Erby v. Pilgrim's Pride et al
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 6/30/2016. (JLC)
2016 Jun-30 PM 01:21
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
PILGRIM’S PRIDE and
) Case No.: 2:16-CV-0497-VEH
Plaintiff Merilyn Erby (“Ms. Erby”) initiated this action under the Alabama
Workers’ Compensation Act, see Ala. Code § 25-5-31 (setting forth employee’s right
of action for damages from injury “arising out of and in the course of his
employment”), in the Circuit Court of Marshall County on December 23, 2015. (Doc.
1 at 1 ¶ 1).1 Ms. Erby sued Defendants Pilgrim’s Pride (“Pilgrim’s”) and Sedgwick
Claims Management Services (“Sedgwick”). Id. On March 25, 2016, Sedgwick
removed Ms. Erby’s lawsuit to federal court with Pilgrim’s consent (Doc. 1 at 9 ¶ 23)
All page references to Doc. 1 correspond with the court’s CM/ECF numbering system.
on basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Doc. 1 at 3 ¶ 7).
Because of concerns about the validity of Defendants’ removal and the court’s
ability to exercise subject matter jurisdiction, it entered a show cause order (Doc.13)
on May 12, 2016. Defendants filed their response (Doc. 14) on May 26, 2016, and
Ms. Erby followed with her reply (Doc. 16) on June 13, 2016.
Under 28 U.S.C. § 1447(c), a plaintiff must move to remand a case within 30
days of its removal “on the basis of any defect other than lack of subject matter
jurisdiction.” Id. More than 30 days have elapsed since the removal of this action to
federal court. Ms. Erby did not move for remand. Nonetheless, federal courts are
courts of limited jurisdiction. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,
409 (11th Cir. 1999).
Consequently, a federal court must inquire into its subject matter jurisdiction
whenever it may be lacking. Id. at 410. Further, “if the trial judge remands because
the court ‘lacks subject matter jurisdiction,’ as specified in § 1447(c), his order is not
subject to review in th[e Eleventh Circuit] by appeal, mandamus, or otherwise.”
Harris v. Blue Cross/Blue Shield of Alabama, Inc., 951 F.2d 325, 327 (11th Cir.
1992). Therefore, the court will now sua sponte consider its subject matter
State Court Procedural Background
Sedgwick bases its removal upon several key procedural developments that it
represents to this court as having occurred in state court. The first of these is an
amended complaint filed by Ms. Erby on July 10, 2015, in which she added claims
for the tort of outrage and conspiracy to commit outrage. (Doc. 1 at 2 ¶ 2; id. at
The second of these is a Joint Motion To Sever (the “Joint Motion”) Ms. Erby’s
tort of outrage and conspiracy claims from her workers’ compensation count, filed by
Defendants on February 4, 2016. (Id. at 2 ¶ 3). Defendants’ Joint Motion (Doc. 1 at
157-162) seeks: (i) a severance pursuant to Rule 21 of the Alabama Rules of Civil
Procedure and (ii) an “instruct[ion] [to] the Clerk of the Court to docket a separate
case/civil action number under which Plaintiff’s tort of outrage and conspiracy claims
may proceed.” (Doc. 1 at 161).
The third of these is an order entered by the circuit court on February 26, 2016,
purportedly granting Defendants’ Joint Motion, which Sedgwick relies upon as the
triggering event permitting removal. (Doc. 1 at 2 ¶ 3). More specifically, in light of
these procedural facts, Sedgwick claims that Defendants’ Joint Motion was granted,
that it has only removed Ms. Erby’s severed tort of outrage and conspiracy claims to
federal court on the basis of diversity, and that it has left her workers’ compensation
claim pending in state court. (Doc. 1 at 8-9 ¶ 20); (see also Doc. 14-2 at 6 (“NOTICE
OF COURT ACTION . . . ORDER . . . Disposition: GRANTED”)).2
However, the written order attached to the vaguely-worded NOTICE OF
COURT ACTION neither mentions the Joint Motion nor assigns a new case number
to Ms. Erby’s tort of outrage and conspiracy claims. (Doc. 14-2 at 7-10). Instead, that
order retains the state court case number of CV-2015-900274.00 for all of Ms. Erby’s
claims, assigns Count I of her case to “Track S”, and indicates that this particular
claim for workers’ compensation benefits will be tried as a bench trial. (Doc. 1 at
182). This same order assigns the remainder of Ms. Erby’s case (i.e., Counts II and
III) to “Track X” and indicates that her tort of outrage and conspiracy claims will be
tried together to a jury. Id. Nowhere does this state court order express that
Defendants’ Joint Motion is granted or that Ms. Erby’s tort of outrage and conspiracy
claims have been severed and assigned a new case number.
