Snellgrove v. Goodyear Tire & Rubber Company, The et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 1/22/2014. (JLC)
2014 Jan-22 PM 12:27
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THE GOODYEAR TIRE &
RUBBER COMPANY, et al,
) Case No.: 4:13-CV-2062-VEH
On July 2, 2012, this civil action was filed in the Circuit Court of Etowah
County, Alabama, by the plaintiff, Michael Snellgrove, against the defendant, The
Goodyear Tire & Rubber Company (“Goodyear”). (Doc. 1 at 1; doc. 6 at 3; doc. 6-2
The original action sought only workers’ compensation benefits from
Goodyear. (Doc. 1 at 1; doc. 6 at 3; doc. 6-2 at 3).
On August 26, 2013, the plaintiff filed a “First Amended and Restated
Complaint” which, in addition to restating the original workers’ compensation claim
against Goodyear (Count One), added two new defendants, Liberty Mutual Group,
Inc. (“Liberty”), and Helmsman Management Services, LLC (“Helmsman”). (Doc.
1 at 11). The motion to remand states that Liberty is the workers’ compensation
insurer for Goodyear and that Helmsman is a third party administrator who
administers workers’ compensation insurance for Goodyear and Liberty Mutual.
(Doc. 6 at 4). Against these new defendants, the complaint added a state law claim
of outrage (Count Two). (Doc. 1 at 13). On October 22, 2013, the state court
severed the workers’ compensation claims against Goodyear from the outrage claims
against the other defendants and assigned them to separate cases. (Doc. 1 at 18).1
The latter claims were assigned state court case number CV-2012-900375.01. (Doc.
1 at 2). That case was removed to this court on November 12, 2013, on the basis of
diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1).
The case is before the court on the plaintiff’s motion to remand, filed on
December 2, 2013. (Doc. 6). Pursuant to this court’s uniform scheduling order, the
“opponent’s responsive brief shall be filed no later than fourteen (14) calendar days
thereafter.” (Doc. 2 at 23). Albeit late, the defendants filed their response to the
motion on January 2, 2014. (Doc. 9). Further, the defendants have set out the basis
for removal in their Notice of Removal. (Doc. 1). The court will consider the
representations in that document as well in ruling on the motion. For the reasons
stated herein, the motion will be GRANTED, and this case REMANDED to the
The motion to remand states that the cases were severed on September 30, 2013. (Doc. 6
at 4). However, the court’s order, attached to the notice of removal at document 1 pages 18 and
21, reflects that it was signed on October 22, 2013. (Doc. 1 at 18, 21).
Circuit Court Etowah County, Alabama.
“Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). For removal to be proper, the court must have
subject-matter jurisdiction in the case. “Only state-court actions that originally could
have been filed in federal court may be removed to federal court by the Defendant.”
Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). In addition, the removal
statute must be strictly construed against removal, and any doubts should be resolved
in favor of remand. See, City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310,
1313 (11th Cir. 2012) (“[b]ecause removal jurisdiction raises significant federalism
concerns, federal courts are directed to construe removal statutes strictly. Indeed, all
doubts about jurisdiction should be resolved in favor of remand to state court.”)
“In removal cases, the burden is on the party who sought removal to
demonstrate that federal jurisdiction exists.” Friedman v. New York Life Ins. Co., 410
F.3d 1350, 1353 (11th Cir. 2005) (citation omitted); Williams v. Best Buy Co., 269
F.3d 1316, 1319 (11th Cir.2001).
That burden goes not only to the issue of federal jurisdiction, but also to
questions of compliance with statutes governing the exercise of the right
of removal. Albonetti v. GAF Corporation-Chemical Group, 520
F.Supp. 825, 827 (S.D. Texas 1981); Jennings Clothiers of Ft. Dodge,
Inc. v. U.S. Fidelity & Guaranty Co., 496 F.Supp. 1254, 1255 (D.Iowa
1980); Fort v. Ralston Purina Company, 452 F.Supp. 241, 242
Parker v. Brown, 570 F.Supp. 640, 642 (D.C. Ohio, 1983).
The plaintiff makes three arguments why this case should be remanded. First,
he argues that this case “arises under the Alabama Workers’ Compensation Act,” and
so removal is prohibited by 28 U.S.C. § 1445(c). Second, he argues that the notice
of removal was untimely under 28 U.S.C. § 1446(b). Finally, the plaintiff argues that
this court does not have subject matter jurisdiction pursuant to 28 U.S.C. § 1332
because the defendants have failed to demonstrate that this case has the requisite
amount in controversy.2 The court need address only this last argument, as it finds
that the amount in controversy has not been met.
