Gates v. 84 Lumber Company et al

Filing 72

ORDER granting 42 Motion to Remand to Circuit Court of Clarke County. Signed by Chief Judge William H. Steele on 5/14/2015. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS GATES,

)
)
)
)
) CIVIL ACTION 15-0076-WS-N
)
)
)
)

Plaintiff,
v.
84 LUMBER COMPANY, et al.,
Defendants.

ORDER
This matter is before the Court on the plaintiff’s motion to remand. (Doc.
42). The plaintiff and the removing defendant (“Pneumo Abex”) have filed briefs
and evidentiary materials in support of their respective positions, (Docs. 43, 53,
54), and the motion is ripe for resolution.
Pneumo Abex timely removed this action on the basis of diversity of
citizenship. The complaint names 17 defendants, and the plaintiff does not dispute
that complete diversity existed at the time of removal. (Docs. 18, 39). But the
plaintiff denies that Pneumo Abex has met its burden of proving by a
preponderance of the evidence that the amount in controversy more likely than not
exceeds $75,000, exclusive of interest and costs. (Doc. 43 at 7).
The complaint alleges that, as a result of exposure to asbestos, the plaintiff
has been “diagnosed with an asbestos related disease”; that exposure to asbestos
fibers can cause “irreparable, progressive, and deadly tissue damage which can
manifest itself as … lung cancer”; that he was exposed to, and inhaled, these fibers
for over 40 years; that as a consequence he developed “the asbestos-related disease
aforesaid,” which “has disabled and disfigured” him; that he has “become liable
for large sums of monies for hospital, medical, and other healthcare services
necessary for the treatment of his asbestos-induced disease and conditions”; that

he “has experienced great physical pain and mental anguish … as a result of his
asbestos-induced disease and conditions”’; and that he “has been hindered and
prevented from pursuing his normal course of employment, thereby losing large
sums of money which otherwise would have accrued him [sic].” (Doc. 1-1 at 7-8,
22-23). Pneumo Abex has also presented as evidence the plaintiff’s interrogatory
responses from a previous lawsuit in which he states that he developed lung cancer
in 2011 due to his exposure to asbestos products, including those of the
defendants. (Doc. 39-1 at 13-14).
In the face of this mountain of material from the plaintiff’s own pen, his
contention that Pneumo Abex has not carried its burden is but a grasping at straws.
He says that his being “disabled and disfigured” is too vague a condition to
suggest a significant amount of damage, that “great” physical pain and mental
anguish could be mere trifles, that “large” medical bills and lost earnings could
easily mean almost no loss at all, and that his lung cancer “do[es] not provide any
further basis” for establishing the amount in controversy. (Doc. 43 at 9-10; Doc.
54 at 4-5).1
As the plaintiff concedes, (Doc. 43 at 8), a court may find the jurisdictional
threshold satisfied based on “evidence combined with reasonable deductions,
reasonable inferences, or other reasonable extrapolations.” Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010). Among the tools a court may
employ are “judicial experience and common sense,” Roe v. Michelin North
America, Inc., 613 F.3d 1058, 1064 (11th Cir. 2010), and the removing defendant
can certainly rely on these tools in assessing the allegations of the complaint itself.
1

Ignoring Pneumo Abex’s discussion of Dart Cherokee Basin Operating
Company v. Owens, 135 S. Ct. 547 (2014), the plaintiff also “objects to Defendant’s
belated introduction of evidence” in opposition to his motion to remand. Dart Cherokee
on its face nullifies the plaintiff’s objection. See id. at 544 (“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.”).
2

E.g., Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). While it
may be theoretically possible that a demand for damages for disability,
disfigurement, lung cancer, great physical pain, great mental anguish, large
medical bills and large amounts of lost income places less than $75,000 in
controversy, the plaintiff’s allegations and interrogatory response, combined with
the reasonable deductions, inferences and extrapolations therefrom and viewed
through the lens of judicial experience and common sense, make it abundantly
clear that Pneumo Abex has demonstrated by a preponderance of the evidence that
the amount in controversy exceeds the jurisdictional threshold.
After briefing on the motion to remand concluded, the plaintiff obtained
dismissal without prejudice of all defendants but one, some by joint motion and
some by notice of voluntary dismissal. (Docs. 56, 59, 60, 63, 67). The sole
remaining defendant is Norfolk Southern Railway Company (“Norfolk”), and the
sole claim against Norfolk is under FELA. (Doc. 1-1 at 12, 14, 16-18, 21). Such
an action “may not be removed to any district court of the United States.” 28
U.S.C. § 1445(a). The plaintiff and Pneumo Abex agree that the FELA claim
must be remanded based on Section 1445(a)2 but disagree as to whether the entire
action must be remanded along with it.3 The Court need not wade into that
thicket, since only the FELA claim remains.
For the reasons set forth above, the plaintiff’s motion to remand is granted.
This action, now consisting only of one FELA claim against Norfolk, is
remanded to the Circuit Court of Clarke County.
DONE and ORDERED this 14th day of May, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
2

E.g., Gamble v. Central of Georgia Railway Co., 486 F.2d 781 (5th Cir. 1973).

3

Norfolk has filed nothing concerning the issue.
3