Dean v. Sears, Roebuck and Co. et al

Filing 17

MEMORANDUM OPINION AND ORDER entered re 10 Motion to Remand to State Court. It is hereby ORDERED that the Motion to Remand (doc. 10) be GRANTED and that this matter be REMANDED to the Circuit Court of Mobile County, Alabama. Signed by Magistrate Judge William E. Cassady on 3/7/2014. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ANITA DEAN,

:

Plaintiff,

:

v.

:

SEARS, ROEBUCK AND CO.,
d/b/a SEARS ESSENTIALS; and
LAUREN HENDERSON,

:

Defendant.

CA 13-00487-C

:
:

MEMORANDUM OPINION AND ORDER
A Motion to Dismiss (doc. 3) and a Motion to Remand (doc. 10) have been filed
in this matter, removed from the Circuit Court of Mobile County, Alabama, on October
9, 2013 (see doc. 10).

Both motions have been fully briefed (see docs. 9 and 13).

Although the Motion to Dismiss was filed before the Motion to Remand, (see docs. 3
and 10), and remains pending,
[t]his Court’s analysis [must] begin[] with the threshold jurisdictional
question raised by [the] Motion to Remand. Absent federal jurisdiction,
this Court lacks the power to decide [the] pending Motion to Dismiss, and
must immediately remand this action to state court without reaching the
question of whether Plaintiff[] ha[s] stated cognizable claims against [the]
Defendants. Thus, the Court must first determine whether this action was
properly removed from state court.
Wilks v. Callahan, Civil Action No. 08–638–CG–M, 2009 WL 2243702, at *3 (S.D. Ala. July
24, 2009) (citing Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000);
University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999)); see also
Klempner v. Northwestern Mut. Life Ins. Co., 196 F. Supp. 2d 1233, 1242-43 (S.D. Fla. 2001)
(“Although a motion to dismiss is currently pending in this Court [ ], ‘a federal court
must remand for lack of subject matter jurisdiction notwithstanding the presence of
other motions pending before the court.’”) (quoting University of S. Ala., 168 F.3d at 411).

After careful consideration of the parties’ briefing and the pleadings, and for the
reasons discussed herein, the Motion to Remand (doc. 10) is GRANTED, and this
matter is REMANDED to the Circuit Court of Mobile County.
Magistrate Judge Jurisdiction
The parties have consented to the exercise of jurisdiction by the Magistrate
Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court, (doc. 8 (“In
accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the parties in
this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, including the trial, order the entry of a final judgment, and
conduct all post-judgment proceedings.”)), and, consequently, the Court has referred
this matter to the undersigned to conduct all proceedings, (doc. 11 (“IT IS ORDERED
that this case be referred to William E. Cassady United States Magistrate Judge, to
conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. §
636(c) and Fed. R. Civ. P. 73.”)).
Background
The Plaintiff filed her Complaint (doc. 1-1) in the Circuit Court of Mobile County,
Alabama, on September 5, 2013, asserting a personal injury action against the
Defendants. (Id.) Specifically, the Plaintiff alleges that while she was walking through
one of the stores of the Defendant Sears Roebuck and Co., (“Sears”), “she slipped and
fell in a puddle of water on the floor of the store, thereby causing her injuries.” (Id., ¶¶
5-6, 12-13.) She asserts claims of negligence and wantonness against the Defendants
and alleges that they “knew or in the exercise of reasonable care should have known of
the existence of the dangerous condition” that caused her injuries. (Id., ¶¶ 7-8, 14-15.)
The Plaintiff alleges that she sustained the following injuries:

2

she was injured in and about various portions of her body, including a
severe right ankle sprain that [led] to the development of right leg deep
thrombosis which subsequently [led] to an acute pulmonary embolism;
she was caused to suffer physical pain and mental anguish, still so suffers
and will so suffer in the future; she was caused to incur and will incur in
the future doctor bills, hospital bills, and other medical expenses in and
about the care and treatment of her injuries; and she was permanently
injured.
(Id., 10, 17.) As her relief, Plaintiff seeks “general compensatory and punitive damages
in excess of the jurisdictional limits of this Court plus interest and costs.” (Id., at 4, 6.)
Defendant Sears filed its Notice of Removal in this Court on October 9, 2013,
asserting that this Court has diversity jurisdiction over this case pursuant to 28 U.S.C. §
1332. (Doc. 1.) Sears argues that diversity jurisdiction exists because “the parties are
diverse and the amount in controversy exceeds $75,000.00 exclusive of interest and
costs.”