If, as in this case, 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
The defendants claim that this court has jurisdiction over this matter pursuant to 28
U.S.C. § 1332, which provides in pertinent part: “The district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between . . . citizens of different States.” It is
undisputed that diversity of citizenship exists in this case.
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). The Eleventh Circuit has stated:
We reiterate that the burden of proving jurisdiction lies with the
removing defendant. A conclusory allegation in the notice of removal
that the jurisdictional amount is satisfied, without setting forth the
underlying facts supporting such an assertion, is insufficient to meet the
defendant's burden. See Laughlin v. Kmart Corp., 50 F.3d 871, 873
(10th Cir.1995); Allen, 63 F.3d at 1335; Gaus v. Miles, 980 F.2d 564,
567 (9th Cir.1992); see also Burns v. Windsor Ins. Co., 31 F.3d 1092,
1097 (11th Cir.1994) (concluding that removing defendant did not meet
burden of proving amount in controversy where it offered “nothing more
than conclusory allegations”); Gaitor v. Peninsular & Occidental S.S.
Co., 287 F.2d 252, 255 (5th Cir.1961) (stating that removing defendant
must make “affirmative showing ... of all the requisite factors of
Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319-20 (11th Cir. 2001).
“In some cases, this burden requires the removing defendant to provide
additional evidence demonstrating that removal is proper.” Roe v. Michelin N. Am.,
Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (footnotes omitted). When this method
is used, a removing defendant may rely on its own affidavits, declarations, or other
documentation to establish the amount in controversy. McGee v. Sentinel Offender
Servs., LLC, 719 F.3d 1236, 1241 (11th Cir. 2013) (citing Pretka v. Kolter City Plaza
II, Inc., 608 F.3d 744, 755 (11th Cir.2010)). However, “under any manner of proof,
the jurisdictional facts that support removal must be judged at the time of the
removal, and any post-petition affidavits are allowable only if relevant to that period
of time.” Sierminski v. Transouth Financial Corp., 216 F.3d 945, 949 (11th Cir.
The defendant is not always required to provide extrinsic evidence of the
amount in controversy. As the Eleventh Circuit has noted, sometimes
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
If a defendant alleges that removability is apparent from the face
of the complaint, the district court must evaluate whether the complaint
itself satisfies the defendant's jurisdictional burden. In making this
determination, the district court is not bound by the plaintiff's
representations regarding its claim, nor must it assume that the plaintiff
is in the best position to evaluate the amount of damages sought. Id. at
771. Indeed, in some cases, the defendant or the court itself may be
better-situated to accurately assess the amount in controversy. See id.
(explaining that “sometimes the defendant's evidence on the value of the
claims will be even better than the plaintiff's evidence,” and that a court
may use its judgment to determine “which party has better access to the
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
Roe, 613 F.3d at 1061-62.
The defendants argue that “[h]ere, judicial experience and common sense
dictate that the amount in controversy put forth in [p]laintiff’s complaint easily
exceeds $75,000.” (Doc. 1 at 6). The outrage count alleges that
– “Liberty . . . and Helmsman were wrongfully and unnecessarily
denying necessary medical treatment for the [p]laintiff’s right shoulder
– “Liberty . . . and Helmsman unnecessarily used the ‘utilization review
process’ to deny medical treatment to . . . patients whose care is directed
by these [d]efendants;” and
– “[t]hese [d]efendants have also intentionally failed to pay temporary
total disability payments to the [p]laintiff despite their knowledge that
he has not reached maximum medical improvement and such benefits
(Doc. 1 at 14). The First Amended Complaint states that the treatment alleged to
have been wrongfully denied included “surgery for a full thickness tear to [the
plaintiff’s] rotator cuff on his right shoulder.” (Doc. 1 at 14). It alleges that the
plaintiff “suffers from debilitating pain,” (doc. 1 at 12) has suffered “a permanent
impairment and disability (doc. 1 at 12), and that the defendants have failed to pay for
temporary total disability benefits, surgery, and physical therapy (doc. 1 at 13). The
complaint claims that the actions of the defendants have “caused and will continue
to cause extreme financial hardships to the [p]laintiff.” (Doc. 1 at 14). It also alleges
that the defendants’ actions have caused the plaintiff “to suffer emotional distress so
severe that no reasonable person could be expected to endure it.” (Doc. 1 at 15).
