Crocker v. LifeSouth Community Blood Centers, Inc.

Filing 12

Order - This action is REMANDED to the Circuit Court of Perry County, Alabama for want of federal jurisdiction. Signed by Chief Judge William H. Steele on 2/23/2016. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
CARL CROCKER,
Plaintiff,
v.
LIFESOUTH COMMUNITY BLOOD
CENTERS, INC., et al.,
Defendants.

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CIVIL ACTION 15-0619-WS-B

ORDER
This recently removed matter comes before the Court sua sponte. On December 16,
2015, the undersigned entered an Order directing the parties to submit supplemental briefs
“confined to jurisdictional issues relating to the amount in controversy.” (Doc. 4, at 2.) The
parties having complied with that directive (see docs. 10, 11), the jurisdictional issue is now ripe
for disposition.1
I.

Background.
Plaintiff, Carl Crocker, filed a Complaint against LifeSouth Community Blood Centers

and various fictitious defendants in the Circuit Court of Perry County, Alabama. In his
Complaint, Crocker asserted a half-dozen state law tort claims against LifeSouth, advancing
theories of negligence, wantonness, outrage, invasion of privacy, negligent hiring/ training/
retention/ supervision, and “zone of danger.” All of those causes of action stem from an incident
on September 17, 2015, when Crocker gave blood at a mobile blood unit operated and
administered by LifeSouth.
1

Defendant’s memorandum of law does not comport with formatting specifications
of the Local Rules, which require that “text must be double-spaced” in papers presented for
filing. General L.R. 5(a)(1). Defendant’s filing also runs afoul of the requirement that “[f]ont
must be 12 point or larger, including footnotes.” General L.R. 5(a)(2) (emphasis added).
Notwithstanding these defects, the Court in its discretion will accept and consider defendant’s
submission in its current form.

In his pleading, Crocker complains that LifeSouth conducted the September 17 blood
drive improperly in numerous respects, including the following: (i) LifeSouth did not conduct
reasonable screening procedures before drawing his blood; (ii) LifeSouth administered the blood
drive even though its premise (i.e., that if Crocker and other offenders gave blood, they would
receive credit towards unpaid court fines and community service obligations) violated company
policies and national standards; (iii) the LifeSouth nurse/technician who collected Crocker’s
blood spattered his blood across other uncovered (and possibly used) needles on the table next to
his arm, placing Crocker in danger of contamination; (iv) LifeSouth technicians did not change
their gloves after each donation; and (v) LifeSouth ultimately discarded all blood donated during
the September 17 drive, presumably in recognition of the lack of proper screening procedures
and the attendant risk of contamination. Based on these allegations, Crocker contends that he
“suffered severe emotional distress, anxiety and anguish … after learning that the proper
screening procedures were not in place and then later learning that the blood was potentially
contaminated and therefore discarded.” (Complaint, ¶ 19.) Elsewhere in the Complaint, Crocker
indicates that he “will suffer from this incident for the remainder of his life.” (Id., ¶¶ 29, 38, 46.)
No physical injuries are identified in the pleading and it does not appear that Crocker has sought
out or received medical treatment of any kind in the wake of the September 17 incident; rather,
plaintiff’s injuries are apparently confined to mental anguish, anxiety and distress arising from
his “rational fear of getting sick from contaminated blood or needles.” (Id., ¶ 56.)
The Complaint does not quantify the damages sought. Instead, plaintiff’s “Prayer for
Relief” contains only general references to damages “in excess of the jurisdictional minimum” of
the Perry County Circuit Court;2 “[m]edical, incidental, hospital and service expenses” that do
not appear to have been incurred; unspecified “[m]edical monitoring” expenses that likewise
appear not to have been incurred; unspecified “[p]unitive and exemplary damages;” and
“[a]ttorney’s fees, expenses and costs,” although Crocker identifies no legal theory that might
support a colorable argument for fee-shifting. (Id., at 9-10.)
On December 8, 2015, LifeSouth filed a Notice of Removal (doc. 1) in this District
Court, predicating subject-matter jurisdiction on the diversity provisions of 28 U.S.C. § 1332. In
2

By the plain language of Alabama Code § 12-11-30(1), that amount is $6,000,
exclusive of interest and costs.

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so doing, LifeSouth maintained that the threshold jurisdictional amount in controversy prescribed
by § 1332 is satisfied here. (Doc. 1, ¶¶ 13-14.) This Order scrutinizes that assertion.
II.

