported by Circuit
precedent that teaches “an amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment and is no longer a part of the pleader's averments
against his adversary.” Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th
Cir. 2007). This would also create perverse incentives for plaintiffs to amend pleadings
within the first thirty days to subject any potential removal to the higher Lowery standard.
Because the Plaintiff amended the complaint within thirty days after being served and the
Defendants removed the complaint within that same period, this Court will consider the
amended complaint under § 1446(b)(1) instead of § 1446(b)(3).
Because the suit is governed § 1446(b)(1), the Defendants are not limited to
documents “generated or compiled” by the Plaintiff to unambiguously establish the
jurisdictional requirement as required by Lowery. 483 F.3d at 1213. Instead, the Court may
consider the Defendants’ “affidavits, declarations, or other documentation” when the
amount in controversy is not facially apparent from the complaint. Pretka, 608 F.3d at 755.
B. The Plaintiff’s complaint and the Defendants’ notice of removal more likely than
not show that the requisite amount in controversy exists.
The Defendants argue the Plaintiff’s complaint meets the amount in controversy
requirement for three reasons. First, the Defendants argue that the Plaintiff’s alleging
serious bodily injuries and destruction of his vehicle coupled with a variety of
compensatory and punitive damages sufficiently establish the amount in controversy. (Doc.
1 at 5–6). The Defendants buttress this claim by adding that the venue “is notorious for
substantially large jury verdict awards to personal injury plaintiffs (particular in cases
against out-of-state corporations) . . . .” (Id. at 5). Next, the Defendants argue the Plaintiff’s
failure to stipulate to the value of his claims is evidence of the required amount in
controversy. (Id. at 8). Finally, the Defendants argue that by bringing an underinsured
carrier claim against his insurer the Plaintiff concedes that he is seeking more than the
statutory minimum insurance coverage for interstate carriers—$750,000. (Id. at 10).
The Court will consider these claims in turn and in totality to determine if the
Defendants have shown by the preponderance of the evidence that the required amount in
controversy exists. Because a defendant or a court itself may be better situated to
accurately assess the amount in controversy, the Court is not bound by the Plaintiff’s
representations regarding his claim, nor must it “assume that the Plaintiff is in the best
position to evaluate the amount of damages sought.” Roe, 613 F.3d at 1061.
1. The nature of the injuries and type of damages requested make it more likely
that the amount in controversy exists.
The injuries and damages sought by the Plaintiff are of a type that make it more
likely that the required amount in controversy exists. The Plaintiff sued the Defendants for
negligence; negligent hiring, training, supervision, retention; negligent entrustment; and
recklessness and wantoness. (Doc. 1-2 at 3–7). The Plaintiff alleges that he suffered
“serious bodily injuries,” and the accident left his vehicle inoperable. (Id. at 3–4). And as
a result of these injuries, the Plaintiff seeks damages for the following harms: (1) serious
bodily injuries; (2) other bodily injuries; (3) loss of enjoyment of life; (4) medical bills and
other financial losses; (5) past, present, and future pain and suffering; and (6) past, present,
and future mental anguish and emotional distress. (Id. at 4).
Plaintiff seeks both
compensatory and punitive damages against Moreland and J & J Martin. (Id.).
The Defendants remind the Court that “judicial experience and common sense”
would suggest that the nature of injuries coupled with unspecified punitive damages show
the amount in controversy has been met. (Doc. 1 at 14). To support this claim, the
Defendants rely on several Northern District of Alabama cases that assert some variation
of the premise that claims for unspecified punitive damages almost always meet the
jurisdictional requirement. Tucker v. Northbrook Indem. Co., 2013 WL 5961095, at *1
(N.D. Ala. Nov. 7, 2013) (“The ‘legal certainty’ that there could not be sufficient punitive
damages to take the recovery beyond $75,000 is virtually impossible to demonstrate.”);
Jones v. Hartford Fire Ins. Co. 2013 WL 550419, at *1 (N.D. Ala. Feb. 7, 2013) (“the
moment a state court plaintiff seeks unspecified damages of various kinds, such as punitive
damages . . . the claim automatically is deemed to exceed $75,000 and becomes removable
under 28 U.S.C. § 1332.”); Smith v. State Farm Fire & Cas. Co., 868 F.Supp.2d 1333,
1335 (N.D. Ala. 2012) (concluding when pursuing claims against diverse parties seeking
unspecified damages of various kinds, including punitive damages, plaintiffs must formally
and expressly disclaim any entitlement to more than jurisdictional amount).
