Geodesic Consulting LLC v. BBVA USA Bancshares Inc

Filing 7

MEMORANDUM OPINION AND ORDER re 4 MOTION to Remand- For the reasons noted within, the motion is DENIED. The undersigned to whom this case is assigned does not employ the "Uniform Initial Order" found on the court's website; see within for further instruction. Signed by Judge William M Acker, Jr on 8/20/15. (SAC )

FILED
2015 Aug-20 PM 04:00
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GEODESIC CONSULTING, LLC,
Plaintiff,
v.
BBVA USA BANCSHARES, INC.,
Defendant.

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CIVIL ACTION NO.
2:15-cv-1225-WMA

MEMORANDUM OPINION AND ORDER
Before the court is a motion to remand (Doc. 4) filed by
plaintiff Geodesic Consulting, LLC (“Geodesic”). For the reasons
stated below, the motion will be denied.
BACKGROUND
Geodesic initiated this action against defendant BBVA USA
Bancshares, Inc. (“BBVA”), in the Circuit Court of Jefferson
County, Alabama. (Doc. 1-1 at 3). BBVA was served with the summons
and complaint on June 29, 2015. (Doc. 1-1 at 26). In the complaint,
Geodesic alleges

that

it

contracted

with

BBVA

to

provide

it

information and technology services. The contract required Geodesic
to relocate a key employee from Spain to Birmingham. (Doc. 1-1 at
3-4, ¶ 4). Geodesic alleges that it performed under the contract,
but that BBVA paid Geodesic $35,840 less than it was appropriately
billed. (Doc. 1-1 at 5, ¶ 8). Geodesic also alleges that BBVA
misrepresented the nature and length of the project. (Doc. 1-1 at
7, ¶ 25).
Geodesic presents five causes of action: common counts, breach
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of contract, tortious breach of contract, suppression, and fraud.
It seeks the following damages: the $35,840 that BBVA did not pay,
compensatory damages for the costs of relocating the employee, and
punitive damages for BBVA’s alleged fraudulent misrepresentation.
BBVA removed the action on July 22, 2015, asserting this court’s
diversity jurisdiction as a basis for removal. (Doc. 1). Geodesic
moved to remand the action on August 10, 2015, arguing that BBVA
has not demonstrated satisfaction of the amount-in-controversy
requirement in 28 U.S.C. § 1332. (Doc. 4).
DISCUSSION
Ordinarily, to ascertain the amount in controversy of an
action removed based on diversity, “the sum demanded in good faith
in the initial pleading shall be deemed to be the amount in
controversy.” 28 U.S.C. § 1446(c)(2). But if the complaint does not
contain an ad damnum clause, as this one does not, “the notice of
removal

may

assert

the

amount

in

controversy.”

28

U.S.C.

§

1446(c)(2)(a). In such a case, removal is proper “if the district
court finds, by the preponderance of the evidence, that the amount
in controversy exceeds [$75,000].” 28 U.S.C. § 1446(c)(2)(B).
Geodesic

argues

that

BBVA

has

failed

to

meet

this

preponderance standard, hopefully citing a 2007 decision of this
very court, Constant v. International House of Pancakes, 487 F.
Supp. 2d 1308, 1310-11 (N.D. Ala. 2007). In Constant, this court
interpreted Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir.
2007), to mean that removing defendants cannot carry their burdens

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with “rank speculation” and “unabashed guesswork” but must present
competent evidence of the amount in controversy. Constant, 487 F.
Supp. 2d at 1310-11 (quoting Lowery, 483 F.3d at 1211, 1215 n.67).
But, as this court much more recently said in Smith v. State Farm
Fire & Casualty Co., 868 F. Supp. 2d 1333, 1335 (N.D. Ala. 2012),
“That was then. This is now.” Now, as a result of the amendments to
§ 1446 and Eleventh Circuit decisions such as Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010), courts are
permitted,

and

indeed

required,

to

approach

the

amount-in-

controversy question by making “reasonable deductions, reasonable
inferences, or other reasonable extrapolations.” “[W]hen a district
court can determine, relying on its judicial experience and common
sense,

that

a

requiremen[t],

claim

it

need

satisfies
not

give

the

amount-in-controversy

credence

to

a

plaintiff's

representation that the value of the claim is indeterminate.” Roe
v. Michelin N. Am., Inc., 613 F.3d 1058, 1064 (11th Cir. 2010). In
light

of

these

and

similar

exhortations,

this

court

readily

concluded in Smith that plaintiffs “who want to pursue claims
against diverse parties in a state court seeking unspecified
damages of various kinds, such as punitive damages . . ., must in
their complaint formally and expressly disclaim any entitlement to
more than $74,999.99, and categorically state that plaintiff will
never accept more.” 868 F. Supp. 2d at 1335.
This court today adheres to its holding in Smith. In light of
Geodesic’s claims for $35,840 in contract damages, additional

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compensatory damages for the cost of the trans-continental move of
the key employee, and a fraud claim seeking punitive damages, the
court need not overuse its common sense to conclude that plaintiff
places more than $75,000 in controversy. Because Geodesic has not
disclaimed entitlement to any amount over $74,999.99, its motion to
remand (Doc. 4) is DENIED.
THE UNDERSIGNED TO WHOM THIS CASE IS ASSIGNED DOES NOT EMPLOY
THE “UNIFORM INITIAL ORDER” FOUND ON THE COURT’S WEBSITE.
An answer having been filed, the parties are hereby reminded
that the case is governed by the Federal Rules of Civil Procedure.
The parties should pay particular attention to Fed. R. Civ. P. 7.1,
26, and 16, and should with their initial report notify the court
if the case should be evaluated for proceeding upon any of the
tracks provided by this court's Alternative Dispute Resolution
Plan.
DONE this 20th day of August, 2015.

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

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