Bush v. Winn Dixie Montgomery LLC

Filing 10

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 8/31/15. (SAC )

FILED
2015 Aug-31 PM 04:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
KAREN BUSH,
Plaintiff,
v.
WINN DIXIE MONTGOMERY, LLC,
Defendant.

}
}
}
}
}
}
}
}
}

CIVIL ACTION NO.
2:15-cv-1133-WMA

MEMORANDUM OPINION
Plaintiff, Karen Bush (“Bush”), has moved to remand her above
entitled action to the Circuit Court of Jefferson County (Bessemer
Division), from which it was removed by defendant, Winn Dixie
Montgomery, LLC (“Winn Dixie”). The notice of removal invokes this
court’s

original

jurisdiction

pursuant

to

28

U.S.C.

§

1332,

claiming that the parties are diverse and that the amount in
controversy exceeds $75,000, exclusive of interest and costs. The
question before the court, however, is not whether the requisites
for § 1332 jurisdiction exist, but whether the removal was timely
under 28 U.S.C. § 1446(b).
Winn Dixie was served with the complaint on July 21, 2014. It
did not remove until July 7, 2015, nearly a year later, when it was
bumping up on the one-year limitation on removal provided by 28
U.S.C. § 1446(c). It attempts to justify its delay by asserting in
its notice of removal that it only learned that Bush was seeking
more than $75,000 when she failed to respond to its request made in
state court on May 28, 2015, for an admission that “[p]laintiffs
1

[sic]

seek

damages

in

this

action

in

excess

of

$75,000.00,

exclusive of costs and interest.” Winn Dixie offers no explanation
for its nine month wait to request the said admission.
Although Bush’s complaint contained no ad damnum clause, it is
impossible for this court to believe that in today’s world Winn
Dixie, a sophisticated business entity, believed that the amount
being sought by Bush was less than $75,000 or was so speculative
that clarification was needed. Most Alabama defendants and federal
judges, including this one, are not guessing or speculating when
they recognize the obvious from the complaint itself, based on
their experience, intelligence, and common sense. All of this will
be discussed infra.
Not too many years ago, the fact that a complaint filed in an
Alabama court contained no ad damnum would have been an invitation
for a defendant to do exactly what Winn Dixie did here. But,
because

federal

judges

in

Alabama

in

that

earlier

era

were

routinely remanding diversity cases for lack of a clear appearance
of the jurisdictional amount in the state court complaint, the
Eleventh Circuit took corrective steps. That court, which binds
this court and every other Alabama federal court, has finally
acknowledged the self-evident, namely, that a plaintiff like Bush,
who claims to have sustained a very substantial personal injury at
the hands of a defendant and who charges that defendant with
wantonness and who seeks to recover for pain, suffering, and mental
anguish, and seeks punitive damages, is realistically hoping to
recover more than $75,000. This is no more than a recognition of
2

verdict inflation since the jurisdictional amount was raised from
$10,000 to $50,000 in 1988, and from $50,000 to $75,000 in 1996,
and of the Congressional intent when it enacted § 1332 to provide
a federal forum for defendants that are faced with major financial
exposure if they proceed to trial in the state forum chosen by a
resident plaintiff. This new opening of the federal courts of
Alabama to non-resident defendants has taken away the artificial
and unfair obstacle to removal erected by Alabama plaintiffs,
namely, the expedient of leaving out an ad damnum clause. This
court has since 2010 reversed course and held that a plaintiff like
Bush

who

wants

to

stay

in

her

chosen

forum

must

formally

acknowledge a $74,999.99 limitation on any recovery. See Smith v.
State Farm Casualty Co., 868 F. Supp. 2d 1333 (N.D. Ala. 2012). It
was in Smith v. State Farm that this court coined the phrase “THAT
WAS THEN. THIS IS NOW.”
This revolutionary proposition was thoroughly and persuasively
expounded

by

the

Eleventh

Circuit

in

Roe

v.

Michelin

North

American, Inc., 613 F.3d 1058 (2010). The court affirmed the
opinion of district judge Thompson of the Middle District of
Alabama in Roe v. Michelin North American, Inc., 637 F. Supp. 2d
995 (2009), and held:
Michelin's notice of removal states that it is facially
apparent from Roe's complaint that the case, more likely
than not, exceeds the $75,000 amount-in-controversy
requirement. Roe argues it is not for the district court
to determine whether the claim likely exceeds $75,000, if
the plaintiff has not explicitly stated the amount of
damages he seeks.