While the plaintiff seeks compensatory and punitive damages (doc. 1 at 16), he
demands judgment only “in an amount to be determined by a jury.” (Doc. 1 at 16).
This case is the classic “fact free” case dealt with in Lowery. Here, while the
court’s experience and common sense certainly informs it that surgery, physical
therapy, and disability payments can be expensive, for it to say, based only on the
bare allegations of the complaint, that the costs of each of them, or all three
combined, exceeds $75,000 would “amount to unabashed guesswork, and such
speculation is frowned upon.” Lowery v. Alabama Power Co., 483 F.3d 1184, 121011 (11th Cir. 2007). The additional allegations of “pain,” “financial hardship,” and
“emotional distress,” also do not help the court in the absence of more specifics.
Finally, the court cannot say that the claims for punitive damages, without a clear
picture of the dollar value of compensatory damages, or more facts describing the
defendants’ alleged conduct, will make this case worth more than $75,000.
“[W]ithout facts or specific allegations, the amount in controversy [can] be ‘divined
[only] by looking at the stars’—only through speculation—and that is impermissible.”
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 753-54 (11th Cir. 2010) (quoting
Lowery, 483 F.3d at 1209); cf. Williams, 269 F.3d at 1318, 1320 (allegations that the
plaintiff tripped over a curb and suffered permanent physical and mental injuries, that
she incurred substantial medical expenses, that she suffered lost wages, that she
experienced a diminished earning capacity, and that she would continue to suffer
these damages in the future, along with a demand for both compensatory and punitive
damages, did not render it facially apparent that the amount in controversy exceeded
A different scenario is presented
when a removing defendant makes specific factual allegations
establishing jurisdiction and can support them (if challenged by the
plaintiff or the court) with evidence combined with reasonable
deductions, reasonable inferences, or other reasonable extrapolations.
That kind of reasoning is not akin to conjecture, speculation, or star
Pretka, 608 F.3d at 754. In their notice of removal, the defendants state that, in
addition to the allegations in the complaint, they “will demonstrate that the amount
in controversy is satisfied . . . through additional evidence.” (Doc. 1 at 6). However,
the only “evidence” they provide is in the form of citations, without discussion, to
verdicts in two Alabama cases which also dealt with outrage claims in the context of
a wrongful denial of medical treatment under the Alabama Workers’ Compensation
Act. (Doc. 1 at 6) (citing Travelers Indem. Co. of Illinois v. Griner, 809 So. 2d 808
(Ala. 2001); Cont'l Cas. Ins. Co. v. McDonald, 567 So. 2d 1208 (Ala. 1990)).
Judge Steele, in the Middle District of Alabama, faced a similar tactic in Hill
v. Toys "R" Us, Inc., No. CIV.A.10-0404-WS-B, 2010 WL 3834532 (S.D. Ala. Sept.
24, 2010). In Hill, the plaintiff alleged that she
was an invitee in the defendant's store when a “large and heavy box fell
on her.” The complaint alleges that the plaintiff “suffered injury to her
upper back, neck, right arm and head”; “was bruised and contused and
otherwise injured and damaged”; “has experienced and continues to
experience pain and suffering”; “has experienced and continues to
experience emotional distress and mental anguish”; and “has incurred
and continues to incur doctor, hospital, drug and rehabilitation
expenses.” The complaint demands compensatory and punitive damages
in an amount unstated other than as exceeding the state court's $10,000
Hill, 2010 WL 3834532 at *1. The court first determined that there was “no way to
determine from the complaint whether the plaintiff has been injured so badly as to
place over $75,000 in controversy.” Id. The court then wrote:
Looking to the notice of removal, the Court finds only a single
basis for the defendant's position that the amount in controversy
requirement is satisfied: a “nationwide search” revealed 16 jury verdicts
exceeding $75,000 in cases involving maintenance of a defendant's
premises and resulting personal injuries. The defendant's only
“evidence” is counsel's affidavit that, based on his research into recent
verdicts and settlement agreements, he believes the amount in
controversy exceeds $75,000.
In Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir.2007),
the removing defendant under the Class Action Fairness Act noted that
“plaintiffs in recent mass tort actions in Alabama had received either
jury verdicts or settlements for greater than” the jurisdictional amount.