An Order Remanding Ms. Erby’s Entire Case Is Required.
Based upon the above procedural history and this court’s understanding of the
record, while Defendants, pursuant to Rule 21 of the Alabama Rules of Civil
Procedure, attempted to sever Ms. Erby’s lawsuit into two separate cases with
All page references to Doc. 14-2 correspond with the court’s CM/ECF numbering system.
different case numbers, this specific relief was never clearly ordered in state court.
Consequently, this court concludes that Ms. Erby’s complete case–CV-2015900274.00–was removed to federal court on March 25, 2016, exclusively on the basis
of diversity jurisdiction. As explained in greater detail below, the court sua sponte
determines that an order remanding for lack of subject matter jurisdiction is required
because Defendants have not satisfied the amount in controversy component.
More specifically, Defendants have not carried their burden of satisfying the
amount in controversy requirement under the binding precedent of Lowery v.
Alabama Power Co., 483 F.3d 1184, 1213 (11th Cir. 2007) (“Thus, under § 1446(b),
in assessing the propriety of removal, the 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.”), as clarified by Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 747 (11th Cir. 2010) (“As we will explain, Lowery was
a case that involved the removal procedures in the second paragraph of 28 U.S.C. §
1446(b) [since reorganized and found at § 1446(b)(3)], and the decision must be read
in that context.”).
Regarding amount in controversy generally, “when Congress created lower
federal courts, it limited their diversity jurisdiction to cases in which there was a
minimum monetary amount in controversy between the parties.” Smith v. GTE Corp.,
236 F.3d 1292, 1299 (11th Cir. 2001) (citing Snyder v. Harris, 394 U.S. 332, 334, 89
S. Ct. 1053, 1056, 22 L. Ed. 2d 319 (1969)). Today, the threshold amount in
controversy for diversity jurisdiction, excluding interests and costs, is $75,000. 28
U.S.C. § 1332(a).
Here, like Lowery, Ms. Erby’s damages are unspecified and Defendants invoke
§ 1446(b)’s second and more demanding removal mechanism.3 As the Pretka court
distinguished a § 1446(b)(3) removal from a first paragraph one (now codified at 28
U.S.C. § 1446(b)(1)):
Although the second paragraph of § 1446(b) offers an additional
avenue for removal, that road is not an easy one for defendants to travel.
As the Powers Court said, the traditional understanding was that
removal was both permitted and required “as soon as the action assumes
the shape of a removable case.” Powers, 169 U.S. at 101, 18 S. Ct. at
267. Otherwise a defendant could wait and see how it fared in the state
court proceedings before deciding whether to remove. The second
paragraph of § 1446(b) continues the requirement of promptness. The
renewed removal window opens, but only for thirty days, when the
defendant receives a document “from which it may first be ascertained
that the case is one which is or has become removable.” 28 U.S.C. §
1446(b) (second paragraph). That language—especially the word
“ascertained”—is different from the language of the first paragraph of
§ 1446(b). The Fifth Circuit has explained the difference:
“Setting forth,” the key language of the first
Consistent with their severance/limited removal argument, Defendants’ analysis of the
amount in controversy is limited to Ms. Erby’s outrage and conspiracy to commit outrage claims.
paragraph, encompasses a broader range of information
that can trigger a time limit based on notice than would
“ascertained,” the pivotal term in the second paragraph. To
“set forth” means to “publish” or “to give an account or
statement of.” “Ascertain” means “to make certain, exact,
or precise” or “to find out or learn with certainty.” The
latter, in contrast to the former, seems to require a greater
level of certainty or that the facts supporting removability
be stated unequivocally.
Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002) (footnotes
Pretka, 608 F.3d at 760 (emphasis added).
“[W]here a plaintiff has made 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 Serv. Corp., 77 F.3d 1353, 1356-57 (11th Cir.