The Plaintiff responds that the Defendants put forth nothing more than conclusory
assertions about the existence of the required amount in controversy. The Plaintiff argues
that the Court should not rely on a “conclusory allegation in the notice of removal that the
jurisdictional amount is satisfied, without setting forth the underlying facts supporting such
an assertion . . . .” Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002)
(quoting Williams, 269 F.3d at 1319–20). The Plaintiff supports this claim by pointing to
Eleventh Circuit precedent where the Court found the amount in controversy to be
inconclusive where a complaint pleaded only “general, special, and punitive damages for
permanent physical and mental injuries, as well as substantial medical expenses, lost
wages, and diminished earning capacity . . . .” Williams, 269 F.3d at 1320. Similar to
Williams, the Plaintiff argues the Defendants have not shown that the amount in
controversy is facially apparent, because, to support their removal, the Defendants rely on
general, special, and punitive damages from the injuries caused by the Defendants’ alleged
negligent, reckless, and wanton misconduct. (Doc. 14 at 5). The Plaintiff concludes that
the fact that there was serious bodily injury and the vehicle was rendered inoperable is not
enough to show that the amount in controversy is facially apparent. (Id. at 6).
Although the Court does not accept the notion that a complaint with unspecified
punitive damages necessarily meets the jurisdictional minimum, it does find the nature of
the claims, extent of alleged damages, and the damages sought to be probative and useful
to determine whether the required amount in controversy exists. As described in Pretka, a
court may make “reasonable deductions, reasonable inferences, or other reasonable
extrapolations” when a removing defendant makes “factual allegations establishing
jurisdiction and can support them . . . .” Pretka, 608 F. 3d at 754. This case involves a
collision with an 18-wheeler that resulted in “serious bodily injuries” and rendered the
Plaintiff’s car inoperable. (Doc. 1-2 at 3–4). The Plaintiff correctly notes that the Williams
court remanded when the plaintiff in that case alleged unspecified injuries and damages as
a result of a fall in the Best Buy parking lot and refused to stipulate her claim was less than
the jurisdictional minimum. Williams, 269 F.3d at 1318. But the instant case can be
distinguished from Williams because the Plaintiff pleaded more than conclusory statements
or bare pleadings. In Williams, the defendant removed the case solely because the plaintiff
refused to stipulate. Id. at 1318, 1320. And the defendant’s notice of removal contained
“no other factual allegations regarding the amount in controversy” and “did not submit any
evidence concerning the amount in controversy.” Id. at 1320. By alleging he suffered
“severe bodily injury” and the fact his car was left inoperable, the Plaintiff provided facts
that go beyond the bare pleadings in Williams. Although these facts might show that the
amount in controversy could well exceed the statutory minimum, they alone do not make
the amount in controversy facially apparent. Because of this, the Court looks to the
Defendants’ notice of removal for more evidence. Williams, 269 F.3d at 1319.
2. Not stipulating to the amount in controversy requirement is persuasive but not
dispositive to the existence of the amount in controversy.
In their notice of removal, the Defendants argue the Plaintiff’s failure to stipulate
that the value of his claims are less than $75,000 supports the existence of the required
amount in controversy. Refusing to stipulate that the amount in controversy is less than
the jurisdictional requirement is not dipositive, but it nevertheless is probative to the
existence of the amount in controversy. The Eleventh Circuit has held that “a refusal to
stipulate standing alone does not satisfy [the defendant’s] burden of proof on the
jurisdictional issue.” Williams, 269 F.3d at 1320 (emphasis added). But this does not mean
that a court may never consider a refusal to stipulate—just that it may not rely on it alone
to conclude that the required amount in controversy exists. Where a defendant does not
rely exclusively on a refusal to stipulate to substantiate all his or her argument, a court may
consider such a refusal in making its decision on whether to remand the case. Jones v.
Novartis Pharm. Co., 952 F.Supp.2d 1277, 1286–87 (N.D. Ala. 2013); see also Devore v.
Howmedica Osteonics Corp., 658 F.Supp.2d 1372, 1380 (M. D. Fla. 2009) (“[A] plaintiff's
refusal to stipulate or admit that she is not seeking damages in excess of the requisite
amount should be considered when assessing the amount in controversy.”).
The Parties set out two diametrically opposite positions on how the Court should
consider the Plaintiff’s refusal to stipulate. Plaintiff points to Williams to support his claim
that he is not required to state that he seeks less than the jurisdictional minimum. (Doc. 14
at 5–6). And because of this, the Court should not consider his refusal to stipulate. (Id. at
5–6, 8–9). On the other hand, the Defendants again cite the string of cases from the
Northern District of Alabama that required plaintiffs to disclaim a recovery above the
jurisdictional amount when seeking various types of unspecified damages including
punitive. See Tucker, 2013 WL 5961095 at *1; Jones, 2013 WL 550419 at *1; Smith, 868
F.Supp.2d at 1335. The Court considers the Plaintiff’s failure to stipulate somewhere in
between the parties’ respective positions.
