Borgen v. United Parcel Service
Order on Motion to Remand to State Court
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED PARCEL SERVICE,
ORDER FROM CHAMBERS
Motion at Docket 19]
I. MOTION PRESENTED
At docket 19, Robert Borgen moves to remand this case to state court. At docket
25, United Parcel Service (“UPS”) opposes Borgen’s motion. At docket 26, Borgen has
filed a reply in support of his motion. Oral argument has not been requested and would
not assist the court.
Borgen filed a complaint against UPS in Alaska state court in February of 2005
and UPS timely removed the case to this court in March of 2005. Borgen’s complaint
pleaded five counts against UPS, but after UPS removed the case to this court, the
court entered summary judgment on four of the five counts. Now, Borgen argues the
case must be remanded to state court on the ground neither diversity nor federal
question jurisdiction exists.
Although diversity jurisdiction depends on the parties’ citizenship and the amount
in controversy, only the amount in controversy is at issue here. The amount in
controversy is determined by looking to the complaint1 at the time of removal,2 but if it is
unclear from the complaint, then UPS bears the burden of proving it meets the
jurisdictional requirement under 28 U.S.C. § 1332(a).3 Here, it is clear from Borgen’s
complaint at the time of removal the amount in controversy exceeds $75,000, exclusive
of interest and costs, and thus meets the jurisdictional requirement. He seeks, among
other relief, $50,000 for economic damages, $50,000 for non-economic damages and
$500,000 for punitive damages4 for a total of at least $600,000 in controversy.5 It does
not matter that neither his economic nor his non-economic damages claim exceeds
$75,000 because his punitive damages claim exceeds that amount and even if it did
not, the aggregate of the three claims would exceed $75,000.6
Borgen asserts his damages no longer exceed $75,000. He argues this alleged
fact deprives the court of diversity jurisdiction, citing 28 U.S.C. § 1447(c) as amended in
1988. That statute provides, “[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.”
Borgen’s argument challenges the long-standing rule that “events occurring
subsequent to removal which reduce the amount recoverable, whether beyond the
plaintiff’s control or the result of his volition, do not oust the district court’s jurisdiction
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291-92 (1938).
Sparta Surgical Corp. v. Nat’l Ass’n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir.
1998) (citing Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1488 (10th Cir. 1991)).
Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003)
Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001) (citing Bell v. Preferred
Life Assurance Soc’y, 320 U.S. 238, 240 (1943)) (punitive damages count toward the amount in
controversy in a civil action).
See complaint, p. 7, attached at doc. 3.
Gibson, 261 F.3d at 943 (quoting Snyder v. Harris, 394 U.S. 332, 335 (1969)).
once it has attached.”7 He insists Congress abrogated that rule when it amended
Section 1447(c) in 1988, but the court will not lend that construction to the amended
statute. Instead, the court will follow every circuit court to address the question Borgen
presents and conclude the amended Section 1447(c) did not void the rule against postremoval events depriving district courts of diversity jurisdiction.8
Because diversity jurisdiction exists, there is no need to address Borgen’s
arguments about federal question jurisdiction.
For the reasons set out above, the motion at docket 19 is DENIED.
DATED at Anchorage, Alaska, this 25th day of April, 2006.
JOHN W. SEDWICK
UNITED STATES DISTRICT COURT JUDGE
St. Paul, 303 U.S. at 293.
Am. Dental Indus., Inc. v. EAX Worldwide, Inc., 228 F. Supp. 2d. 1155, 1157 (D. Or.
2002) (citing decisions by the Sixth, Seventh and Eleventh Circuits).
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