Jones v. Marriott International, Inc.

Filing 10

ORDER REMANDING CASE to Circuit Court of Mobile County, AL. Signed by Magistrate Judge Katherine P. Nelson on 5/22/18. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ZINA JONES,
Plaintiff,
v.
MARRIOTT INTERNATIONAL,
INC., SABRINA LE, et al.,
Defendants.

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) CIVIL ACTION NO. 18-00171--N
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ORDER

This matter comes before the Court on sua sponte review. In accordance with
provisions of 28 U.S.C. §636(c) and Fed.R.Civ.P. 73, the parties in this case have
consented to have the undersigned 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. (Doc. 9). As discussed herein, the
undersigned has determined that subject matter jurisdiction is lacking and this
matter is due to be REMANDED to the Circuit Court of Mobile County, Alabama.1
I.

Background

This action, originally filed by Plaintiff Zina Jones (“Plaintiff”), was removed
to this Court from the Circuit Court of Mobile County, Alabama, by Defendants

“It is . . . axiomatic that the inferior federal courts are courts of limited jurisdiction. They are
‘empowered to hear only those cases within the judicial power of the United States as defined by Article
III of the Constitution,’ and which have been entrusted to them by a jurisdictional grant authorized
by Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor
v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Accordingly, “it is well settled that a federal court
is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.” Id. at
410. “[A] court should inquire into whether it has subject matter jurisdiction at the earliest possible
stage in the proceedings.” Id. See also Arbaugh v. Y&H Corp., 546 U.S. 500, 514, (2006) (“[C]ourts,
including this Court, have an independent obligation to determine whether subject-matter jurisdiction
exists, even in the absence of a challenge from any party.”).
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Marriott International, Inc. and Sabrina Le (“Defendants”)2 under 28 U.S.C. §
1441(a). (See Doc. 1). In the Notice of Removal (Doc. 1), Defendants allege diversity
of citizenship under 28 U.S.C. § 1332(a) as the sole basis for the Court’s subject matter
jurisdiction. See 28 U.S.C. § 1446(a) (“A defendant or defendants desiring to remove
any civil action from a State court shall file in the district court of the United States
for the district and division within which such action is pending a notice of
removal…containing a short and plain statement of the grounds for removal…”).
Where, as here, a case is removed from state court, “[t]he burden of
establishing subject matter jurisdiction falls on the party invoking removal.” Univ.
of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 411–12 (11th Cir. 1999). Accord,
e.g., City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012)
(“The removing party bears the burden of proof regarding the existence of federal
subject matter jurisdiction.”). “A defendant may remove an action to a district court
that would have original jurisdiction if complete diversity between the parties exists
and the amount in controversy exceeds $75,000.” City of Vestavia Hills, 676 F.3d at
1313 (citing 28 U.S.C. § 1332).
The undersigned previously determined that the Notice of Removal failed to
sufficiently demonstrate that the amount in controversy “exceeds the sum or value of

2 The Complaint also names a number of fictitious defendants. The undersigned’s use of “Defendants”
in this order refers to defendants Marriott International, Inc. and Sabrina Le, who join in removal of
this action. Though the Notice of Removal’s “Removing Defendant” section lists only Defendant
Marriott International, Inc. the Notice of Removal was filed on behalf of both Marriott International,
Inc. and Sabrina Le. Accordingly, the undersigned is satisfied that all defendants have joined in the
removal. See 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a),
all defendants who have been properly joined and served must join in or consent to the removal of the
action.).

