Holmes v. Behr Press Corporation et al

Filing 98

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 12/13/2016. (PSM)

FILED
2016 Dec-13 PM 01:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARY LEE HOLMES,
Plaintiff,
vs.
BEHR PROCESS
CORPORATION, et al.,
Defendants.

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2:15-cv-00454-LSC

Memorandum of Opinion
This matter is before this Court for consideration of the issue of subject
matter jurisdiction. Plaintiff Mary Lee Holmes (“Holmes”) filed her initial
complaint on March 17, 2015, asserting various claims arising out of her dealings
with Defendants Home Depot U.S.A., Inc. (“Home Depot”) and Behr Process
Corporation (“Behr”). This matter was originally before another District Judge
who has since retired.
While none of the parties raised the issue of subject matter jurisdiction, “it is
well settled that a federal court is obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking.” Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 410 (11th Cir. 1999). “As the Supreme Court long ago held in Ex
parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1868), ‘[w]ithout jurisdiction
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the court cannot proceed at all in any cause. Jurisdiction is power to declare the
law, and when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.’” Id. at 410 (quoting McCardle, 74
U.S. (7 Wall.) at 514).
In order to fulfill this obligation, this Court requested the parties brief the
issue of subject matter jurisdiction, particularly concerning the amount-incontroversy requirement. Both parties assert that subject matter jurisdiction exists,
if at all, based upon 28 U.S.C. § 1332(a) diversity jurisdiction. After a review of all
relevant pleadings, as well as with the benefit of the arguments of counsel, it is this
Court’s conclusion that there is less than $75,000 in controversy in this matter and
thus no subject matter jurisdiction.
I.

Background
Holmes was a resident citizen of Shelby County, Alabama, at the time she

filed the above-styled action. She is also an investor in residential property that she
purchased for approximately $45,000 in early 2013. Holmes, who has since
graduated from law school, bought the home in a foreclosure sale intending to
“flip” the home for a significant profit. After removing some interior walls and
replacing others with drywall material, on or about July 8, 2013, Holmes purchased
“Kilz” brand primer from Home Depot to cover the walls and ceilings. The Kilz
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brand of primer is manufactured by Behr. Behr is alleged by the parties to be a
citizen of California for diversity purposes. Home Depot is alleged by the parties to
be a citizen of Georgia for diversity purposes.
Holmes originally planned to perform much of the work herself to keep her
costs low, but at some point, she decided she needed help. Holmes then hired
painters who cleaned, prepared, and primed the surfaces throughout the residence
as directed in the manufacturer’s instructions for Kilz primer. Holmes and her
painters then painted the walls and ceilings, completing the application of primer
and paint by the beginning of August 2013.
At the end of October 2013, Holmes noticed on a final inspection that the
paint and primer were delaminating from the surfaces throughout the residence.
Holmes immediately notified Home Depot of the situation and then—at the
direction of Home Depot—contacted Behr. Behr refused to send a representative
to the residence but did advise Holmes how she should go about scraping and
repainting the surfaces. Behr also offered to send her all the primer and paint she
needed once she was ready for it at no further cost.1
Holmes hired a second painting company to scrape, prepare, and repaint the
surfaces in the residence. The scraping and preparation was completed on or about
1

Behr has since maintained that its representative offered only to provide replacement primer
free of charge in accordance with its warranty.
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November 5, 2014, and when Holmes notified Behr that she was ready for the
primer and paint, Behr indicated that it was sending the same primer as originally
used. Not willing to use the same product again, Holmes instead purchased a
different brand of primer and paint for her painters to apply. The work was
completed on November 26, 2014, with a total cost to Holmes of $19,246.68.
Holmes also contends that the re-application of the primer and paint resulted
in the need to refinish certain hardwood floors, costing $3,900, and other surfaces,
costing $3,447.47, and the devaluation of other surfaces, totaling $5,562.68. 2 The
total cost claimed by Holmes was $32,156.83, not including the damages for loss of
rent, emotional damages, and punitive damages that she requested in her
complaint. In her arguments to this Court on October 18, 2016, Holmes, who is
representing herself, stated that she could have rented the residence at a rate of
$1,500–$2,000 per month. Thus, Holmes could claim lost rent of $3,000–$4,000,
covering the amount of time the second painting crew needed to remove the
delaminating paint and primer and re-apply the paint and primer. Nevertheless,
Holmes claims a loss of rent totaling $48,000 that is not supported by the
pleadings, evidence, or arguments of counsel.
2

Holmes acknowledged in the October 18, 2016, hearing that these damages were the result of
the second team of painters not properly covering the floors, beams, etc. As such, it is
questionable if such damages are even recoverable from the current defendants, but the damages
will be included to give Holmes the benefit of the doubt.
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II.