Id. at 1189. The Court rejected such evidence because it had not come
from the plaintiffs, but it went on to “question whether such general
evidence is ever of much use in establishing the value of claims in any
one particular suit.” Id. at 1221. Other verdicts are certainly inadequate
to carry a removing defendant's burden when the defendant fails to
provide details about the facts of the other cases, or when there is no
“specific detail about the present action,” or both. Id. In such a situation,
there is insufficient information to allow a comparison between the other
cases and the removed case, and thus a court cannot “possibly ascertain
how similar the current action is to those the defendants cite.” Id.; see
also Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 753 (11th
Cir.2010) (the Lowery defendants failed because they “failed to explain
the facts of those other tort cases or link them to the facts of the Lowery
case”); cf. Federated Mutual Insurance Co. v. McKinnon Motors, LLC,
329 F.3d 805, 809 (11th Cir.2003) (“[M]ere citation to what has
happened in the past does nothing to overcome the indeterminate and
speculative nature of [the plaintiff's] assertion” that the amount in
controversy exceeds $75,000).
Assuming without deciding that Lowery leaves the door open for
a removing defendant to rely on (or solely on) awards in other cases, the
Court has been provided insufficient information to allow it to ascertain
how similar this action is to those. Without that showing of similarity,
the other cases cannot support the inference that the amount in
controversy here exceeds $75,000.
At bottom, all the defendant can say is that, on occasion, shoppers
injured in stores have been awarded over $75,000. This is as
unobjectionable a proposition as it is unsurprising, but it says nothing
about whether this complaint, alleging that this plaintiff, injured on this
occasion in this (largely unknown) fashion, receiving these (largely
unknown) injuries and experiencing these (largely unknown) damages,
places more than $75,000 in controversy in this case. Given the opaque
complaint in this case and the superficial description of other cases, the
defendant offers not “reasonable extrapolation” but only “speculation,”
and the amount in controversy cannot be shown by the latter. Pretka,
807 F.3d at 753–54.
Id. at 2-3 (emphasis in original) (footnotes omitted).
Similar to Hill, in this case, other than to allege that the cited cases both
involve outrage claims in the context of failure to pay workers’ compensation medical
benefits, the defendants make no attempt to demonstrate similarities to the instant
case. Indeed, without more factual allegations in the complaint, it is unlikely that any
similarities could be shown. The cases do not help carry the defendants’ burden.
In the notice of removal, the defendants cite Love v. N. Tool & Equip. Co., Inc.,
08-20453-CIV, 2008 WL 2955124 (S.D. Fla. Aug. 1, 2008), and Butler v. Charter
Commc'ns, Inc., 755 F. Supp. 2d 1192 (M.D. Ala. 2010), again without discussion,
for the proposition that “[c]ourts in the Eleventh Circuit have considered a plaintiff’s
claims for mental anguish or emotional distress in determining the amount in
controversy.” (Doc. 1 at 6).
An examination of the facts in Love reveals that Love does not support the
defendants’ position. In Love, the court wrote:
Northern Tool asserts that it has demonstrated by a preponderance
of the evidence that the amount in controversy exceeds $75,000.00. The
evidence Northern Tool refers to is Love's $70,000.00 settlement offer,
an affidavit from Northern Tool's Vice President of Human Resources,
and its own unsupported calculations of Love's damages. The affidavit
attached to the Notice of Removal states that, during Love's last full year
of employment as a Store Manager, she received total gross wages of
$83,669.72 ($47,985.98 in base salary and $35,683.74 in bonus
earnings). The affidavit further states that the Store Manager who
replaced Love received bonus payments equaling $11,609.89 during
2007 and $5,977.89 to date in 2008.
This evidence, however, does not provide me with any
information on which I can calculate Love's attorneys' fees, emotional
distress damages, and punitive damages. The only damages I can
calculate with any degree of certainty are Love's back pay and front pay,
which are not enough to support federal diversity jurisdiction.
Love, 2008 WL 2955124, at *2. In examining the value of the plaintiff’s emotional
distress claim, the court wrote:
Determining the value of Love's emotional distress claim is a
difficult task to undertake without a large amount of speculation.
Northern Tool suggests that I accept, for purposes of determining the
amount in controversy, that Love's emotional distress award will equal
her award for back pay based on her base salary alone, i.e., $27,999.00.