The Amount in Controversy Issue.
A removing defendant must establish the propriety of removal under 28 U.S.C. § 1441

and, therefore, must demonstrate the existence of federal jurisdiction. See Friedman v. New York
Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (“[i]n removal cases, the burden is on the
party who sought removal to demonstrate that federal jurisdiction exists”) (citation omitted);
Sammie Bonner Const. Co. v. Western Star Trucks Sales, Inc., 330 F.3d 1308, 1310 (11th Cir.
2003) (“Because Western Star sought removal to federal court, it bore the burden of proving that
Bonner’s claims satisfied the minimum amount in controversy requirement.”). Because removal
infringes upon state sovereignty and implicates central concepts of federalism, removal statutes
must be construed narrowly, with all doubts resolved in favor of remand. See University of
South Alabama v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999) (explaining that
strict construction of removal statutes derives from “significant federalism concerns” raised by
removal jurisdiction).
There being no federal question presented in the Complaint, LifeSouth’s Notice of
Removal hinges on diversity of citizenship. Under 28 U.S.C. § 1332(a), 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 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).
LifeSouth (as the removing party) bears the burden of showing that the amount in
controversy 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, it is well settled that LifeSouth “is not required to prove the amount in

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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, LifeSouth may meet its 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 LifeSouth 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 (citations omitted).
In support of removal, LifeSouth minimizes its burden by selectively quoting Supreme
Court precedent for the proposition that “a defendant’s notice of removal need include only a
plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Dart
Cherokee Basin Operating Co., LLC v. Owens, --- U.S. ----, 135 S.Ct. 547, 554, 190 L.Ed.2d 495
(2014). (See doc. 11, at 2-3.) But LifeSouth overlooks the very next sentence of the Dart
Cherokee opinion, which reads, “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 (emphasis added). The December 16 Order
specifically and directly questioned LifeSouth’s allegation in its Notice of Removal that the
amount in controversy exceeds the jurisdictional threshold; therefore, LifeSouth cannot satisfy its
burden of proof by citing Dart Cherokee and representing that it has made a “plausible
allegation” of jurisdictional sufficiency. This Court having questioned that allegation, more is
required.
In both the Notice of Removal and the supporting brief, LifeSouth relies heavily on
Crocker’s demand for punitive damages, and touts the fact that “Alabama juries routinely award
punitive damages in excess of the $75,000 amount in controversy threshold.” (Doc. 1, at 7; see
also doc. 11, at 3.) But a claim for punitive damages in a negligence / wantonness case does not
automatically, necessarily vault the amount in controversy over the § 1332 jurisdictional
threshold. As this Court has previously observed, a “plaintiff’s claim for punitive damages is
properly considered in the evaluation of whether defendants have shown that the amount in

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controversy exceeds $75,000. But 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 v. Peterbilt Motors Co., 2012 WL 1712692, *4 (S.D. Ala. May 15,
2012).3 What is it about Crocker’s particular demand for punitive damages that renders its value
so substantial as to surpass the amount-in-controversy threshold? Defendant does not say.
Instead, defendant merely cites three factually inapposite cases for the proposition that Alabama
juries may award large punitive damage awards even where compensatory damages are minimal.
Thus, the removing defendant has made no showing as to the amount of punitive damages at
stake that might allow this Court to estimate the value of Crocker’s claims without engaging in
unvarnished speculation.4
3

See also McRae v. Ellis, 2015 WL 6694029, *4 (S.D. Ga. Oct. 2, 2015) (“there is
no clear estimate as to the amount of punitive damages, and the Court declines to speculate when
determining the amount in controversy”); Earl v. Diebold, Inc., 2015 WL 789763, *5 (S.D. Ala.
Feb. 25, 2015) (plaintiff’s “demand for both compensatory and punitive damages … [does] not
render it facially apparent that the amount in controversy in this case exceeds $75,000, exclusive
of interest and costs”) (footnotes omitted); Scott v. Ford Motor Co., 2015 WL 505674, *5 n.3
(S.D. Ala. Feb. 6, 2015) (“Although Plaintiff seeks punitive damages in this case, … the Court is
not convinced that this proves that the amount in controversy exceeds $75,000.”); Dean v. Sears,
Roebuck and Co., 2014 WL 900723, *6 (S.D. Ala. Mar. 7, 2014) (“Here, the undersigned cannot
estimate the value of the Plaintiff’s punitive damages claims without engaging in pure
speculation.”); George v. Wells Fargo Bank, N.A., 2014 WL 61487, *3 (S.D. Fla. Jan. 8, 2014)
(“Merely by including a prayer for punitive damages does not meet the amount in controversy
requirement.”); Musgrove v. Kellogg Brown and Root, LLC, 2013 WL 1827583, *5 (S.D. Ala.
Apr. 29, 2013) (“[n]ot having been provided any estimate as to compensatory damages, the
Court is ill-equipped to speculate as to any punitive damages award” for amount-in-controversy
purposes) (citation omitted); Keach v. Poole, 2013 WL 441082, *3 (S.D. Ala. Feb. 5, 2013)
(“Armory Mobile emphasizes that the complaint also demands punitive damages, but this is not
particularly helpful absent a demonstration – as yet lacking – that … the alleged conduct is
sufficiently egregious to allow prediction that the amount of punitive damages in controversy is
sufficient”); SUA Insurance Co. v. Classic Home Builders, LLC, 751 F. Supp.2d 1245, 1255
(S.D. Ala. 2010) (“The Court is not free simply to assume … that the Whites are likely to be
awarded substantial punitive damages ….”).
4

