Westervelt Company Inc, The v. Robertson et al
MEMORANDUM OPINION. Signed by Judge R David Proctor on 9/2/2015. (AVC)
2015 Sep-02 PM 03:37
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
THE WESTERVELT COMPANY INC.,
JEAN ROBERTSON and TERRY J.
Case No.: 7:15-cv-383-RDP
The court has before it Plaintiff’s Motion to Remand or, in the Alternative, To Permit
Jurisdictional Discovery and Stay Other Proceedings (Doc. # 9), filed on April 2, 2015; and
Plaintiff’s Motion to Strike (Doc. # 16), filed on May 4, 2015.1 The motions have been fully
briefed. (Docs. # 9, 15, 16, 17). Plaintiff’s Motion to Strike is moot due to the withdrawal of
Defendants’ expert’s affidavit. (Doc. # 17). For the reasons outlined below, the court finds that
Plaintiff’s Motion to Remand is due to be granted and this case is remanded to the Probate Court
of Bibb County, Alabama.2
The caption styles Plaintiff and Defendants as “Petitioner” and “Respondent” respectively, presumably
because those terms are used in a state condemnation proceeding. The parties have nonetheless used both terms in
their submissions to the court. The Alabama Supreme Court has stated, “[T]he words ‘plaintiff’ and defendant’ are
used in some condemnation cases as a matter of clarity or convenience” even though they are not adversary
proceedings. Cooper v. Magic City Trucking Service, Inc., 264 So.2d 146, 150-51 (Ala. 1972). The court will use
the terms “Plaintiff” and “Defendant” or “Defendants” in its opinion.
Given that it finds that it lacks jurisdiction over this case, the court cannot rule on Defendant’s pending,
stayed Motions to Dismiss and will direct the Clerk of Court to administratively terminate those motions. (Docs. #
Relevant facts and procedural history
Plaintiff The Westervelt Company Inc. originally filed this action against Defendants
Jean Robertson and Terry J. Smith (“Defendants”)3 in the Probate Court of Bibb County,
Alabama. (Doc. #1, Ex. A). Plaintiff’s state “Application for Condemnation of Right-of-Way”
(“Application”)4 seeks, pursuant to Alabama Code § 18-3-1, et seq., condemnation of a right-ofway across Defendants’ property to access a public road from property that Plaintiff owns. (Doc.
#1, Ex. A). No amount in controversy or ad damnum clause is contained in the Application.
The disputed property in this case is a road over Defendants’ property in Bibb County,
Alabama, that is approximately one-fourth mile in length. (Doc. #1, Ex. A). Plaintiff owns
adjacent, landlocked property with no access to a public road. (Doc. #1, Ex. A). Plaintiff states
that it used the disputed road to access its property since 1951, when the disputed property was
owned by a lumber company. (Doc. #1, Ex. A). Starting in approximately 1995, Defendant
Robertson, who now owns the property, erected a gate across the road, blocking Plaintiff’s use of
it, and advised Plaintiff that it may no longer use the road. (Doc. #1, Ex. A). Plaintiff thus seeks
an easement to use the road. (Docs. #1, 9).
Defendants filed a timely petition to remove this case to this court (pursuant to 28 U.S.C.
§§ 1441 and 1446), invoking this court’s subject matter jurisdiction under 28 U.S.C. §
1332(a)(1). (Doc. # 1). Defendants’ assertion of diversity of citizenship is premised on their
argument that Terry Smith is improperly joined and Jean Robertson is a resident of, and
There is a dispute among the parties concerning whether Defendant Smith is a proper defendant in this
case. Smith resides at the disputed property that is owned by Defendant Robertson. However, because the court
determines that the case is due to be remanded on different grounds, it is unnecessary for the court to resolve that
factual dispute in any event. Further, because the court finds that it has no subject matter jurisdiction over this case,
it has no authority to rule on that issue, in any event. Regardless, this Opinion will refer to Smith and Richardson
jointly as “Defendants.”
Defendants’ Notice of Removal states that Plaintiff’s Application was attached as Exhibit A, but the
Application actually comes prior to the Exhibit A cover sheet. (Doc. #1). Nonetheless, for ease of reference, the
court refers to the Application as being part of Exhibit A.
domiciled in, the state of Tennessee. (Doc. # 1). Plaintiff is an Alabama corporation and, thus, a
resident of Alabama. (Doc. # 1). Even though Plaintiff does not seek a sum certain or allege in
the state Application that the value of the disputed property exceeds $75,000.00, Defendants
maintain -- by way of Defendant Robertson’s affidavit -- that the value of the disputed property,
if condemned under state law, is $80,000.00. (Doc. # 1, Ex. C).
