Oliver v. Mona Vie, Inc. et al
ORDER granting 10 Motion to Remand, and REMANDING CASE TO STATE COURT. Signed by Honorable Susan O. Hickey on May 31, 2012. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JOE NEAL OLIVER, individually and
as Class Representative on behalf of all
similarly situated persons
CASE NO. 4:11-CV-04125
MONA VIE, INC. and
MONA VIE, L.L.C.
Before the Court is Plaintiff Joe Neal Oliver’s Motion to Remand. (ECF No. 10). The
Defendants have responded in opposition (ECF No. 22), and the Plaintiff has replied. (ECF No.
24). The matter is ripe for the Court’s consideration. For the following reasons, the motion will
The Plaintiff filed suit against the Defendants in Miller County Circuit Court on
December 16, 2010. He sought damages for misleading advertising related to the Defendants’
juice products. To keep the case in state court, the Plaintiff stipulated in his complaint that he
was seeking less than $75,000 per class member, and less than $5,000,000 in total damages,
excluding interest and costs. On December 16, 2011, the Defendants removed the case to this
Court, relying on diversity jurisdiction and the Class Action Fairness Act (CAFA). (ECF No. 1).
In removing, the Defendants argued that the Plaintiff’s stipulations were insufficient to defeat
federal jurisdiction. The Plaintiff now asks the Court to remand the case to Miller County Circuit
Court because the stipulations are sufficient to preclude this Court’s jurisdiction.
The fundamental dispute before the Court is whether the Plaintiff’s amount-incontroversy stipulations are sufficient to defeat diversity and CAFA jurisdiction. If they are, then
this Court must remand. If they are not, then the Court must decide whether the Defendants have
sufficiently proved that the amount in controversy meets federal jurisdictional requirements.
A defendant invoking federal-court diversity jurisdiction through removal must prove the
required statutory amount in controversy by a preponderance of the evidence. Hargis v. Access
Capital Funding, LLC, 674 F.3d 783, 798 (8th Cir. 2012) (quoting Bell v. Hershey Co., 557 F.3d
953, 956 (8th Cir. 2009)). The defendant does not have to prove by a preponderance that the
amount in controversy is more than the statutory amount, but rather that a fact finder might
legally conclude that it is. Hartis v. Chicago Title Ins. Co., 656 F.3d 778, 781 (8th Cir. 2009)
(quoting Bell, 557 F.3d at 958)). If a defendant meets its burden, then a plaintiff seeking remand
must establish to a legal certainty that the amount in controversy is less than the statute requires.
Bell, 557 F.3d at 956. The Court need not consider whether the Defendants have shown by a
preponderance that the amount in controversy might exceed the statutory minimum; the
Plaintiff’s stipulations, if they are binding, are enough to establish to a legal certainty that the
statutory minimum is not met.
Removal is defeated by adding to the complaint a binding stipulation promising not to
seek greater damages than the jurisdictional minimum. Id. at 958. The parties in this case agree
on that point. The Plaintiff’s stipulations in this case, however, were not submitted with his
complaint, but rather in his complaint. The stipulations, in other words, were part of the
complaint. Other than that, the stipulations are unequivocal. The Defendants simply argue, from
inference, that case law requires stipulations to be separate from the complaint, even if filed with
it. See, e.g., Bell, 557 F.3d at 958 (“[To prevent removal, plaintiff] could have included a binding
stipulation with his petition….”).
This District, however, has rejected that argument.1 In McClendon v. Chubb Corp., No.
2:11-cv-02034-PKH, 2011 WL 3555649, at *8 (W.D. Ark. Aug. 11, 2011), the court found that,
in Arkansas, a stipulation in a complaint functions the same as a separate one, because it binds
the plaintiff.2 Our sister district agrees, noting that an Arkansas plaintiff is allowed to plead
damages specifically, and that even if she doesn’t, Arkansas law holds her recovery below the
federal jurisdictional threshold. Murphy v. Reebok Int’l, Ltd., No. 4:11-cv-214-DPM, 2011 WL
1559234, at *2 (E.D. Ark. Apr. 22, 2011).