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$75,000, exclusive of interest and costs…” 28 U.S.C. § 1332(a) (Doc 5). To meet the
amount in controversy requirement, the removing defendant must demonstrate that
the amount in controversy likely exceeds the court's jurisdictional threshold:
Where the complaint does not expressly allege a specific amount in
controversy, removal is proper if it is facially apparent from the
complaint that the amount in controversy exceeds the jurisdictional
requirement. If the jurisdictional amount is not facially apparent from
the complaint, the court should look to the notice of removal and may
require evidence relevant to the amount in controversy at the time the
case was removed ... 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.
Williams v. Best Buy Co., 269 F.3d 1316, 1319-20 (11th Cir. 2001).
The Complaint does not contain a demand for a specific sum. (Doc. 1-1 at 3-8).
Defendants have claimed that it is apparent from the face of the Complaint, “[g]iven
the nature of the claimed permanent personal injuries, psychological injuries, loss of
enjoyment of life, and the demand for punitive damages[,]” that the amount in
controversy requirement is satisfied. (Doc. 1 at 10). As the Court previously held,
these allegations, however, do not make § 1332(a) requisite amount in controversy
“facially apparent” from the complaint. See Williams, 269 F.3d at 13183; See also
Collinsworth v. Big Dog Treestand, Inc., 2016 WL 3620775 at *1, *3 (S.D. Ala. June

3 “Williams filed a complaint in the State Court of Fulton County, Georgia, alleging that she tripped
over a curb while entering one of Best Buy's retail stores and sustained injuries as a result of Best
Buy's negligence. In addition to permanent physical and mental injuries, the complaint alleges that
Williams incurred substantial medical expenses, suffered lost wages, and experienced a diminished
earning capacity. The complaint then alleges that Williams will continue to experience each of these
losses for an indefinite time into the future. For these injuries, the complaint seeks general damages,
special damages, and punitive damages in unspecified amounts…[I]t is not facially apparent from
Williams' complaint that the amount in controversy exceeds $75,000.”

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29, 2016)(finding general listing of categories of damages did not satisfy amount in
controversy requirement).4 (Doc. 5).
On April 18, 2018, after reviewing the filings, the undersigned entered an order
(Doc. 5) directing the Defendants to brief the question of amount in controversy for
purposes of enabling the Court to determine whether diversity jurisdiction was
present. Defendants were cautioned that failure to meet their burden with regard to
establishing subject matter jurisdiction may result in remand of this matter. (Doc. 5
at 3-4). Defendants Marriott International, Inc. and Sabrina Le have briefed the
issue. (Doc. 6).
II.

Analysis

Pursuant to § 1332, federal courts have original jurisdiction over all civil
actions between citizens of different states where the amount in controversy exceeds
the sum or value of $75,000, exclusive of interest and costs. See Underwriters at
Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079, 1085 (11th Cir. 2010) (“For federal
diversity jurisdiction to attach, all parties must be completely diverse ... and the
amount in controversy must exceed $75,000.”) (citations omitted). “In light of the
federalism and separation of powers concerns implicated by diversity jurisdiction,
federal courts are obligated to strictly construe the statutory grant of diversity

“In general, to satisfy the jurisdictional amount a plaintiff's claims against a defendant may be
aggregated. However, if these claims are alternative bases of recovery for the same harm under state
law, the plaintiff could not be awarded damages for both, and a court should not aggregate the claims
to arrive at the amount in controversy.” SUA Ins. Co. v. Classic Home Builders, LLC, 751 F. Supp. 2d
1245, 1252 (S.D. Ala. 2010) (Steele, C.J.) (citation and quotation omitted). Accord Jones v. Bradford,
Civil Action No. 17-0155-WS-N, 2017 WL 2376573, at *2 (S.D. Ala. June 1, 2017) (Steele, J.) (“No
aggregation of claim-by-claim valuations may be done to reach the jurisdictional threshold if the claims
presented are alternative bases of recovery for the same harm.”).
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jurisdiction ... [and] to scrupulously confine their own jurisdiction to the precise limits
which the statute has defined.” Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1268
(11th Cir. 2000) (citations omitted).5
Congress, through § 1446(b), has established a “bifurcated removal approach,”
under which a state court defendant may remove a case to federal court at two
procedurally distinct moments in time. Lee v. Lilly Trucking of Va., Inc., 2012 WL
960989, at *1 (M.D.Ala. Mar. 21, 2012).
First, if it is facially apparent from the initial pleading that subject
matter jurisdiction exists, § 1446(b)(1) provides the procedure for
removal. 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)[.]
Id. (internal citations omitted).
“The first way (formerly referred to as ‘first paragraph removals’) involves civil
cases where the jurisdictional grounds for removal are apparent on the face of the
initial pleadings. See 28 U.S.C. § 1446(b)(1). The second way (formerly referred to as
‘second paragraph removals’) contemplates removal where the jurisdictional grounds
later become apparent through the defendant’s receipt of ‘an amended pleading,