Plaintiff’s motion to remand disputes both (1) that the parties are of diverse citizenship as
it asserts that Defendants Smith and Robertson are common law married or that Robertson is
actually a domiciliary of Alabama, and (2) the amount in controversy. (Doc. # 9). In support of
its dispute concerning the amount in controversy, Plaintiff submits as Exhibit B to its motion to
remand a detailed appraisal asserting that a value for the easement is in the amount of $1,360.00.
(Doc. #9, Ex. B). Plaintiff also submitted an alternative appraisal of a second possible easement
elsewhere on Defendant’s property and determined the value of that easement to be $1,980.00.
(Doc. #9, Ex. B). Additionally, Plaintiff argues in its motion to remand that the court should
decline jurisdiction pursuant to the “probate exception” to federal jurisdiction as set forth by the
Court in Marshall v. Marshall, 547 U.S. 293 (2006). (Doc. # 9). In so arguing, Plaintiff
contends that the federal courts refuse jurisdiction when probate courts exercise in rem
jurisdiction over property in an essentially administrative function, as the Probate Court of Bibb
County was doing here prior to removal. (Doc. # 9). Finally, Plaintiff suggests that, in the
alternative, the court permit jurisdictional discovery and stay other proceedings until such time
that the jurisdictional question is resolved. (Doc. # 9).
Defendants’ response to Plaintiff’s motion to remand reasserted many of the same
arguments made in Defendants’ notice of removal, and included a second affidavit from
Defendant Robertson asserting her opinion that the easement should be valued at $80,000.00.
(Doc. # 15, Ex. PX3). Defendants also included with their response an affidavit of Bill Mackey,
a real estate expert, who opined a value of $94,500.00 for the encumbrance. (Doc. # 15, Ex.
PX4.). Mr. Mackey’s affidavit did not set forth his methodology or discuss how he reached his
conclusion. (Doc. # 15, Ex. PX4.). Plaintiff included with its reply brief a Motion to Strike the
Affidavit of Bill Mackey on the grounds that it is conclusory, and thus violates Rule 702 of the
Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
(Doc. # 16). Defendants thereafter withdrew the affidavit of Bill Mackey but did not abandon
their claim that the amount in controversy exceeds $75,000.00. However, their amount in
controversy position is now based solely on the basis of Defendant Robertson’s opinion as owner
of the disputed property. (Doc. # 17).5
Pursuant to 28 U.S.C. § 1332, the court has subject matter jurisdiction over a case
involving state law claims when there is both complete diversity of citizenship among the
parties, and the amount in controversy exceeds $75,000. For complete diversity to exist, no
defendant can be from the same state as any plaintiff. First National Bank of Talladega v. Lovell,
No. 14-cv-1222, 2014 WL 4957135, at *1 (N.D. Ala. Oct. 1, 2014) (quoting Leyva v. Daniels,
530 Fed. Appx. 933 (11th Cir. 2013) (unpublished opinion); Triggs v. John Crump Toyota, Inc.,
154 F.3d 1284, 1287 (11th Cir. 1998)). Federal courts strictly construe removal statutes. City of
Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012) (citing Univ. of S.
Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999)). The burden of establishing
subject matter jurisdiction over a case removed to this court is on the removing party. Roe v.
Michelin North America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010). “[A]ll doubts about
Because Defendants withdrew the Affidavit of Bill Mackey, Plaintiff’s Motion to Strike is rendered moot.
jurisdiction should be resolved in favor of remand to state court.” Vestavia Hills, 676 F.3d at
Whether Complete Diversity Exists
Defendants argue that complete diversity exists in this case because Defendant Smith, an
Alabama resident, was improperly joined by Plaintiff, an Alabama Corporation, and the only
proper party is a Tennessee resident.6 An action is removable if the joinder of non-diverse
parties is improper, or, as it is more commonly called, fraudulent. Triggs, 154 F.3d at 1287; see
Manley v. Ford Motor Co., 17 F. Supp. 3d 1375, 1380 n. 2 (N.D. Ga. 2014) (citations omitted)
(noting that “the term ‘fraudulent joinder’ is a bit of a misnomer—the doctrine requires neither
fraud nor joinder. . . . the term ‘improper joinder’  is more consist with the statutory language,
though its meaning is substantively identical to ‘fraudulent joinder.’”). Fraudulent joinder of a
resident (non-diverse) defendant exists when there is no possibility that the plaintiff can prove a
cause of action against the resident defendant. Triggs, 154 F.3d at 1287 (citing Coker v. Amoco
Oil Co., 709 F.2d 1433, 1440 (11th Cir. 1983)).
The burden of proving fraudulent joinder rests with the removing party. See id. (citing
Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). In the context of fraudulent joinder,
the court must view all allegations and submissions in the light most favorable to the plaintiff.
Talladega, 2014 WL 4957135, at *4 (citing Crowe, 113 F.3d at 1538). If it is established that a
non-diverse defendant is improperly joined, the court must ignore that defendant’s presence
when ruling on a motion to remand the case to state court. See Henderson v. Wash. National Ins.