Here, the failure to stipulate is one among several reasons why the amount in
controversy exists. Unlike in Williams, where the defendants solely relied on a refusal to
stipulate, Defendants here point to the nature of the claims, damages, the addition of the
Plaintiff’s underinsured carrier claim, facts about the extent of damages—although few—
in addition to the fact that the Plaintiff refused to stipulate to less than the jurisdictional
prerequisite. Accordingly, Williams does not preclude the Court’s consideration of the
failure to stipulate when determining the amount in controversy. But this is not to say that
the Court agrees with the Defendants’ contention that a failure to stipulate the amount in
controversy necessarily triggers federal jurisdiction. Instead, the Court finds that the
failure to stipulate is relevant, but not dispositive, as to whether the amount in controversy
is present. The Court concludes that the Plaintiff’s failure to stipulate is one factor that
tends to show that the amount in controversy more likely exists.
3. The Plaintiff’s adding his auto insurer through an underinsured motorist
claim is probative to the value of his claim.
The Defendants argue that by seeking underinsured motorist damages from Geico,
the Plaintiff “presupposes that he values his case at more than the Defendant Moreland and
J & J Martin’s insurance liability limits.” (Doc. 1 at 10). Federally regulated motor carriers
are statutorily mandated to have $750,000 in liability insurance,3 and J & J Martin actually
had $1,000,000 in coverage. (Doc. 1-6). Therefore, the Defendants argue that the Plaintiff
is at least seeking $750,000 in damages because underinsured coverage only applies when
the Defendants’ underlying insurance coverage has been exhausted. (Id. at 6–7, 10).
Pointing to the Plaintiff’s “claim for judgment for all compensatory damages and punitive
damages” against Geico, the Defendants reject the Plaintiff’s contention that they only sued
Geico to put them on notice of their pending suit. (Doc. 19 at 9). The Defendants remind
the Court that Alabama law does not require joining an underinsured carrier because a
plaintiff may “merely provide notice to the UIM carrier of the action and the possibility of
a UIM carrier claim.” (Id. at 8).
In his motion to remand, Plaintiffs argue that the Defendants are speculating when
they say adding an underinsured claim against Geico is demonstrative of the amount in
controversy. Relying on Lowery, the Plaintiff asserts a “document received by the
defendant from the plaintiff—be it the initial complaint or a later received paper—” must
“unambiguously establish federal jurisdiction.” (Doc. 14 at 6). In addition, the Plaintiff
argues that at the time of the initial and amended complaint he was not aware of the
Defendant J & J Martin’s policy limits and only joined Geico to put his insurer on notice
of the pending litigation.
The Alabama Uninsured Motorist statute is designed to protect those who are
“legally entitled to recover damages from owners or operators of uninsured motor vehicles”
See 49 C. F.R. § 387.301(a)(1) & 387.303(b)(2).
including when limits of “insurance policies available to an injured person” are “less than
the damages which the injured person is entitled to recover.” Ala. Code § 32-7-23(a) &
(b)(4). In such a situation, the Supreme Court of Alabama explained, “[underinsured
motorist] coverage, by definition, does not duplicate liability coverage but is coverage in
excess of liability coverage, and is available to a claimant only after the claimant has
exhausted available liability coverages.” State Farm Mut. Auto. Ins. Co. v. Motley, 909
So.2d 806, 811 (Ala. 2005) (emphasis in original) (citing Dillard v. Ala. Ins. Guar. Ass'n,
601 So.2d 894, 896 (Ala. 1992)). The Defendants are correct that “[a] plaintiff is allowed
either to join as a party defendant his own liability insurer in a suit against the underinsured
motorist or merely to give it [the insurance carrier] notice of the filing of the action . . . .”
Ex parte Geico Cas. Co., 58 So.3d 741, 743 (Ala. 2010) (emphasis in original) (citing Lowe
v. Nationwide, 521 So.2d 1309, 1310 (Ala. 1988)).
Considering the nature of an underinsured claim and the fact that state law did not
require the Plaintiff to bring a claim against his insurer, this Court finds the Plaintiff’s
joining Geico probative to determine whether the required amount in controversy exists.
First, this Court finds it telling that the Plaintiff joined Geico when it simply could have
provided notice to his insurer of the pending lawsuit. If one is to accept the truism that the
“plaintiff is the master of the complaint,” the Court should take seriously the implications
of the Plaintiff voluntarily adding Geico when alternative means of preserving an
underinsured auto claim were available to him. If we are to take the Plaintiff at his word
when he asserts “a claim for judgment for all compensatory damages and punitive damages
against” Geico, he is doing more than providing notice to his insurer by adding Geico to
the case. (Doc. 1-2 at 7–8).