1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069,
1072 (2000). Under Lowery’s holding governing § 1446(b)(3)’s second opportunity
to remove, “the court considers the documents received by the defendant from the
plaintiff . . . and determines whether that document and the notice of removal
unambiguously establish federal jurisdiction.” Lowery, 483 F.3d at 1211. In Lowery,
the Eleventh Circuit was at a loss to determine by what means it could make an
informed assessment of the amount in controversy because the damages were
unspecified and only the bare pleadings were available. Id. at 1210; cf. Pretka, 608
F.3d at 754 (“A different question is presented, however, 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.”).
Similarly, in this case, the court finds that the allegations of the amount in
controversy made in the notice of removal coupled with the unspecified
compensatory and punitive damages contained in Ms. Erby’s amended complaint are
insufficient to establish satisfaction of the amount in controversy requirement. In its
notice of removal, Sedgwick unpersuasively and in a boilerplate fashion maintains
that even though Ms. Erby has failed to assert any specific monetary amounts, her
simply seeking compensatory and punitive damages within her complaint satisfies the
amount in controversy burden. (See Doc. 1 at 5 ¶ 12 (“A review of the Complaint
establishes that despite the fact that Plaintiff does not plead a specific amount of
damages, the amount in controversy exceeds the jurisdictional threshold of $75,000
exclusive of interest and costs.”); id. at 6 ¶ 15 (“Plaintiff seeks compensatory and
punitive damages.”)). However, such an amount in controversy statement is
insufficient under Lowery’s holding that a removing party relying upon § 1446(b)(3)
show the existence of federal jurisdiction without any ambiguity. Id., 483 F.3d at
Further, Sedgwick’s suggestion, without any analysis of the cases cited, that
combining Ms. Erby’s outrage and conspiracy to commit outrage counts means that
the amount in controversy component has been met is unavailing. (Doc. 1 at 6-7 ¶
16). While as a general matter Sedgwick is correct that aggregation of a plaintiff’s
claims is permissible to meet the jurisdictional minimum, Snyder, 394 U.S. at 335, 89
S. Ct. at 1056, consideration of a double recovery by a plaintiff for the same alleged
wrongful conduct is not. Instead, a prerequisite for combining counts is that each one
must seek distinct damages, which is not the situation here. Compare Nickelson v.
Nestles Milk Products Corp., 107 F.2d 17, 18 (5th Cir. 1939) (“[A]lthough there were
several counts in the complaint, the court took the view that, inasmuch as the
plaintiff's intestate could be killed but once, each count was for the same cause of
action, namely, the wrongful death of the decedent.”), with id. (“That was a different
case from the one before us, where the appellant is suing to recover penalties and
damages accruing from alleged violations of the anti-trust laws, each claim being set
forth in a separate count, there being nothing in the complaint to rebut the
presumption that each count is for a separate cause of action, and the Alabama rule
being that, under the pleadings, he may recover the total of the various amounts asked
in each count, that total being more than three thousand dollars.”).4
While this court recognizes that the requisite amount in controversy might
exist, “[i]f the court asserts jurisdiction on the basis of the defendant’s speculative
assertions, it implicitly accepts rank speculation as reasonable inquiry [per Rule 11].
This could undermine the requirement of reasonable inquiry not only in removal
situations, but also in other contexts.” Lowery, 483 F.3d at 1215 n.67; see also
Williams v. Best Buy Co., 269 F.3d 1316, 1320 (11th Cir. 2001) (“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.”).
As Lowery explains, “the district court has before it only the limited universe
of evidence available . . . [and] if that evidence is insufficient to establish that
removal was proper or that jurisdiction is present, neither the defendants nor the court
may speculate in an attempt to make up for the notice’s failings.” Id. at 1214-15; see
also Lindsey v. Ala. Tel. Co., 576 F.2d 593, 595 (5th Cir. 1978) (holding that “it was
not open for defendants to attempt to show” the requisite amount in controversy per
capita where the complaint made insufficient allegations, “[n]or was it open to the
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
district court to speculate that such was in fact the case”). “Under § 1446(b)[(3)], the
operative document must unambiguously establish federal jurisdiction.” Belkin v.
Home Depot U.S.A., Inc., No. 07-61368-CIV, 2007 WL 4247685, at *1 (S.D. Fla.
Dec. 3, 2007) (citing Lowery, 483 F.3d at 1214, in turn citing Bosky v. Kroger Texas,
LP, 288 F.3d 208, 211 (5th Cir. 2002) (“holding that the document must be
‘unequivocally clear and certain’”)).