(Id., ¶ 4.)

Sears contends that its co-defendant, Lauren Henderson, was

fraudulently joined to “destroy diversity and prevent removal of this action.” (Id., ¶¶ 613.) With regard to the amount in controversy, Sears argues that “it is evident that
Plaintiff values the present action above the required amount in controversy” because
“[she] has made a demand of $115,000.00.” (Id. at 5.) Sears attached the Plaintiff’s
demand letter to its Notice of Removal. (Doc. 1-3.)
In her Motion to Remand (doc. 10), Plaintiff disputes Sears’ contention that
Lauren Henderson was fraudulently joined and also argues that Sears has failed to
show that the amount in controversy requirement has been met. (Id.) With regard to
the amount in controversy, Plaintiff states that her total special damages is $24,305.68,
(id., ¶ 22), and that her treating physician has stated that “Plaintiff has fully recovered
and will likely not require any future treatment or care related to this incident,” (id., ¶
24; doc. 10-1, July 12, 2013 report from Plaintiff’s treating physician, Eddie Pace, M.D.
(“It is my medical opinion that Ms. Dean has fully recovered from her injuries and

3

illnesses related to her fall. Her prognosis is excellent. Moreover, it is my opinion with a
reasonable degree of medical certainty that she will not require any additional
treatments, testing, physical therapy or procedures in the future related to her injury of
9/5/2011. . . . I do not see any potential long term sequela for Ms. Dean related to her
fall injury.”).)

Plaintiff argues that her $115,000.00 settlement demand should not

establish the value of this case because it “was made as a bare-bones attempt to stake
out ground for the purpose of anticipated settlement negotiations.” (Id., ¶ 24.)
Discussion
The Removal Inquiry.
“Any civil case filed in state court may be removed by the defendant to federal
court if the case could have been brought originally in federal court.” Tapscott v. MS
Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996) (citing 28 U.S.C. § 1441(a)),
abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).
And a federal court may exercise diversity jurisdiction over all civil actions where the
amount in controversy exceeds $75,000, exclusive of interest and costs, and the action is
between citizens of different states. 28 U.S.C. § 1332(a)(1). Nevertheless, “[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.” University of S. Ala., 168 F.3d at 411; cf.
D.M.C. Enters. Inc. v. Best McAllister, LLC, Civil Action No. 10-00153-CB-N, 2010 WL
3039477, at *2 (S.D. Ala. Aug. 4, 2010) (“Because it is conferred by statute, the right of
removal is strictly construed to limit federal jurisdiction.”) (citing Diaz v. Sheppard, 85
F.3d 1502, 1505 (11th Cir. 1996)).
Therefore, the defendant must establish the propriety of removal under section
1441 and, for that reason, “bears the burden of establishing the existence of federal
4

jurisdiction[,]” Brown v. Kabco Builders, Inc., Civil Action 07-0099-WS-C, 2007 WL 841690,
at *1 (S.D. Ala. Mar. 15, 2007) (citing Leonard v. Enterprise Rent a Car, 279 F.3d 967, 972
(11th Cir. 2002)), which requires that the defendant, one, establish complete diversity—
that the plaintiff is diverse from the defendants, Triggs v. John Crump Toyota, Inc., 154
F.3d 1284, 1287 (11th Cir. 1998) (citation omitted)—and, two, show that the amount in
controversy more likely than not exceeds the $75,000 jurisdictional requirement, see
Fitzgerald v. Besam Automated Entrance Sys., 282 F. Supp. 2d 1309, 1314 (S.D. Ala. 2003).
In her Motion to Remand, the Plaintiff argues that Sears failed to meet both
requirements. (Doc. 10.) The Plaintiff argues that Sears failed to establish diversity of
citizenship because Sears did not meet its burden of demonstrating that the Plaintiff
fraudulently joined Lauren Henderson, a resident of Alabama.

(Id., ¶¶ 10-17.)