Standard

“Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). Plaintiff asserts that this Court has diversity
jurisdiction over this matter. “In order to invoke a federal court’s diversity
jurisdiction, a plaintiff must claim, among other things, that the amount in
controversy exceeds $75,000.” Federated Mut. Ins. Co. v. McKinnon Motors, LLC,
329 F.3d 805, 807 (11th Cir. 2003) (citing § 1332). “Generally, ‘[i]t must appear to
a legal certainty that the claim is really for less than the jurisdictional amount to
justify dismissal.’” Id. (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303
U.S> 283, 289 (1938)).
Stated another way, in order to exercise jurisdiction over this action
pursuant to § 1332(a), this Court must assure itself that the parties are completely
diverse and that the amount in controversy exceeds $75,000, exclusive of interest
and costs. In addition, the party seeking federal jurisdiction must prove the
requirements of such jurisdiction. Travaglio v. Am. Express Co., 735 F.3d 1266, 1268
(11th Cir. 2013). It appears from the arguments and submissions of the parties that

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diversity of citizenship is met, although perhaps not clearly pled. 3 Regardless, this
opinion will not address the citizenship of the parties further, as the amount in
controversy is determinative.
III. Analysis
Holmes has filed, in addition to her original complaint, three amended
complaints, each such complaint being met with a motion to dismiss. In each
instance, many of her claims were dismissed. There is no need to repeat the
reasoning of each dismissal other than to say that the claims were dismissed for
failure to state a claim or the waiver of such claim by other claims therein made.
The long and short of the previous court’s opinions is that Holmes’s properly pled
and thus surviving claims are for breach of various warranties and a breach of the
Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”).
The question is what amount has been placed into controversy by such
properly pled claims. Plaintiff did include in her complaints a statement that her
action involved a sum in excess of $75,000 exclusive of interests and costs. Also,
Defendants did not challenge this assertion. However, “[t]he jurisdiction of a court
over the subject matter of a claim involves the court’s competency to consider a

3

The complaint and other pleadings do not sufficiently plead the citizenship of the defendants in
that nowhere does the state of incorporation of each defendant appear. Regardless, for the
purpose of this opinion, the parties’ position that they are diverse is assumed to be correct.
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given type of case and cannot be waived or otherwise conferred upon the court by
the parties.” Jackson v. Seaboard Coast Line R. Co. , 678 F.2d 992, 1000 (11th Cir.
1982) (footnote omitted).
This Court must determine from the evidence and submissions of the parties
what is possible for Holmes to recover. Holmes argues that she is entitled to
punitive and emotional distress damages. However, there was never a properly pled
claim or cause of action in her complaints that would support punitive damages.
The question, then is whether Holmes ever properly pled a claim from which
she could possibly recover emotional distress damages when the property in
question is investment or commercial property. The Alabama Supreme Court has
stated that “[a]n award of damages for mental anguish generally is not allowed in
breach-of-contract actions in Alabama.” Bowers v. Wal-Mart Stores, Inc., 827 So. 2d
63, 68 (Ala. 2001). There are, however, exceptions to this rule. For instance,
“where the contractual duty or obligation is so coupled with matters of mental
concern or solicitude, or with the feelings of the party to whom the duty is owed,
that a breach of that duty will necessarily or reasonably result in mental anguish or
suffering, it is just that damages therefor be taken into consideration and awarded.”
Id. at 69.

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Recovery of emotional distress damages is allowed in such cases “because it
is highly foreseeable that egregious breaches of certain contracts—involving one’s
home or deceased loved one, for example—will result in significant emotional
distress. The contractual duties imposed by these contracts are so sensitive that a
breach will necessarily and foreseeably result in mental anguish.” Ruiz de Molina v.
Merritt & Furman Ins. Agency, Inc., 207 F.3d 1351, 1359–60 (11th Cir. 2000)
(citations omitted). There simply is no basis to believe that under the facts of this
case Holmes would be entitled to recover emotional distress damages. This is a
breach of warranty case involving investment property. See, e.g., Barko Hydraulics,
LLC v. Shepherd, 167 So. 3d 304, 312 (Ala. 2014). Holmes bought the property out
of foreclosure intending to renovate and flip it for a profit. Her potentially
recoverable damages are about $40,000. Plaintiff has failed to demonstrate the
amount-in-controversy requirement to show diversity jurisdiction, and thus this
matter, including any counterclaims, is due to be dismissed for want of jurisdiction.
IV. Conclusion
For the above reasons, this matter is due to be DISMISSED. As Defendants
failed to raise the issue of subject matter jurisdiction even though it could have
been raised at the time of filing of the original complaint, each party will be made to

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bear its own costs. An Order consistent with this opinion will be entered
simultaneously.
DONE and ORDERED on December 13, 2016.

_____________________________
L. Scott Coogler
United States District Judge
186289

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