Northern Tool does not, however, offer any evidence or point to any
underlying facts that might support such an assertion. Instead, it cites to
cases where courts have awarded emotional distress damages well in
excess of Love's $27,999.00 in lost wages without comparing the factual
or legal claims made in those cases to Love's claims or explaining the
relevance of those awards to the issue at hand. Love, on the other hand,
notes that she has not undergone any psychological counseling or
medical attention that would make her emotional distress any more
significant than the garden variety discrimination claim. A plaintiff need
not, however, “introduce evidence of medical treatment to recover for
emotional distress ... under the FCRA.” Brown, 2005 WL 1126670, at
5 (citing Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1348-49
(11th Cir.2000)). Although Love may recover some damages for
emotional distress, there is no evidence before me to determine that
amount. Under these circumstances, I cannot divine some dollar amount
as emotional distress damages to aggregate to Love's back pay damages
so that Northern Tool can meet the jurisdictional threshold for federal
diversity jurisdiction. See Lowery, 483 F.3d at 1215 (instructing courts
not to speculate regarding the propriety of removal where the evidence
is insufficient to establish that removal was proper).
Id. at *5 (emphasis added). Similar to Love, here there is no evidence upon which
this court can base an award of emotional distress damages.3
The instant case is distinguishable from the defendants’ second cited case,
Butler. In that case, the court found the amount in controversy satisfied by copies
of records from the Macon County Revenue Commissioner's office indicating that the
plaintiff had suffered a property loss of approximately $110,000. Butler, 755 F.
Supp. 2d at 1196.
No evidence of the value of the plaintiff’s claims has been
produced in this case.
Finally, in the notice of removal, the defendant cites to and discusses Blackwell
v. Great American Financial Resources, Inc., 620 F. Supp. 2d 1289 (N.D. Ala. 2009)
(Blackburn, J.), a case decided in this district. (Doc. 1 at 7). In Blackwell, noting first
Notably, the Love court had before it evidence which allowed it to compute the value of
at least some of the plaintiff’s compensatory damages (back pay). Such evidence is lacking in
this case. Still, the court in Love declined to assume a similar amount of mental anguish
that “[t]he compensatory damages claimed in the First Amended Complaint . . . total
$23,172.28,” the court found that the plaintiff could constitutionally also be awarded
punitive damages of more than $51,827.72, bringing the amount in controversy to
more than $75,000. Blackwell, 620 F. Supp. 2d at 1291.
Stating that “it is the
constitutionally-permissible limits of punitive damages in a particular case that are
used to compute the jurisdictional amount-in-controversy requirement,” the court
[w]hen the punitive damages claims for what “may be awarded” are
considered in relation to both the compensatory damages claims and the
conduct alleged, a punitive award of slightly more than double the
compensatory damages claim would occasion an amount in controversy
that exceeds the jurisdictional minimum. Such an amount for punitive
damages is uncontroversially within the limits of the Due Process
Id. The court need not decide whether or not Blackwell is persuasive in its reasoning
because it is distinguishable on its facts. Unlike Blackwell, in the instant case there
is no stated amount of compensatory damages, nor is there evidence of same.
Without evidence of the compensatory damages at issue, this court cannot calculate
a constitutionally permissible amount of punitive damages which might be awarded.
The response to the motion to remand (document 9) provides no additional
support for the defendants’ position. Again, in that document, the defendants merely
argue that, because there is an outrage count which includes a request for punitive
damages, the amount in controversy must be more than the jurisdictional threshold.
(Doc. 9 at 13-17 (again citing to Roe v. Michelin N. Am., Inc., 613 F.3d 1058 (11th
Cir. 2010); Blackwell v. Great American Financial Resources, Inc., 620 F. Supp. 2d
1289 (N.D. Ala. 2009) (Blackburn, J.); Love v. N. Tool & Equip. Co., Inc., 08-20453CIV, 2008 WL 2955124 (S.D. Fla. Aug. 1, 2008); Butler v. Charter Commc'ns, Inc.,
755 F. Supp. 2d 1192 (M.D. Ala. 2010)). Once again, no facts are set out to assist the
court in its analysis.
Based on the foregoing, the court finds that the defendants have not carried
their burden of demonstrating the requisite amount in controversy by a preponderance
of the evidence. Accordingly, the motion to remand will be GRANTED, and this
case will be REMANDED to the Circuit Court of Etowah County, Alabama for
DONE and ORDERED this 22nd day of January, 2014.
VIRGINIA EMERSON HOPKINS
United States District Judge
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