Additionally, the Plaintiff argues that Sears has not shown that the amount in
controversy exceeds $75,000.00. (Id., ¶¶ 18-25.) Because the undersigned agrees with
the Plaintiff with regard to the amount in controversy, the undersigned need not
address the parties’ arguments with respect to fraudulent joinder.
Amount in Controversy
“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.’” Roe v.
Michelin North America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (quoting Tapscott, 77
F.3d at 1357).1 In an effort to meet its burden the removing defendant may present
additional evidence, including evidence of settlement demands, to establish that the

1

Sears and the Plaintiff agree that a specified amount of damages is not included
in the complaint and, thus, that preponderance of the evidence is the applicable burden of
proof. (See doc. 1 at 5; doc. 10, ¶¶ 19-20; doc. 13 at 3-4.)

5

amount in controversy exceeds $75,000. See Roe, 613 F.3d at 1061 (“In some cases, [the
removing

defendant’s]

burden

requires

[it]

to

provide

additional

evidence

demonstrating that removal is proper.” (footnote and citation omitted)); Burns v.
Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994) (considering the plaintiff’s
settlement demands before deciding whether the removing defendant established that
the amount in controversy satisfied the jurisdictional requirements); Land Clearing Co. v.
Navistar, Inc., Civil Action No. 11-0645-WS-M, 2012 WL 206171, at *2 (S.D. Ala. Jan. 24,
2012) (same); Benandi v. Mediacom Southeast, LLC, Civil Action No. 11-00498-CG-N, 2011
WL 5077403, at *2-4 (S.D. Ala. Sept. 30, 2011) (same); Jackson v. Select Portfolio Serv., Inc.,
651 F. Supp. 2d 1279, 1281 (S.D. Ala. 2009) (same).

The amount requested in a

settlement demand does not determine whether the amount in controversy exceeds
$75,000, but “it counts for something.”

Burns, 31 F.3d at 1097.

This Court has

commented that “[s]ettlement offers commonly reflect puffing and posturing, and such
a settlement offer is entitled to little weight in measuring the preponderance of the
evidence.” Jackson, 651 F. Supp. 2d at 1281 (citing Hall v. CSX Transportation, Inc., No.
3:06-CV-37-WKW, 2006 WL 3313682 at *3 n.5 (M.D. Ala. Nov. 14, 2006); Jackson v.
American General Financial Services, Inc., No. Civ.A.7:06CV19 (HL), 2006 WL 839092 at *2
n.2 (M.D. Ga. March 27, 2006); Golden v. Dodge-Markham Co., 1 F. Supp. 2d 1360, 1364-65
(M.D. Fla. 1998); Standridge v. Wal-Mart Stores, Inc., 945 F. Supp. 252, 256-57 (N.D. Ga.
1996)). “On the other hand, settlement offers that provide ‘specific information . . . to
support [the plaintiff’s] claim for damages’ suggest the plaintiff is ‘offering a reasonable
assessment of the value of [his] claim’ and are entitled to more weight.” Id. (citing
Golden Apple Management Co. v. Geac Computers, Inc., 990 F. Supp. 1368 (M.D. Ala. 1998)).
Additionally, because Sears filed its Notice of Removal within thirty days of
receiving the Plaintiff’s initial pleading in this matter, Sears’ Notice of Removal is
6

brought pursuant to Section 1446(b)(1), (doc. 1, ¶¶ 2-3), and the Eleventh Circuit’s
decision in Roe further guides the undersigned’s analysis. See Roe, 613 F.3d at 1061
(distinguishing between Section 1446(b) first-paragraph cases and second-paragraph
cases).2 In Roe, the Eleventh Circuit instructed:
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 [Pretka v. Kolter City Plaza II, Inc.,
608 F.3d 744, 754 (11th Cir. 2010)]. 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[ v. Best Buy Co., Inc.], 269 F.3d [1316,] 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.
Id. at 1061-62 (footnote omitted).
Here, damages are not specified in the Plaintiff’s Complaint. (See doc. 1-1.) The
Plaintiff merely demands “general compensatory and punitive damages in excess of the
2