Co., 454 F.3d 1278, 1281 (11th Cir. 2006).
Defendant Robertson has stated in two different affidavits that she is a resident and domiciliary of the
state of Tennessee.
In their Notice of Removal, Defendants argue that there is complete diversity in this case
because (1) Defendant Smith is not properly joined in this case because he has no ownership
interest in the disputed property and (2) Defendant Robertson is a Tennessee resident. To the
contrary, Plaintiff contends that Defendants Richardson and Smith are common law married and,
therefore, he has an ownership interest in the disputed property. If Defendant Smith has an
ownership interest, Plaintiff reasons, it follows that he is properly joined, and complete diversity
The court finds that Defendant Robertson’s affidavits effectively prove, at least for
jurisdictional purposes, that she is a Tennessee resident and domiciliary.
citizenship is diverse from Plaintiff. On the other hand, it is undisputed that Defendant Smith is
a resident of Alabama. Therefore, the key issue is whether he is a proper party to this case. If he
is not, then complete diversity exists. If he is, then complete diversity is destroyed. However,
the court need not decide this issue,7 or order jurisdictional discovery, because Defendants have
failed to prove that the jurisdictional amount in controversy is met.
The Value of the Disputed Property at the Time of Removal Was Below the
Plaintiff’s state Application does not assign a value to the disputed property. If a plaintiff
has not specified a value in its pleading in state court, the removing party must prove by a
preponderance of evidence that the amount in controversy more likely than not exceeds the
jurisdictional requirement. Roe, 613 F.3d at 1061 (citing 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 removing party may satisfy its burden by submitting
And, to be sure, it is an interesting issue. Defendant Smith swears in his affidavit that he is not the
common law spouse of Defendant Robertson. However, Plaintiff asserts that it has good reason to believe that
Defendants are, in fact, common law spouses, and points to documentary evidence suggesting that Defendant
Richardson is married—at least as of 1995. (Doc. # 1 Ex. B).
additional evidence to demonstrate that the jurisdictional minimum is met. See id.; Pretka v.
Kolter City Plaza II, Inc., 608 F.3d 744 (11th Cir. 2010). However, removal “cannot be based
simply upon conclusory allegations” where the amount in controversy is silent. Sierminski v.
Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000) (citing Singer v. State Farm Mut. Auto.
Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). In the alternative, the court may determine that it is
“facially apparent” from the complaint that the amount in controversy likely exceeds $75,000.00,
even if damages are unspecified. Snellgrove v. Goodyear Tire & Rubber Co., No. 13-cv-2062,
2014 WL 235367, at *3 (quoting Roe, 613 F.3d at 1061-62). And, the “court may use [its]
judicial experience and common sense in determining whether the case stated in the complaint
meets federal jurisdictional requirements.” Roe, 613 F.3d at 1061-62.
Further, inquiry into the existence of diversity jurisdiction focuses on the circumstances
existing at the time of removal. Snellgrove, 2014 WL 235367, at *2 (quoting Sierminski, 216
F.3d at 949). While a plaintiff may not defeat removal by subsequently changing a damage
request, a post-removal affidavit or document clarifying an ambiguity in the amount of damages
sought by the complaint is, essentially, a nunc pro tunc elucidation of the amount in controversy
at the time of removal. See Brooks v. Pre-Paid Legal Servs., Inc., 153 F. Supp. 2d 1299, 130001 (M.D. Ala. 2001); Moore v. Toyota Motor Corp., 64 F. Supp. 2d 612, 614 (N.D. Miss. 1999).
In other words, the court must examine the jurisdictional facts as of the time the case is removed,
even when it considers information submitted after removal. See Sierminski, 216 F.3d at 949
(citing Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)).
While Plaintiff was initially silent on the value of the disputed property, Defendants
attribute the amount in controversy to be $80,000.00. Defendants’ basis for this amount is the
opinion of Defendant Robertson, who has submitted her opinion pursuant to Alabama Code §
12-21-114, and Alabama common law.8
In response to Defendant Robertson’s opinion regarding the property’s value, Plaintiff
submitted a detailed appraisal of the property. This appraisal determined the value of the two
likeliest parts of the property where the easement would be located to be approximately
$1,360.00 or $1,980.00. (Doc. # 9). Even though Plaintiff submitted the appraisal after removal,
the court finds that such an appraisal merely helps clarify the amount in controversy at the time
of removal. See Sierminski, 216 F.3d at 949; Moore, 64 F. Supp. 2d at 614. Thus, the court
accepts the appraised value as evidence of the amount in controversy.
The court finds that even though Defendant Robertson may indeed be competent to
testify as to her opinion of the value of the property, such an opinion must not be conclusory.