5 The Notice of Removal alleges that Plaintiff is a citizen of Georgia, Defendant Marriott International,
Inc. is a citizen of Delaware and Maryland, and Defendant Sabrina Le (“Defendant Le”) is a citizen of
Alabama. (Doc. 1).5 While Plaintiff and Defendants are completely diverse, Defendants argue that
Defendant Le was fraudulently joined. However, complete diversity is present with or without
Defendant Le’s presence.

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motion, order or other paper from which it may first be ascertained that the case is
one which is or has become removable.’ 28 U.S.C. § 1446(b)(3).” Jones v. Novartis
Pharm. Co., 952 F. Supp. 2d 1277, 1281-82 (N.D. Ala. 2013)(footnote omitted). “The
now-defunct distinction between ‘first paragraph’ and ‘second paragraph’ removals is
rendered obsolete by a clearer version of the removal statute, as amended by the
Federal Courts Jurisdiction and Venue Clarification Act of 2011, PL 112–63,
December 7, 2011, 125 Stat. 758, which added subsections to 28 U.S.C. § 1446(b). The
substance of the removal procedure is not affected by the stylistic changes to the
statute; therefore, the previous case law discussing ‘first paragraph’ and ‘second
paragraph’ removals is still applicable despite its outdated terminology.” Id. at 1281
n. 3.
Defendants’ removal was pursuant to 28 U.S.C. § 1446(b)(1), i.e. a “first
paragraph removal.” (Doc. 1 at 4). The Complaint does not include a specific damages
demand. In Roe v. Michelin North America, Inc., the Court of Appeals for the Eleventh
Circuit summarized its precedent with regard to first paragraph cases in which the
plaintiff does not make a specific damages demand as follows:
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.” 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). In some cases, this
burden requires the removing defendant to provide additional evidence
demonstrating that removal is proper. See, e.g., Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744 (11th Cir.2010). In other cases, however, 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

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(quoting Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th
Cir.2001)).
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 relevant information.”).
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 jurisdictional
requirements. This approach is consistent with those of other circuits.
613 F.3d 1058, 1061–62 (11th Cir. 2010)(footnotes omitted).
As the removing parties, the Defendants bear the burden of showing by a
preponderance of the evidence that the amount-in-controversy threshold is satisfied.
See Dudley v. Eli Lilly and Co., 778 F.3d 909, 913 (11th Cir. 2014) (“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.”). That said, defendants are “not required to prove the

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amount in controversy beyond all doubt or to banish all uncertainty about it.” Pretka
v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010). Rather, Defendants
may meet their burden by showing either that it is “facially apparent from the
pleading itself that the amount in controversy exceeds the jurisdictional minimum,”
or that there is “additional evidence demonstrating that removal is proper.” Roe v.
Michelin North America, Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (citations
omitted). What defendants may not do, however, is resort to “conjecture, speculation,
or star gazing” to show that the jurisdictional threshold is satisfied. Pretka, 608 F.3d
at 754. In evaluating the sufficiency of a removing defendant's jurisdictional showing,
courts need not “suspend reality or shelve common sense,” but instead “may use their
judicial experience and common sense in determining whether the case stated in a
complaint meets federal jurisdictional requirements.” Roe, 613 F.3d at 1062.
The issue before the Court is whether the facts, as they stood on the date of
removal on April 11, 2018, prove by a preponderance of the evidence that the amount
in controversy more likely than not exceeds the jurisdictional requirement. In
response to the Court’s order, Defendants have submitted an August 21, 2017
demand letter from Plaintiff Zina Jones (“Plaintiff’). (Doc. 6-1). The letter, which
demands $1,000,000, states in part:
On the evening of, March 11, 2016, our client, Zina Jones, was outside
of the Marriott hotel in Mobile, Alabama located at 3101 Airport
Boulevard. Ms. Jones sat on a bench at the Marriot and it immediately
gave way causing her to fall to the ground with significant impact. She
did file an accident report with Marriot the night of the incident. As a
consequence of the above noted incident, Ms. Jones incurred substantial
injuries.