Congress, through § 1446(b), has established a “bifurcated removal approach,”
Lee v. Lilly Trucking of Va., Inc., No. 2:12–cv–74–MEF, 2012 WL 960989, at *1 (M.D. Ala. Mar. 21,
2012), under which
a state court defendant may remove a case to federal court at two procedurally
distinct moments in time. First, if it is facially apparent from the initial pleading
that subject matter jurisdiction exists, § 1446(b)(1) provides the procedure for
removal. See, e.g., Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir.
2010); Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). Such a
removal must be accomplished “within 30 days after the receipt by the defendant
. . . of a copy of the initial pleading setting forth the claim for relief upon which
such action is based . . . .” § 1446(b)(1). However, “[i]f the case stated by the
initial pleading is not removable, a notice of removal may be filed within 30 days
after receipt by the defendant, through service or otherwise, of a copy of an
amended pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become removable . . . .” §
1446(b)(3); see also Lowery v. Ala. Power Co., 483 F.3d 1184 (11th Cir. 2007).
Id.

7

jurisdictional limits of this Court plus interest and costs.” (Id. at 4, 6.) The Complaint
was filed in the Circuit Court of Mobile County, Alabama, which has jurisdiction over
civil matters where the amount in controversy exceeds $3,000.00. Ala. Code § 12-1130(1). Thus, the Plaintiff’s explicit request for damages in her Complaint clearly fails to
establish that the amount in controversy exceeds $75,000, and Sears must prove by a
preponderance of the evidence that the amount in controversy meets the jurisdictional
threshold.
Sears argues that it can meet its burden by pointing to the injuries alleged by
Plaintiff in her Complaint and the assertions in her settlement demand. The Plaintiff
alleges in her Complaint that, as a result of her fall, she sprained her ankle, developed
right leg deep thrombosis and a pulmonary embolism. (Doc. 1-1, ¶¶ 10, 17.) She also
alleges that her injuries are permanent; that she has suffered, and will continue to
suffer, physical pain and mental anguish; and that she has incurred, and will continue
to incur medical bills and expenses. (Id.) The Plaintiff’s Complaint, however, does not
include specific facts that develop her medical course and explain the severity of her
pulmonary embolism and the extent of her ongoing injuries and medical treatment.
(See id.) Thus, the undersigned has concluded that the allegations of injury do not
provide the Court with sufficient information to determine that the Plaintiff’s injuries
are so serious and extensive that the amount in controversy exceeds $75,000.00. See
Williams v. Best Buy Co., 269 F.3d 1316, 1318, 1320 (11th Cir. 2001) (finding that it was not
facially apparent from the complaint that the amount in controversy exceeded $75,000
even though the plaintiff alleged that, as a result of her fall outside the defendant’s
store, the plaintiff suffered “permanent physical and mental injuries, . . . incurred
substantial medical expenses, suffered lost wages, [] experienced a diminished earning
capacity . . . [and] will continue to experience each of [her] losses for an indefinite time
8

into the future”); Lambeth v. Peterbilt Motors Co., Civil Action No. 12-0169-WS-N, 2012
WL 1712692, at *3 (“While the back injury is characterized as ‘serious,’ nothing in the
Complaint elaborates on the nature or severity of that injury, or otherwise lends
substance or meaning to it. We simply do not know—or have any basis for inferring
from the pleadings—anything about how severe, permanent, debilitating or painful the
injury might be; how extensive, costly, or traumatic the course of treatment was, is or
might be; or whether and to what extent the injury did, does or will constrain [the
plaintiff’s] work or life activities.”); Hill v. Toys “R” Us, Inc., Civil Action No. 10-0404WS-B, 2010 WL 3834532, at *1 (S.D. Ala. Sept. 24, 2010) (remanding case to state court
for failure to prove the amount in controversy where the plaintiff alleged that she
suffered back, neck, arm and head injuries; that she has experienced and continues to
experience pain and suffering, emotional distress, and mental anguish; and that she has
incurred ongoing medical expenses).
The undersigned now turns to the Plaintiff’s settlement demand letter to
determine whether the information provided in that letter establishes that the amount
in controversy exceeds $75,000. In her demand letter, the Plaintiff stated as follows
regarding her injury and her demand:
[Plaintiff] sprained her ankle [as a result of] the fall. Unfortunately, she
would soon develop a pulmonary embolism requiring a six (6) day
hospitalization, which Dr. Pace clearly stated was caused by the initial
ankle trauma. Upon her release from the hospital, [Plaintiff] was
instructed on performing injections to herself to help treat the blood clot.
As a result of same, she developed large, dark bruises which concerned
her to the point she sought help at the ER a day or so after her release.
All of [Plaintiff’s] medical treatment is related and still currently
owed in full, including a lien of $14,265.30 filed by Springhill Memorial
Hospital. Between all of the medical bills incurred, lost wages and tuition,
damages total $24,305.68.
Based on the clear nature of the liability, the extent and severity of
the injuries, associated pain and suffering as well as the mental anguish of
9