Second, the Court finds it unpersuasive that the Plaintiff was not aware that J & J
Martin had or was required to carry the federally mandated insurance minimum. The
Plaintiff argues that the chain of inferences required to support the Defendants’ contention
that he is seeking a recovery at or above the statutory threshold is “pure speculation.” (Doc.
14 at 6). The Plaintiff argues that it would be speculative for the Court to assume that he
knew “whether or not Federal statutory law required trucks/trailers on United States
roadways to maintain minimum limits of liability insurance in order to have federal
operating authority.” (Id.). He further labels as speculative that he knew “Defendant J & J
Martin, Inc. was in compliance with the United States Codes of Federal Regulations
minimum compulsory financial responsibility requirements of at least $750,000.00 . . . .”
(Id.). The Court instead finds that these are “reasonable deductions, reasonable inferences,
or other reasonable extrapolations” that it can make in assessing whether the required
amount in controversy exists in this case. Roe, 613 F.3d at 1061–62 (citing Pretka, 608
F.3d at 754). The Plaintiff knew that J & J Martin was an out-of-state trucking company,
so it is reasonable to conclude that he would know that the Defendant would be covered by
federal trucking laws. (Doc. 1-2 at 2). And the amount of insurance required was not a
secret but was instead required by federal law.
But even with these things in mind, the Plaintiff alleges he was unaware of the
Defendant J & J Martin’s insurance policy limits or that the coverage would cover the
Plaintiff’s damages. Even if the Court were to accept the Plaintiff’s claims that he did not
know that J & J Martin had or was required to have at the time of the accident $750,000 in
insurance, the Court may still consider the “affidavits, declarations, or other
documentation” provided by the Defendants. In its notice of removal, the Defendants
included a declaration of the president of J & J Martin who explained that the company is
an interstate motor carrier, was required by federal law to carry a minimum of $750,000 in
insurance, and at the time of the incident was in compliance with federally required
“minimum responsibility” by having coverage of $1,000,000. (Doc. 1-6). With Roe’s
admonition that “the defendant or the court itself may be better-situated to accurately assess
the amount in controversy” in mind, the Court concludes that the Plaintiff should have
known that Defendant J & J Martin was insured for at least $750,000. Roe, 613 F.3d at
1061. And even if he did not know, it is largely irrelevant because J & J Martin did carry
the required insurance. (Doc. 1 at 10; doc. 1-6 at 4–6). The Defendants provided enough
evidence to show that they are indeed insured for well over the statutory minimum.
C. Considering the evidence in the complaint and notice of remand, the Court
concludes the amount in controversy has been established by the preponderance
Based on the nature of the injuries described, the damages sought, the refusal to
stipulate that the claim is less than $75,000, and the addition of an underinsured carrier
claim, this Court concludes that the amount in controversy in this case more likely than not
exceeds the jurisdictional amount. The Plaintiff argues throughout his pleadings that not
one of these factors would be enough to create federal jurisdiction. But, in this case, there
is not one, but multiple factors that weigh against remand.
Nevertheless, the Plaintiff implies that considering all these factors together is
insufficient for a court to find that the statutory minimum exists. Citing Toole v. Chupp,
456 F.Supp.2d 1218, 1222 (M.D. Ala. 2006), the Plaintiff argues the Defendants are
required to show more than they already have to prove the existence of the amount in
controversy. (Doc. 14 at 7–8). In Toole, the court found that the jurisdictional minimum
was met when the plaintiff, in addition to alleging substantial bodily harm, lifelong pain
and suffering, and adding an underinsured carrier claim, conceded he “could see a jury
‘bringing back more than seventy-five thousand.’” Toole, 456 F.Supp.2d at 1222.
However, subsequent courts have not interpreted that holding to require some sort of
acknowledgement by plaintiffs that their damages exceed the jurisdictional threshold. This
would fly in the face of past Circuit precedent that allows judges to make reasonable
inferences and deductions about the value of the claims. Roe, 613 F.3d at 1061–62 (citing
Pretka, 608 F.3d at 754). Although it would be helpful in this case if the Plaintiff specified
what sort of damages award he is seeking, it is not required. Even though there has been
no concession by the Plaintiff that the amount in controversy exceeds the requisite amount,
the nature of the injuries described, the damages sought, the refusal to stipulate that the
claim is less than $75,000, and the addition of an underinsured carrier claim make it more
likely than not that the amount in controversy has been met.
Based on the Plaintiff’s complaint and the Defendants’ notice of removal, the
amount in controversy more likely than not exceeds $75,000.
Therefore, for the reasons as stated, and for good cause, it is ORDERED that the
Plaintiff’s motion to remand (doc. 14) is DENIED.
DONE this 6th day of January 2021.
/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE
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