Therefore, “jurisdiction is either evident from the removing documents or
remand is appropriate.” Lowery, 483 F.3d at 1211. “The absence of factual allegations
pertinent to the existence of jurisdiction is dispositive and, in such absence, the
existence of jurisdiction should not be divined by looking to the stars.” Id. at 1215.
For several reasons, the collection of cases cited by Sedgwick in its removal
petition concerning punitive damage awards rendered in Alabama more than fifteen
years ago (Doc. 1 at 7-8 ¶ 17) does not alter the court’s analysis that Defendants have
not met their jurisdictional burden under Lowery. First, none of the cited cases
involves an outrage claim or a conspiracy to commit outrage claim. Second,
Sedgwick makes no attempt “to explain the facts of those other tort cases or link them
to the facts of the [this] case.” Pretka, 608 F.3d at 753 (citing Lowery, 483 F.3d at
Third, the age of these verdicts makes them suspect as reliable indicators of
amount in controversy when punitive damages are at stake as “[t]he landscape of
punitive damages in Alabama has changed a great deal since the mid–1990’s, with
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), and its progeny setting
in motion an ever-changing body of law on the amount of punitive damages allowable
and awarded in Alabama.” Simpson v. Primerica Life Ins., Co., No.
2:15-CV-777-WKW-PWG, 2015 WL 9315658, at *7 (M.D. Ala. Dec. 3, 2015),
report and recommendation adopted, No. 2:15-CV-777-WKW, 2015 WL 9413876
(M.D. Ala. Dec. 22, 2015); see id. (“As evidence in support of the amount in
controversy, Defendants also provide the court with jury awards in two cases, decided
in 1994 and 1997, that are factually distinguishable from this case and were decided
so long ago as to belie the reliability of those cases as comparators.”) (emphasis
Further, permitting Defendants the opportunity to conduct discovery is not a
viable option under Lowery. As the Lowery court more specifically directs district
Post-removal discovery disrupts the careful assignment of burdens
and the delicate balance struck by the underlying rules. A district court
should not insert itself into the fray by granting leave for the defendant
to conduct discovery or by engaging in its own discovery. Doing so
impermissibly lightens the defendant’s burden of establishing
jurisdiction. A court should not participate in a one-sided subversion of
the rules. The proper course is remand.
Id., 483 F.3d at 1218 (emphasis added) (footnotes omitted).
This court recognizes that pre-Lowery Eleventh Circuit case law contemplated
at least some allowable range of discovery while the case is still pending in federal
court. See Sierminski v. Transouth Financial Corp., 216 F.3d 945, 949 (11th Cir.
2000) (“We align ourselves with our sister circuits in adopting a more flexible
approach, allowing the district court when necessary to consider post-removal
evidence in assessing removal jurisdiction.”); id. at 946 (holding that a court may
consider evidence submitted after the removal petition is filed, “but only to establish
the facts present at the time of removal”).5 However, the extent to which any postremoval discovery is permissible under § 1446(b)(3) in a post-Lowery world is still
unclear because Lowery expressly instructs the district court to focus only upon the
removing documents when evaluating subject matter sufficiency under that
provision’s more exacting framework. Id. at 1211. Under such a standard, any postremoval responses to requests for admission would apparently be prohibited from
serving as a basis in support of that removal because they would fall outside the
universe of acceptable documents for the court to appropriately consider when
In its discussion of post-removal discovery, Lowery does not mention Sierminski. However, the
procedural history in Sierminski reveals that, in contrast to Lowery, the defendant removed the plaintiff’s
lawsuit within 30 days of the filing of the complaint (i.e., a § 1446(b)(1) removal). Sierminski, 216 F.3d
evaluating amount in controversy. Id. at 1214-15.
Even though Sedgwick cites to Pretka in its removal petition (Doc. 1 at 5-6 ¶
14), it noticeably does not acknowledge the existence of Lowery, much less explain
how the present removal satisfies its jurisdictional standard and/or why Lowery
should not apply in this instance. Sedgwick does rely on a portion of the Supreme
Court’s decision in Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. __, 135
S. Ct. 547, 190 L. Ed. 2d 495, 2014 WL 7010692 (Dec. 15, 2014) (Doc. 1 at 5 ¶ 13),
as supporting its amount in controversy statement:
In sum, as specified in § 1446(a), a defendant’s notice of removal
need include only a plausible allegation that the amount in controversy
exceeds the jurisdictional threshold. Evidence establishing the amount
is required by § 1446(c)(2)(B) only when the plaintiff contests, or the
court questions, the defendant’s allegation.