such a life or death complication, I’m authorized to demand $115,000, for
a full and final release of [Plaintiff’s] claims against the Defendants in this
matter.
(Doc. 1-3 at 2.) Significantly, the demand letter includes a figure for specific damages in
the amount of $24,305.68—$14,265.30 in medical bills, plus $10,040.38 in lost wages and
tuition. (Id.; see doc. 10, ¶ 22.) Thus, the undersigned must determine whether the
additional damages asserted amount to more than $50,694.32.
With regard to the pulmonary embolism, the Plaintiff indicated that it was
serious enough to require a six-day hospital stay and that her treatment included
injections. (Doc. 1-3 at 2.) However, the Plaintiff did not provide additional details
regarding the severity of the pulmonary embolism or the treatment she underwent
during her hospital stay. (Id.) She stated that she “sought help” from the hospital
emergency room after her release, but she did not provide any information regarding
the treatment she received. (Id.) She also provided no details regarding her sprained
ankle or her deep vein thrombosis. (Id.) Notably, the Plaintiff did not assert that any of
her injuries were permanent, persistent or ongoing in any way. (Id.) Based on the
information in the demand letter, the undersigned could conclude that the Plaintiff’s
injuries have resolved, and that she will no longer incur any medical expenses or lost
wages attributable to the injury in question.
Although the Plaintiff demanded payment of $115,000 to settle this matter, the
demand figure does not determine the amount in controversy. Burns, 31 F.3d at 1097.
The undersigned recognizes that the settlement demand is entitled to some weight
when measuring the preponderance of the evidence. Compare Jackson, 651 F. Supp. 2d at
1281 (assigning little weight to a largely unsupported demand of $155,000 and
construing the demand as posturing for negotiation purposes), with Benandi, 2011 WL
5077403, at *3 (giving more weight to settlement demand letter where the plaintiff
10

stated that his condition had not improved and provided specific details regarding his
medical treatment, including an upcoming surgery, recommended by his treating
physician, and the estimated cost of the surgery and post-surgical treatment), and
Golden Apple Management Co. v. Geac Computers, Inc., 990 F. Supp. 1368 (M.D. Ala. 1998)
(giving more weight to plaintiff’s settlement demand where the plaintiff’s letter
included specific details such as the statement that damages included “software costs,
consultant costs and personnel costs which amount to $105,432”). However, based on
the information provided in the Plaintiff’s demand letter, the undersigned does not find
that the $115,000 demand warrants significant weight. The $14,265.30 in medical bills
and $10,040.38 in lost wages and tuition are the only itemized damages provided. (See
doc. 1-3 at 2.) The Plaintiff bases the remaining $90,694.32 of her demand on “the extent
and severity of the injuries, associated pain and suffering as well as the mental anguish
of such a life or death complication.” (Id.) As stated above, the extent and severity of
Plaintiff’s injuries is unclear based on the few details provided by the Plaintiff in her
Complaint and demand letter.

Furthermore, the Plaintiff’s allegations of mental

anguish are too vague and speculative for the undersigned to find that the Plaintiff’s
demand is a reasonable assessment of the value of her claim. See Mustafa v. Market
Street Mortgage Corp., 840 F. Supp. 2d 1287, 1291 (M.D. Ala. 2012) (concluding that the
Court could not make a non-speculative estimate of the value of the plaintiff’s mental
anguish claim); Goodin v. Fidelity Nat’l Title Ins. Co., No. 3:11–cv–149–J–32JRK, 2012 WL
473913, at *3 (M.D. Fla. Feb. 14, 2012) (finding that “[plaintiff’s] allegations of ‘mental
anguish and stress’ are impermissibly vague”). The undersigned concludes that, while
the Plaintiff’s demand letter includes specific figures for the Plaintiff’s medical bills and
Plaintiff’s total special damages, it most likely is an attempt at posturing for purposes of