Indeed, Ark. R. Civ. P. 8(a) limits recovery for unspecified liquidated damages to an
amount below the minimum for federal-court diversity jurisdiction, unless the complaint
expressly seeks a higher recovery. And ARK. CODE ANN. §16-63-221 allows a plaintiff to declare
an amount in controversy to establish jurisdiction, and states that if a plaintiff does so, the
declaration is binding on the plaintiff. ARK. CODE ANN. § 16-63-221 (West 2012). These statutes
and the holding of McClendon show that an Arkansas plaintiff’s amount-in-controversy
stipulation is valid even if included in its complaint rather than contained in a separate stipulation
or affidavit. Thus, the Plaintiff’s stipulation here is valid, and ensures that the Defendants’
attempt at removal fails.
The Defendants’ next argue that the Plaintiff’s stipulations are undone by his refusal, in
response to the Defendants’ requests for admissions, to disclaim damage amounts in excess of
his pleaded amounts. The Plaintiff’s response to the Defendants’ request for admissions on the
The Court recognizes that a recent case in this district takes a contrary position. Thatcher v. Hanover Ins. Group,
Inc., No. 4:10-cv-04172, 2012 WL (W.D. Ark. May 29, 2012). The Court, however, follows the greater weight of
the cases in finding that a stipulation in a complaint is sufficient to bind the Plaintiff.
The Arkansas result is not achieved in states whose pleading standards preclude pleading damages with specificity.
See, e.g., Bell, 557 F.3d at 956 (noting the Iowa prohibition on specifically pleading damages).
amount-in-controversy issue were vague, and could equate to a refusal to admit being bound to
the pleaded amounts.
Still, as discussed above, Arkansas statutory law deems the Plaintiff bound to his pleaded
amount. Moreover, judicial estoppel would prevent any attempt by the Plaintiff to thwart his
stipulations upon remand. Rolwing v. Nestle Holdings, Inc., 666 F.3d 1069, 1072 (8th Cir. 2012);
Smith v. American Bankers Ins. Co. of Florida, No. 2:11-cv-02113, 2011 WL 6090275, at *9
(W.D. Ark. Dec. 7, 2011) (post-remand attempt to thwart rules would be “prohibited under the
doctrine of judicial estoppel”); Murphy, 2011 WL 1559234, at *2 (“…all the material
circumstances would judicially estop [the plaintiff] from changing her tune when the case returns
to state court.”). The Arkansas doctrine against taking inconsistent positions also would prevent
the Plaintiff’s attempt to thwart his stipulations. Id. Additionally, the CAFA statute likely would
permit the Defendants to remove again if the Plaintiff raises the amount in controversy. 28
U.S.C. § 1453(b) (2006) (noting that the 1-year limitation for removal under § 1446(c)(1) does
not apply to CAFA removal). Finally, as a general matter, courts are not friendly toward parties
scheming to alter jurisdiction. As one court noted:
However, with federal jurisdiction, one must fish or cut bait. Plaintiff may not
play games with federal jurisdiction. While plaintiff may limit his damages to
avoid removal…, he may not temporarily defeat removal and then upon remand
and after the expiration of the one year removal period, amend his pleadings or
even without a formal amendment, ask huge amounts at trial.
Hollenbeck v. Outboard Marine Corp., 201 F.Supp.2d 990, 994 (E.D. Mo. 2001).
For the reasons stated above, the Plaintiff’s in-complaint stipulations bind him the same
as separate stipulations would, and are sufficient to preclude the Defendants from showing by a
preponderance of the evidence that the amount in controversy in this case gives this Court
jurisdiction over it. Accordingly, the Plaintiff’s Motion to Remand (ECF No. 10) should be and
hereby is GRANTED. The case is hereby remanded to the Circuit Court of Miller County,
Arkansas for further proceedings.
IT IS SO ORDERED, this 31st day of May, 2012
/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge
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