Dart Cherokee, 135 S. Ct. at 554. Thus, a deeper examination of Dart Cherokee is
required by this court.
Dart Cherokee, like Lowery, arises under the Class Action Fairness Act of
2005 (“CAFA”). However, in contrast with Lowery, Dart Cherokee involves a
§ 1441(b)(1) removal. See Dart Cherokee, No. 5:12-CV-4157-JAR-JPO, 2013 WL
2237740, at *1 (D. Kan. May 21, 2013), vacated, 2015 WL 5451441 (D. Kan. Mar.
4, 2015) (noting filing date of October 30, 2012, in state court and removal on
December 5, 2012); (see also id., Doc. 1 (Defendants’ Notice of Removal) at 4 ¶ 16
(D. Kan. Dec. 5, 2012) (“Defendants first received a copy of this Petition on
November 5, 2012, when each was received by Defendants’ statutory agents for
service of process. This Notice is filed within 30 days of that date.”)). The
unspecified damages sought by the plaintiff in Dart Cherokee were described as “a
fair and reasonable amount to compensate putative claims members for damages they
sustained due to the alleged underpayments [of oil and gas lease royalties].”Dart
Cherokee, 135 S. Ct. at 551 (internal quotation marks omitted). In their removal
petition, the Dart Cherokee defendants “stated that the purported underpayments to
putative class members totaled more than $8.2 million.”6 Id. at 552. These defendants
subsequently submitted evidence that substantiated satisfaction of the amount in
controversy stated within the removal petition. Id. at 552. The plaintiff did not dispute
the underlying evidentiary estimation of damages; instead, he contested the timeliness
of that post-removal valuation. Id.
In a 5-4 opinion vacating the Tenth Circuit’s decision declining to review a
district court remand order to state court,7 the Court framed the amount in controversy
issue and holding as follows:
The amount in controversy threshold in a CAFA action is $5,000,000. 28 U.S.C. §
“Ordinarily, remand orders ‘[are] not reviewable on appeal or otherwise.’ § 1447(d). There
is an exception, however, for cases invoking CAFA. § 1453(c)(1).” Dart Cherokee, 135 S. Ct. at
To assert the amount in controversy adequately in the removal
notice, does it suffice to allege the requisite amount plausibly, or must
the defendant incorporate into the notice of removal evidence supporting
the allegation? That is the single question argued here and below by the
parties and the issue on which we granted review. The answer, we hold,
is supplied by the removal statute itself. A statement “short and plain”
need not contain evidentiary submissions.
Dart Cherokee, 135 S. Ct. at 551. Running afoul of this holding, the district court had
interpreted Tenth Circuit precedent to mean that “reference to factual allegations or
evidence outside of the petition and notice of removal is not permitted to determine
the amount in controversy.” Id. at 552 (internal quotation marks omitted).
The Supreme Court also made it clear that any presumption against removal is
inappropriate in a CAFA action, but left open the question of whether such a
presumption is still valid in an average removal case:
In remanding the case to state court, the District Court relied, in
part, on a purported “presumption” against removal. App. to Pet. for
Cert. 28a. See, e.g., Laughlin, 50 F.3d, at 873 (“[T]here is a presumption
against removal jurisdiction.”). We need not here decide whether such
a presumption is proper in mine-run diversity cases. It suffices to point
out that no antiremoval presumption attends cases invoking CAFA,
which Congress enacted to facilitate adjudication of certain class actions
in federal court. See Standard Fire Ins. Co., 568 U.S., at __, 133 S. Ct.,
at 1350 (“CAFA’s primary objective” is to ensur[e] ‘Federal court
consideration of interstate cases of national importance.’” (quoting §
2(b)(2), 119 Stat. 5)); S. Rep. No. 109-14, p. 43 (2005) (CAFA’s
“provisions should be read broadly, with a strong preference that
interstate class actions should be heard in a federal court if properly
removed by any defendant.”).
Dart Cherokee, 135 S. Ct. at 554 (emphasis added).
This court has been able to locate only one Eleventh Circuit decision that
discusses Dart Cherokee–Dudley v. Eli Lilly & Co., 778 F.3d 909 (11th Cir. 2014).