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(Doc. 6-1 at 3). The letter also contains the following breakdown of damages:
Premier Orthopedics

$3,653.45

Cervical Laminectomy Estimate
Lumbar Laminectomy Estimate
Peachtree Spine Physicians
Piedmont Henry Hospital
ER Physicians
Dr. Edward Mack
Henry County Radiology Assoc.
MedChex for Benchmark Phys. Therapy & AHI
Pain and Wellness Centers of GA
Whiplash Injury Center
Key Health for American Health Imaging

$195,966.55
$175,349.15
$8,558.00
Will Supplement
Will Supplement
$400.00
$74.00
$12,921.50
$3,250.00
$7,160.00
$4,595.00

(Doc. 6-1 at 4 emphasis added).
The amount requested in a settlement demand does not determine whether
the amount in controversy exceeds $75,000, but “it counts for something.” Burns v.
Windsor Ins. Co., 31 F.3d 1092, 1097 (11th Cir. 1994). “Settlement offers commonly
reflect puffing and posturing, and such a settlement offer is entitled to little weight
in measuring the preponderance of the evidence.” Jackson v. Select Portfolio Serv.,
Inc., 651 F. Supp. 2d 1279, 1281 (S.D. Ala. 2009) (citing Hall v. CSX Transp., Inc.,
No. 3:06–CV–37–WKW, 2006 WL 3313682 at *3 n.5 (M.D. Ala. Nov. 14, 2006)). “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.” Standridge
v. Wal–Mart Stores, Inc., 945 F. Supp. 252, 256–57 (N.D. Ga. 1996) (citing Golden
Apple Mgmt. Co. v. Geac Computers, Inc., 990 F. Supp. 1368 (M.D. Ala. 1998)).

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At first blush, it appears based on the damage amounts described in the
breakdown quoted above, that the amount in controversy is satisfied. However,
removing the “estimates” which both independently exceed the amount in
controversy, the remaining sums total roughly $41,000. The demand letter does not
contain facts from which an assessment of damages could be reasonably inferred.
Rather, the demand letter requests $1,000,000 and the two amounts listed for
“laminectomy estimate[s]” (195,966.55 and $175,349.15) are just that. Estimates.
This is not to say that estimates are not relevant to an amount in controversy
determination. Here, however, there is no indication that these amounts are actually
“in controversy” as there is no explanation or information indicating that these
procedures or any others took place, nor are there any descriptions of the injuries
requiring these procedures. Further, the injuries and damages alleged are described
in a general matter without any specificity as to the injuries or their severity. (Doc.
6-1 at 3).
The demand letter was dated roughly seven and a half months before this
matter was removed. Yet, it is the only evidence presented by Defendants in support
of satisfying the amount in controversy. While the temporal gap between the demand
letter and the date of removal does not render the demand letter useless, given that
this is the only evidence submitted in support of establishing the amount in
controversy, it is a factor to be considered. Though Defendants have indicated that
the damages amounts were to be supplemented, they have not provided any