3

If a plaintiff makes “an unspecified demand for damages
in state court, a removing defendant must prove by a
preponderance of the evidence that the amount in
controversy more likely than not exceeds the . . .
jurisdictional requirement.” Tapscott v. MS Dealer
Service Corp., 77 F.3d 1353, 1357 (11th Cir. 1996),
abrogated on other grounds by Cohen v. Office Depot,
Inc., 204 F.3d 1069 (11th Cir. 2000). In some cases, this
burden requires the removing defendant to provide
additional evidence demonstrating that removal is proper.
See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d
744 (11th Cir. 2010). In other cases, however, it may be
“facially apparent” from the pleading itself that the
amount in controversy exceeds the jurisdictional minimum,
even when “the complaint does not claim a specific amount
of damages.” See id. at 754 (quoting Williams v. Best Buy
Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)).
* * *
Eleventh Circuit precedent permits district courts to
make “reasonable deductions, reasonable inferences, or
other reasonable extrapolations” from the pleadings to
determine whether it is facially apparent that a case is
removable. See id. at 754. Put simply, a district court
need not “suspend reality or shelve common sense in
determining whether the face of a complaint . . .
establishes the jurisdictional amount.” See id. at 770
(quoting Roe v. Michelin N. Am., Inc., 637 F. Supp. 2d
995, 999 (M.D. Ala. 2009)); see also Williams, 269 F.3d
at 1319 (11th Cir. 2001) (allowing district courts to
consider whether it is “facially apparent” from a
complaint that the amount in controversy is met).
Instead, courts may use their judicial experience and
common sense in determining whether the case stated in a
complaint meets federal jurisdictional requirements. This
approach is consistent with those of other circuits.
* * *
The issue arises with some frequency in the Fifth
Circuit, because “plaintiffs in Louisiana state courts,
by law, may not specify the numerical value of claimed
damages.” Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880,
882 (5th Cir. 2000) (citing La. Code Civ. Proc. art.
893).

4

Like the Eleventh Circuit, the Fifth Circuit requires
that when the complaint omits a specific allegation as to
the damage amount, “the removing defendant must prove by
a preponderance of the evidence that the amount in
controversy is adequate.” See Felton v. Greyhound Lines,
Inc., 324 F.3d 771, 773 (5th Cir. 2003) (quotations
omitted). The defendant may meet its burden “by
establishing that it is ‘facially apparent’ that the
claims probably exceed $75,000.” Id.
In Luckett v. Delta Airlines, Inc., for example, the
Fifth Circuit held that a complaint sufficiently
established federal diversity jurisdiction in a case
removed from Louisiana state court, despite the lack of
a specific damage request. 171 F.3d 295, 298 (5th Cir.
1999). The Fifth Circuit “found [the] complaint's
allegations of property damage, travel expenses, [an]
emergency ambulance trip, six days in the hospital, pain
and suffering, humiliation, and a temporary inability to
do housework . . . combined to meet the jurisdictional
requirement even though no amount of damages was pled.”
Felton, 324 F.3d at 774 (summarizing the holding in
Luckett); Luckett, 171 F.3d at 298 (“Reading the face of
the complaint, the district court did not err in finding
that Luckett's claims exceeded $75,000.”).
Similarly, in Gebbia, the Fifth Circuit held that a
complaint lacking a specified damage request met the
amount-in-controversy requirement. The court explained
that the plaintiff's allegations—that her slip and fall
resulted in severe physical injury, lost wages, lost
enjoyment of life, and pain and suffering—appeared to
comprise a claim worth more than $75,000. 233 F.3d at 883
(affirming the district court's denial of the plaintiff's
motion to remand to Louisiana state court).
* * *
For instance, a plaintiff could “defeat federal
jurisdiction simply by drafting his pleadings in a way
that did not specify an approximate value of the claims
and thereafter provide the defendant with no details on
the value of the claim.” Id. Plaintiffs skilled in this
form of artful pleading could, with this “trick,” simply
“make federal jurisdiction disappear.” See id. Indeed, if
courts were to rely solely on a plaintiff's damage
statements, as Roe suggests, it is difficult to imagine
a punitive damages suit that could be removed against a
5