11

settlement negotiations.3
The July 12, 2013 report from the Plaintiff’s treating physician, Eddie Pace, M.D.,
provides additional evidence that the Plaintiff’s injuries have not persisted. (Doc. 10-1.)4
Dr. Pace stated that the Plaintiff has fully recovered from her injury and that she will
not require any further care or treatment. (Doc. 10-1.) He also stated that he “[does] not
see any potential long term sequela for [Plaintiff] related to her fall injury.” (Id.) Sears
did not object to Dr. Pace’s report, question his opinions, or provide any contravening
evidence demonstrating that the Plaintiff’s injuries have persisted. (See doc. 13.)
When taking into account the allegations in the Complaint, the information
provided in the Plaintiff’s demand letter, and the information in Dr. Pace’s letter, the
undersigned finds that Sears has not proven by a preponderance of the evidence that
the amount in controversy exceeds $75,000. The undersigned can reasonably conclude
from the evidence presented that the Plaintiff suffered a sprained ankle, resulting in
deep vein thrombosis and a pulmonary embolism.

The Plaintiff also apparently

underwent six days of treatment for her injuries, resulting in $14,265.30 in medical
expenses.

However, the evidence does not establish that the Plaintiff’s injuries

persisted in any way or required any significant treatment beyond the injections
described in the demand letter. As such, when employing the undersigned’s judicial
3

This conclusion is further supported by Plaintiff’s statement in her Motion to
Remand that “[t]he demand was made as a bare-bones attempt to stake out ground for the
purpose of anticipated settlement negotiations.” (Doc. 10, ¶ 24.) The undersigned notes that
Sears has not objected to Plaintiff’s statement in her Motion to Remand regarding the purpose
of her settlement demand. (See doc. 13.) Furthermore, while the undersigned does not rely on
Plaintiff’s statement to reach the conclusion that Plaintiff’s settlement demand constituted
posturing, the undersigned notes that it is permissible for the Court to consider post-removal
clarifications of the amount in controversy, such as the Plaintiff’s statements in its Motion to
Remand. See Jackson, 651 F. Supp. 2d at 1282.
4

Dr. Pace’s report constitutes pre-removal evidence properly considered by the
Court in conjunction with a motion to remand. See Sierminski v. Transouth Financial Corp., 216
F.3d 945, 948-49 (11th Cir. 2000).

12

experience and common sense, the undersigned cannot conclude that the Plaintiff’s
compensatory and punitive damages amount to more than $50,694.32 beyond the
$24,305.68 in special damages asserted by the Plaintiff. Compare McCoy v. The Kroger
Co., Civil Action No. 5:13-CV-393 (MTT), 2013 WL 6584273, at *2 (M.D. Ga. Dec. 16,
2013) (remanding case where plaintiff incurred $12,110.89 in medical expenses for
injuries resulting from a slip and fall, plaintiff demanded $125,000 to settle the matter,
but her pain had decreased substantially and there was no indication of further
treatment), with Henderson v. Dollar General Corp., Civil Action No. 07-0799-CG-M, 2009
WL 959560, at *1-4 (S.D. Ala. April 7, 2009) (finding that the amount in controversy
requirement had been met where the plaintiff’s slip and fall injury resulted in $57,328 in
medical bills and $9,000 in lost earnings, and the defendant presented deposition
testimony in which the plaintiff testified that her knee injury required two surgeries,
that she continued to suffer from pain related to the bulging disks in her neck and back
and that she continued to see her doctor regularly for treatment).
Sears argues that, even if the Plaintiff’s compensatory damages do not exceed
$75,000, when the Plaintiff’s punitive damages claim is considered, “it is clear that the
jurisdictional requirement for removal has been met.”

(See doc. 13 at 6.)

