Rusin et al v. I-Flow, LLC et al

Filing 9

ORDER of Remand. ORDERED that the Clerk of Court is directed to REMAND this action to the Denver County, District Court from which the case was removed, by Chief Judge Wiley Y. Daniel on 8/24/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 12-cv-02190-WYD-KLM
KIRK A. RUSIN and
AMY S. RUSIN,
Plaintiffs,
v.
I-FLOW, LLC (f/k/a I-Flow Corporation), a Delaware LLC;
DJO, LLC, a Delaware Corporation; and
DJO GLOBAL, INCORPORATED (f/k/a DJO, Incorporated), a Delaware Corporation,
Defendant.

ORDER OF REMAND

THIS MATTER is before the Court on the Notice of Removal (ECF No. 1), filed
August 17, 2012. By way of background, this is a product liability and personal injury
action arising from injuries Plaintiff Kirk A. Rusin allegedly sustained as a result of “the
continuous infusion of anesthetic drugs over time directly into Mr. Rusin’s shoulder joint
[via a pain pump] after his August 26, 2004 surgery . . . .” (ECF No. 7, Compl. ¶ 42).
On August 17, 2012, Defendant I-Flow, LLC (“I-Flow”) filed a notice of removal
asserting that diversity jurisdiction exists pursuant to 28 U.S.C. § 1332(a)(1). I-Flow
claims in the notice of removal that the amount in controversy requirement is satisfied.
Further, I-Flow asserts that while Plaintiffs are citizens of Colorado, Defendants I-Flow,
DJO, LLC and DJO Global, Inc. are citizens of Delaware and California.
After carefully reviewing the pleadings, I find that this case must be remanded

based on the failure of I-Flow to show that the amount in controversy is satisfied. The
amount in controversy is ordinarily determined by the allegations of the complaint, or,
where they are not dispositive, by the allegations in the notice of removal. Martin v.
Franklin Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001); Laughlin v. Kmart Corp.,
50 F.3d 871, 873 (10th Cir. 1995). If the jurisdictional amount is not shown by the
allegations of the complaint, “[t]he burden is on the party requesting removal to set forth,
in the notice of removal itself, the ‘underlying facts supporting [the] assertion that the
amount in controversy exceeds [$75,000].’” Laughlin, 50 F.3d at 873 (quotation
omitted). In other words, the amount in controversy must be affirmatively established
on the face of either the petition or notice of removal. Id. The removal statute is
construed narrowly. Martin, 251 F.3d at 1289.
In McPhail v. Deere & Co., 529 F.3d 947 (10th Cir. 2008)1, the Tenth Circuit
outlined several methods that a removing defendant may use to satisfy its burden of
proving jurisdictional facts by a preponderance of evidence. However, a plaintiff “cannot
avoid removal merely by declining to allege the jurisdictional amount,” but in the
absence of an explicit demand for more than the jurisdictional amount, defendant must
show how much is in controversy through other means. Id. at 955. In other words, “the