Dudley is a CAFA case in which the Eleventh Circuit decided that “on the limited
record presented, the district court did not clearly err in determining that Lilly has
failed to meet by a preponderance of the evidence CAFA’s amount-in-controversy
requirement.” 778 F.3d at 911. The Eleventh Circuit described Dart Cherokee as a
decision “which shed additional light on the jurisdictional requirements found in
CAFA.” Dudley, 778 F.3d at 912. The panel in Dudley specifically acknowledged
Dart’s no antiremoval presumption rule applicable in CAFA cases and its
pronouncement “on the necessary contents of a CAFA defendant’s notice of
removal.” Dudley, 778 F.3d at 912; see also id. (“Applying this binding precedent
from the Supreme Court, we may no longer rely on any presumption in favor of
remand in deciding CAFA jurisdictional questions.” (citing United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008) (recognizing that Eleventh Circuit prior
precedent will no longer be good law when “an intervening decision of the Supreme
Court is clearly on point and undermines our prior precedent to the point of
The Dudley court further explained its understanding of Dart to mean:
In cases like this, however–where the plaintiff contests [or the
court questions] the defendant’s amount in controversy–Dart recognized
that the district court must go further. Citing to the CAFA statute, the
Supreme Court observed that when a notice of removal's allegations are
disputed, the district court must find “‘by the preponderance of the
evidence, that the amount in controversy exceeds’ the jurisdictional
threshold.” Id. at 553, 2014 WL 7010692 at *5, slip op. at 912 (quoting
28 U.S.C. § 1446(c)(2)(B)). We have repeatedly held that the removing
party bears the burden of proof to establish by a preponderance of the
evidence that the amount in controversy exceeds the jurisdictional
minimum. S. Fla. Wellness, 745 F.3d at 1315; Pretka, 608 F.3d at 752;
Miedema, 450 F.3d at 1330. We’ve also observed that, in making this
calculation, “[a] court may rely on evidence put forward by the
removing defendant, as well as reasonable inferences and deductions
drawn from that evidence.” S. Fla. Wellness, 745 F.3d at 1315. “[A]
removing defendant is not required to prove the amount in controversy
beyond all doubt or to banish all uncertainty about it.” Pretka, 608 F.3d
at 754. Moreover, at the jurisdictional stage, “the pertinent question is
what is in controversy in the case, not how much the plaintiffs are
ultimately likely to recover.” Id. at 751 (quotation and emphasis
omitted). “The amount in controversy is not proof of the amount the
plaintiff will recover. Rather, it is an estimate of the amount that will be
put at issue in the course of the litigation.” Id. (quotation omitted).
Dart–which did not involve a plaintiff’s contest to the defendant’s
jurisdictional allegations–did not disrupt any of this pre-existing CAFA
Dudley, 778 F.3d at 912-13. The Dudley decision neither mentions Lowery nor
otherwise signifies that Lowery’s binding framework for removing under §
1446(b)(3) is, because of Dart Cherokee, no longer applicable within the Eleventh
Circuit. Further, because this lawsuit is a non-CAFA one, “the rule of construing
removal statutes strictly and resolving doubts in favor of remand[,]” Miedema v.
Maytag Corp., 450 F.3d 1322, 1328 (11th Cir. 2006), abrogated in part by Dart
Cherokee, is still in place. See United States v. Hogan, 986 F.2d 1364, 1369 (11th
Cir. 1993) (“[I]t is the firmly established rule of this Circuit that each succeeding
panel is bound by the holding of the first [published] panel to address an issue of law,
unless and until that holding is overruled en banc, or by the Supreme Court.”).
Thus, the court finds that Defendants have not carried their Lowery burden to
establish the requisite amount in controversy unambiguously in this § 1446(b)(3)
removal, and the court lacks diversity jurisdiction. Alternatively, to the extent that
Defendants’ satisfaction of § 1446(b)(3)’s more burdensome amount in controversy
requirement is a close call, the court resolves its doubts in favor of remanding Ms.
Erby’s non-CAFA case for lack of diversity jurisdiction.
Therefore, this entire lawsuit is due to be remanded to the Circuit Court of
Marshall County, Alabama for lack of subject matter jurisdiction. The court will enter
a separate remand order consistent with this memorandum opinion.
DONE and ORDERED this 30th day of June, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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