The

undersigned disagrees. While punitive damages claims should be considered when
evaluating whether the value of a case exceeds $75,000, “there is nothing talismanic
about such a demand that would per se satisfy the amount-in-controversy requirement
and trigger federal subject-matter jurisdiction.” Lambeth, 2012 WL 1712692, at *4. Here,
the undersigned cannot estimate the value of the Plaintiff’s punitive damages claims
without engaging in pure speculation.5 See Mustafa, 840 F. Supp. 2d at 1291. It is telling
5

The undersigned recognizes that, in Blackwell v. Great American Financial
Resources, Inc., the Northern District of Alabama found that, where the plaintiff alleged

13

that, in the Plaintiff’s demand letter, she did not attempt to bolster her punitive
damages claim or refer to it in any way. (See doc. 1-3.) Had her punitive damages claim
constituted a significant part of her damages, she likely would have mentioned it.
Moreover, Sears has not placed a value on the punitive damages claim or presented
evidence to aid the Court in determining the value of such a claim. (See doc. 1; doc. 13.)
$23,172.28 in compensatory damages, “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 Clause.” 620 F. Supp. 2d 1289, 1291 (N.D. Ala. 2009) (citations
omitted). Accordingly, that court concluded that the punitive damages claims in that case
established the jurisdictional requirements with regard to the amount in controversy. Id. at
1291-92.
However, the undersigned declines to follow the reasoning in Blackwell and, instead,
follows the reasoning of the Middle District of Alabama in Mustafa, where it declined to apply a
multiplier to the plaintiff’s $19,444.33 in compensatory damages when evaluating the plaintiff’s
mental anguish and punitive damages claims. Mustafa, 840 F. Supp. 2d at 1291-92. In Mustafa,
the Middle District considered the analysis in Blackwell, but determined that it would be
inappropriate for the court to evaluate punitive damages claims by applying multipliers to
compensatory damages claims. Id. The Middle District stated as follows:
This Court finds Blackwell unpersuasive, however, for it fails to put the
burden of proof on the removing party, ignores established precedent, and
undermines the foundational principle that a federal court should construe its
removal jurisdiction narrowly.
First, applying a single digit multiplier
sufficiently high to satisfy the amount-in-controversy requirement, without
more, assumes away the removing party’s burden to prove the propriety of
removal by a preponderance of the evidence. Second, it also ignores the
Eleventh Circuit’s command in Lowery v. Alabama Power Company to look at the
facts supporting a damages assertion, because “the existence of jurisdiction
should not be divined by looking to the stars.” 483 F.3d 1184 (11th Cir. 2007).
Woodenly applying a single digit multiple of the compensatory damages
claimed, without a non-speculative reason to believe the jury would come back
with such an award, violates Lowery’s explicit commands and is not a reasonable
extrapolation from the pleadings under Roe. Third, assuming a punitive
damages award of up to nine times compensatory damages (likely the highest
multiplier that comports with due process) ignores the principle that courts
should construe the remand statutes narrowly so as to resolve jurisdictional
uncertainties in favor of remand. Burns v. Windsor Ins., Co., 31 F.3d 1092, 1095
(11th Cir. 1994). Furthermore, using a multiplier, without more, would trigger
grave federalism concerns: cases with compensatory damages of just $8,333.33
could begin finding their way into federal court, thus usurping the States’
jurisdiction over all but the smallest claims.
Id. Like the court in Mustafa, the undersigned declines to evaluate the Plaintiff’s
punitive damages claim by applying a multiplier to the Plaintiff’s compensatory
damages. Sears did not propose that the Court apply a multiplier, and such a maneuver
would be particularly speculative based on the evidence presented in this case.

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As such, the undersigned finds that, with regard to the punitive damages claim, and in
combination with Plaintiff’s other claims, Sears has failed to establish that the amount in
controversy exceeds $75,000.
Conclusion
Roe’s direction to use “judicial experience and common sense in determining
whether the case stated in a complaint meets federal jurisdictional requirements[,]” 613
F.3d at 1062, is not an invitation to speculate as to amount in controversy. Keeping in
mind the narrow construction afforded the removal statute, Sears must carry its burden
to prove that the value of Plaintiff’s case more likely than not exceeds $75,000. Sears has
failed to carry that burden. Accordingly, after careful consideration of the parties’
briefing and the pleadings, and for the reasons set forth above, it is hereby ORDERED
that the Motion to Remand (doc. 10) be GRANTED and that this matter be
REMANDED to the Circuit Court of Mobile County, Alabama.
DONE and ORDERED this the 7th day of March 2014.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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