To be sure, LifeSouth says that Crocker “emphasizes that his fear of contracting
HIV deserves $4 million, or a comparable sum, in damages.” (Doc. 11, at 4.) But that is not a
fair characterization of the Complaint. In Paragraph 18 of his pleading, Crocker alleges that “[a]
Montgomery County couple was awarded $4 million dollars [sic] for an incident in which an
individual was given HIV-tainted blood during open heart surgery,” and LifeSouth had been the
defendant in that case because it “did not properly screen/test the blood.” (Complaint, ¶ 18.)
This paragraph, taken as a whole, does not support a reasonable reading that Crocker is
(Continued)
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The point is reinforced by the paucity of indications that Crocker suffered substantial
quantifiable compensatory damages. Indeed, the Complaint identifies no physical injuries, no
adverse medical diagnosis, no out-of-pocket expenses that Crocker incurred as a result of
LifeSouth’s purportedly tortious activity. While LifeSouth hangs its hat on generic allegations
that Crocker “suffered severe emotional distress, anxiety and anguish,” and that he “will suffer
from this incident for the remainder of his life,” there are no facts in the Complaint that would
support quantifying those “soft” damages at a substantial level. Again, Crocker does not allege
that LifeSouth made him sick, caused him to contract an illness, exposed him to the HIV virus,
or anything of the sort. He does not even allege that he ever visited a doctor. Rather, the
gravamen of the Complaint is that LifeSouth used risky and careless procedures in conducting a
blood drive, making Crocker fearful and upset. Given the Eleventh Circuit’s directives that (i)
the amount in controversy cannot be satisfied by conjecture or speculation and (ii) district courts
may use judicial experience and common sense in evaluating whether jurisdictional requirements
are satisfied, the Court readily concludes that LifeSouth has not met its burden here. Plaintiff’s
allegations of mental anguish and emotional distress are too vague, too speculative to support a
judicial determination that Crocker’s claims surpass the jurisdictional threshold. We have no
facts to show the extent or severity of Crocker’s emotional distress for what appears to have been
a mere transitory fear of contamination resulting from his observation of imprudent or unwise
practices when he participated in the blood drive.
In the end, LifeSouth, as the removing defendant, simply has not met its burden of
showing that the § 1332 amount-in-controversy requirement is satisfied. Again, binding
precedent teaches that this requirement is met when it is facially apparent from the pleading that
the amount in controversy exceeds $75,000, or when additional evidence demonstrates that
removal is proper. LifeSouth offers no additional evidence, but travels exclusively under the
“facially apparent” prong. Boiled down to its essence, Crocker’s Complaint alleges that
LifeSouth conducted a blood drive in an unsafe and improper manner, causing Crocker to suffer
demanding “$4 million, or a comparable sum,” in this case. Rather, it appears that the point of
Paragraph 18 is not to quantify a particular damages demand, but to underscore LifeSouth’s
culpability by showing that it knew of the importance of proper screening and testing blood
donations, yet failed to do so here. Defendant’s attempt to construe Paragraph 18 as a disguised
ad damnum clause indulges in a leap of logic unsupported by the text of the pleading itself.

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distress. The Complaint does not allege that Crocker contracted or was actually exposed to HIV
virus or any communicable disease, that he ever came into contact with contaminated needles or
blood, or even that he sought out any medical care whatsoever. At most, the Complaint merely
alleges that LifeSouth did not use best practices because LifeSouth failed to prescreen
prospective donors, the technician failed to change gloves after each use, other needles were
nearby, and it was improper to conduct a blood drive that traded offenders’ blood donations for
sentencing credits. From these well-pleaded facts in the Complaint, it is not facially apparent
that the amount in controversy exceeds $75,000. The Court, relying on judicial experience and
common sense, could not conclude otherwise without engaging in impermissible speculation.
III.

Conclusion.
In sum, LifeSouth has failed to meet its burden of showing that removal jurisdiction

properly lies here. The Notice of Removal predicated federal subject matter jurisdiction
exclusively on the diversity provisions of 28 U.S.C. § 1332; however, LifeSouth has not
demonstrated that it is more likely than not that the amount in controversy in this case exceeds
$75,000, exclusive of interest and costs. Accordingly, and in light of the legal requirements that
diversity jurisdiction be strictly construed and that all doubts be resolved in favor of remand, the
Court finds that removal was improvident. This action is REMANDED to the Circuit Court of
Perry County, Alabama for want of federal jurisdiction.
DONE and ORDERED this 23rd day of February, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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