plaintiff's wishes. Both policy and precedent counsel
against rewarding such obfuscating tactics.
* * *
District Judge Thompson independently appraised Roe's
claims and concluded that they likely met the
jurisdictional amount in controversy. We review this
determination de novo, applying our own judicial
experience and common sense. See Williams, 269 F.3d at
1318. After carefully considering the complaint, we agree
with Judge Thompson's conclusion that the value of Roe's
claims more likely than not exceeds $75,000. Even Roe
does not argue that Judge Thompson's appraisal of the
worth of the claims was inaccurate; rather, Roe contends
only that the district judge lacked the power to engage
in that analysis in the first place. As Part II.A.
explains, however, the district court did not overstep by
relying on its judicial experience and common sense to
determine whether Roe's claims likely exceed $75,000.
Roe, 615 F.3d at 1060-65 (emphasis added) (footnotes omitted).
The eyes of this court were opened by Roe v. Michelin, as is
reflected

in

this

court’s

subsequent

opinions.

Other

Alabama

federal courts agree with this court, that is, with the notable
exceptions of two fine judges in the Southern District of Alabama.
In Lambeth v. Peterbilt Motors Co., No. 12-169-WS-N, 2012 WL
1712692 (S.D. Ala. May 15, 2012) and Earl v. Diebold, Inc., No. 14498-KD-C, 2015 WL 789763 (S.D. Ala. Feb. 25, 2015), Judges Dubose
and Steele remanded cases which had been removed based on the
defendants’ allegations that the jurisdictional amount for a § 1332
removal could be discerned from the face of the complaints that, as
usual, lacked ad damnum clauses. This court respectfully disagrees
with his learned colleagues in the Southern District and would have
denied remand and kept both cases. It would be interesting to know

6

whether after the two cases were remanded the defendants got a
confession that plaintiff sought more than $75,000 and thereupon
removed again. If that happened, there was a considerable waste of
judicial resources.
Winn Dixie, of course, relies on Lambert and Earl and says
that it was precluded from speculating about the indeterminate
jurisdictional amount, so that in order to remove it needed the
assurance of an admission. As this court held in Smith v. State
Farm, the existence of the jurisdictional amount in a case like
this one is not speculative. The complaint itself is the wake-up
call.

The

defendant

cannot

snooze

through

it.

The

30

day

opportunity to remove provided by 28 U.S.C. § 1446(b)was triggered
by the complaint. If a removing defendant in such a case is so
unfortunate as to have its case assigned to a judge who reads Roe
v. Michelin as do the two judges in the Southern District, it can,
of course, litigate in the state court and bide its time until the
plaintiff

in

his

opening

statement

to

the

jury

itemizes

his

damages, putting on the blackboard something like this:
Medical expenses

$40,000

Pain and suffering

$100,000

Punitive damages

$2,000,000

Total

$2,140,000

According to Winn Dixie’s reasoning if this happened it could
immediately file its notice of removal, saying that it learned for
the first time what had previously been a closely guarded secret

7

and something that could not have been ascertained from the face of
the

complaint

upon

an

exercise

of

good

judgment,

after

due

rumination and cogitation.
As

recently

as

August

20,

2015,

this

court

denied

a

plaintiff’s motion to remand a diversity case removed within 30
days from its filing in state court. Geodesic Consulting, LLC v.
BBVA USA Bancshares, Inc., No. 2:15-cv-1225-WMA, 2015 WL 4985474
(N.D. Ala. 2015). The complaint there was enigmatic with respect to
damages in that it lacked any quantification of damages, but the
defendant there was alert to the lessons in Roe v. Michelin and in
Smith v. State Farm. It did not snooze. It succeeded in getting
into federal court.
This court is not the only court that has read Roe v. Michelin
as this court reads it. See Cowan v. Genesco, Inc., No. 3:14-cv261-J-34JRK, 2014 WL 3417656 (M.D. Fla. July 14, 2014) (in which
Judge Howard quotes from Smith v. State Farm); and Seckel v.
Travelers Home & Marine Ins. Co., No. 4:12-cv-4163-KOB, 2013 WL
360421 (N.D. Ala. Jan. 29, 2013) (in which Judge Bowdre quotes from
Smith v. State Farm).
CONCLUSION
This court can find no logical reason why it was not just as
apparent to Winn Dixie when it first read this complaint, as it now
is, that the

amount

in

controversy

exceeds

$75,000

when

the

complaint was filed. Because the removal occurred more than 30 days
after the jurisdictional amount was clearly apparent, the motion to

8

remand will be granted.
DONE this 31st day of August, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

9