See Sierminski, 216 F.3d at 949. Without question, Defendant Robertson’s opinion is just that—
wholly conclusory. Furthermore, in the court’s “judicial experience and common sense,” it
seems unlikely that a quarter-mile stretch of property in rural Alabama over an existing road is
valued at $80,000.00—especially when the property’s owner is not entirely deprived of its use.
Roe, 613 F.3d at 1061-62. While the value of the disputed property may indeed be higher than
that attributed to it by Plaintiff’s appraiser, the court finds it does not exceed $75,000.00.
Mindful that “all doubts about jurisdiction should be resolved in favor of remand to state court.”
Vestavia Hills, 676 F.3d at 1313, the court concludes that Defendants have not proven by a
preponderance of the evidence that the value of the disputed property more likely than not meets
Section 12-21-114 sets forth that “Direct testimony as to the market value is in the nature of opinion
evidence; one need not be an expert or dealer in the article, but may testify as to value if he has had an opportunity
for forming a correct opinion.” Under Alabama law, an owner of real property may testify as to the value of such
property. See, e .g., Carson v. Canales, 409 So.2d 842, 843 (Ala. Civ. App. 1981). Although the parties dispute the
admissibility of Defendant Robertson’s opinion, the court need not make a detailed analysis of this issue because,
even if it were admitted, it would not change the outcome of the court’s decision in favor of remand.
the jurisdictional minimum. Roe, 613 F.3d at 1061. Accordingly, the requisite amount in
controversy has not been proven, and this case is due to be remanded to state court.
Alternatively, the “Probate Exception” Applies and on That Basis this Case
Is Due to be Remanded
Plaintiff also argues that, in the alternative, the probate exception to diversity jurisdiction
applies, and thus this case is due to be remanded. The court agrees and finds that, alternatively,
the probate exception is indeed applicable here.
The Court in Marshall v. Marshall, 547 U.S. 293 (2006), clarified the parameters of the
probate exception as initially defined in Markham v. Allen, 326 U.S. 490 (1946). In Marshall,
the Court reiterated “the general principle that, when one court is exercising in rem jurisdiction
over a res, a second court will not assume in rem jurisdiction over the same res.” 547 U.S. at 311
(citations omitted). Marshall elucidated that “the probate exception reserves to state probate
courts the probate or annulment of a will and the administration of a decedent’s estate; it also
precludes federal courts from endeavoring to dispose of property that is in the custody of a state
probate court.” Id. at 311-12; see also Three Keys Ltd. v. SR Utility Holding Co., 540 F.3d 220,
227 (3rd Cir. 2008). Thus, this court may not “assume in rem jurisdiction over property that is in
the custody of the probate court.” Three Keys, 540 F.3d at 227.
Plaintiff rightly brought this case by Application to the Probate Court of Bibb County in
accordance with Alabama Code § 18-3-3. The Supreme Court of Alabama “has held that a
[state] circuit court is without jurisdiction to consider, in the first instance, a request for the
condemnation of property” in accordance with Alabama’s private condemnation statute.
Johnson v. Metro Land Co., L.L.C., 18 So.3d 962, 965-66 (Ala. Civ. App. 2009) (citing Aland v.
Graham, 250 So.2d 677 (Ala. 1971)). In other words, Alabama probate courts have exclusive
original jurisdiction in proceedings like the one brought by Plaintiff to determine how
Defendants’ res should be disposed. See Tilley’s Alabama Equity § 17:3 (5th ed.). Plaintiff did
not bring a transitory action relating to Defendants’ property that may be decided in a number of
jurisdictions; instead, Plaintiff brought a wholly in rem action which is to be exclusively decided,
in the first instance, in Alabama’s probate courts. Cf. Marshall, 547 U.S. at 313-314. Because
the property was in the custody of the probate court, this court may not assume in rem
jurisdiction over it.9 Three Keys, 540 F.3d at 227. Accordingly, the court finds that the probate
exception applies and the court does not have jurisdiction over this case.
Based on the foregoing reasons, Defendants have not satisfied their burden of proving the
grounds for removal are met. Therefore, the case is due to be remanded to the Probate Court of
Bibb County. The court will enter an order consistent with this opinion.
DONE and ORDERED this September 2, 2015.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
The court also notes that, if it were to take jurisdiction over this in rem action, the parties would be
deprived of the more in-depth availability of the ore tenus rule, which is “especially applicable in private
condemnation cases.” Key v. Ellis. 973 So.2d 359, 365 (Ala. Civ. App. 2007). The Probate Court of Bibb County
is responsible for a smaller geographic jurisdictional area than the court for this District. The probate judge thus has
a greater “advantage of viewing the premises and knowing the locale” than a judge in this court. Therefore, the rule
would be “emphasized” by an Alabama appellate court, and that appellate court would be highly deferential to the
probate judge. Id. The parties and the trier of fact would lose that advantage if the case stayed in this court.
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