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additional information establishing the amount in controversy other than this letter,
despite alluding to receipt of additional information. For example, Defendants state:
Plaintiff’s actual injuries that allegedly stemmed from this matter
include, but are not limited to, disc herniations from L3-L4 to L5-S1 that
resulted in a cervical discectomy and neural decompression (DND)
procedure. Since a protective order has not yet been issued in this
ma[t]ter, and since the injuries have been described by the Demand
Letter, Defendants are not attaching the Plaintiff’s actual records as
exhibits on this filing as to prevent any identifying private information
from being posted to Pacer. If necessary, Defendants will supplement
Plaintiff’s medical records upon an appropriate order.
(Doc. 6 at 3). However, the demand letter does not describe Plaintiff’s injuries with
this specificity and Defendants have not provided any information with regard to the
impact of these procedures on the amount in controversy, which could have been done
without submitting private medical information. Defendants argue:
Here, satisfaction of the amount in controversy requirement was not
facially apparent from Plaintiff’s Complaint. However, evidence beyond
the Complaint shows the amount in controversy requirement is clearly
met. In Plaintiff’s initial demand letter, Plaintiff sought $1,000,000.00.
(See Demand Letter, p. 3, attached hereto as Exhibit A). Further, the
demand letter stated an itemized list of damages to date, totaling
$411,927.65. Id at 2-3. This number was not a total amount of damages
incurred up to the date of the demand letter, as the letter stated
additional damages will be supplemented. Id. Further, noneconomic
damages were included in the demand letter, including “significant pain
and suffering, as well as emotional distress … loss of amenity, physical
impairment, and an overall lowered quality of life due to this incident.”
Id.
(Doc. 6 at 2-3).
Defendants’ arguments invite the Court to speculate as to the amounts
requested “significant pain and suffering, as well as emotional distress … loss of
amenity, physical impairment, and an overall lowered quality of life due to this
incident.” The undersigned declines to do so.

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In this case, the settlement letter does not reflect a reasonable estimate of the
actual value of Plaintiff's claims, and does not support Defendants’ argument that
the amount in controversy in this case exceeds $75,000. “[R]emoval statutes are
construed narrowly; where plaintiff and defendant clash about jurisdiction,
uncertainties are resolved in favor of remand.” Burns, 31 F.3d at 1095. As set out
above, the Eleventh Circuit has said, “[w]hile [a] settlement offer, by itself, may not
be determinative, it counts for something.” Burns, 31 F.3d at 1097. In determining
what that “something” is, courts draw distinctions between settlement offers steeped
in puffery and posturing at a high level of abstraction, on the one hand, and those
yielding particularized information and a reasonable assessment of value, on the
other. See, e.g., Jackson, 651 F. Supp. 2d at 1281 (“Settlement offers commonly reflect
puffing and posturing, and such a settlement offer is entitled to little weight in
measuring the preponderance of the evidence.”); Diaz v. Big Lots Stores, Inc., 2010
WL 6793850, at *2 (M.D. Fla. Nov. 5, 2010) (“The evidentiary value of a settlement
offer in establishing the amount in controversy depends on the circumstances of the
offer.”); Hall, 2006 WL 3313682, at *2 n.5 (“despite the court's consideration of
Plaintiff's pre-removal settlement offer ... Defendant has not persuaded this court
that Plaintiff's settlement demand was an honest assessment of damages.”). Because
it appears Plaintiff’s August 21, 2017 demand letter submitted by Defendants
exemplifies what appears to be puffery and posturing, its evidentiary value is
significantly diminished. Thus, the settlement demand letter, which is all Defendants
have submitted in support of establishing the amount in controversy, does not
establish by a preponderance of the evidence that the Plaintiff's claims exceed the

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jurisdictional amount. Accordingly, this Court lacks subject matter jurisdiction
pursuant to § 1332(a) and remand is required.
III.

Conclusion

As Defendants have failed to meet their burden with regard to establishing the
amount in controversy, and any uncertainties should be resolved in favor of remand,
this matter is REMANDED to the Circuit Court of Mobile County, Alabama. Burns
v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (citations omitted) superseded
by statute on other grounds as stated by Burnett v. Regions Bank, 2016 WL 1644182
(M.D. Fla. 2016).
DONE and ORDERED this the 22nd day of May 2018.
/s/Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

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