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Unlike the instant action, McPhail was a wrongful death case. Although plaintiff
refused to stipulate that the amount in controversy exceeded $75,000, the complaint
alleged that the decedent suffered severe and permanent injuries prior to death, and
sought actual and punitive damages. Id. at 955-56. Further, plaintiff’s counsel indicated
in communications with opposing counsel that the amount in controversy “very well may
be” in excess of $75,000. Id. at 957. The Tenth Circuit held that the allegations in the
complaint coupled with the background information regarding discussions between
counsel were sufficient to prove facts necessary to establish that the amount in
controversy exceeded $75,000. Id.
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defendant must affirmatively establish jurisdiction by proving jurisdictional facts that
made it possible that $75,000 was in play.” Id. A defendant may accomplish this
through interrogatories obtained in state court prior to the removal, or affidavits or other
evidence submitted to the federal court. Id. at 956.
Here, turning to the Complaint, I find that the allegations do not show that the
amount in controversy exceeds $75,000, as required to establish diversity jurisdiction.
28 U.S.C. § 1332(a)(1). Although the Complaint describes Plaintiff’s injuries as serious
and asks for several categories of damages, the extent of the injuries is ambiguous on
the Complaint’s face. While the various categories of damages could conceivably
increase a potential recovery, I am unclear as to the amount the Plaintiff might recover
because the amount in controversy of each damage category or injury is unknown.
Thus, I turn to the notice of removal. The notice of removal merely states the
following in relevant part:
Plaintiffs seek a monetary judgment in excess of $100,000. (See, e.g.,
District Court Civil Case Cover Sheet.) In addition, it is apparent that
Plaintiffs seek to recover more than $75,000 from Defendants in this
action. In the Complaint, Kirk A. Rusin claims that he suffers from a
condition called glenohumeral chondrolysis, “which is the complete or
nearly complete loss of cartilage in the shoulder joint, an irreversible,
disabling, and extremely painful condition” and that he “has and will
continue to have difficulty doing the most basic tasks of everyday living.”
(Complaint, ¶ 42.) He further alleges that “he will require additional
surgery, including possible shoulder transplants, joint replacements,
insertion of an artificial shoulder and/or total shoulder replacements” and
that his “daily life is consumed with the devastation of a destroyed
shoulder and the prospects of a life of pain and medication.” (Complaint, ¶
42.) He claims that he will “suffer lost income, loss of career options, a
loss of enjoyment of life, and other damages.” (Complaint, ¶ 42.) Plaintiff,
Amy S. Rusin, claims loss of consortium in relation to Kirk Rusin’s alleged
injuries. (Complaint, ¶¶ 219-223.) Based on these allegations and on the
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preliminary investigation conducted regarding Plaintiff’s alleged injuries
and treatment, I-Flow anticipates that Plaintiffs’ alleged claims involve an
amount in controversy greater than $75,000.
(ECF No. 1, Notice of Removal ¶ 12). That paragraph is the only information in the
notice of removal regarding the amount in controversy.2
Under McPhail, I-Flow may satisfy its burden “by [submitting] contentions,
interrogatories or admissions in state court; by calculation from the complaint’s
allegations; by reference to the plaintiff’s information estimates or settlement demands;
or by introducing evidence, in the form of affidavits from the defendant’s employees or
experts, about how much it would cost to satisfy the plaintiff’s damands.” McPhail, 529
F.3d at 954. General allegations are insufficent. Id. at 955. Here, I-Flow did not submit
any of the supporting information outlined in McPhail. Thus, rather than offer the Court
any guidance about the possible amount of Plaintiff’s recovery related to the requested
damages, I-Flow is essentially asking me to speculate, without any evidence, that
Plaintiff’s damages will exceed $75,000. Given the controlling law, this is improper as I
cannot discern the amount in controversy based on the contents of both the Complaint
and the notice of removal. Therefore, I find that I-Flow has failed to meet its burden of
affirmatively establishing the amount in controversy on the face of either the petition or
the notice of removal.
Finally, I note that in the notice of removal, I-Flow mentions the Plaintiff’s Civil

2

Further undermining I-Flow’s argument is its use of the phrase, “anticipates that
Plaintiffs’ alleged claims involve an amount in controversy greater than $75,000.”
(Notice of Removal ¶ 12) (emphasis added). This equivocal statement fails to convince
me by a preponderance of evidence that the amount in controversy exceeds $75,000.
McPhail, 529 F.3d at 954-55.

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Cover Sheet as support for its jurisdictional argument. A number of cases from this
Court have held that reliance solely on the Civil Cover Sheet filed in state court to
establish the jurisdictional amount is insufficient, and I incorporate their reasoning
herein. See Baker v. Sears Holding Corp., No. 07-cv-01106-MSK-MEH, 2007 WL
2908434 at * 3-4 (D. Colo. 2007); Ralph v. SNE Enterprises, Inc., No. 07-cv-01163WDM-MJW, 2007 WL 1810534 at *1 (D. Colo. 2007); Hardin v. Sentinel Ins. Co., Ltd.,
490 F. Supp. 2d 1134, 1135-36 (D. Colo. 2007); Bishelli v. State Farm Mut. Automobile
Ins. Co., No. 07-cv-00385-WYD-MEH, 2007 WL 1455852 at *3 (D. Colo. 2007); Dean v.
Illinois Nat. Ins. Co., 07-cv-01030-MSK-MJW, 2007 WL 2937014 at *1 (D. Colo. 2007).
Thus, I find that I-Flow’s reference to the civil cover sheet is insufficient to satisfy the
jurisdictional amount in controversy requirement. See Valdez v. Byers, 2009 WL
1440090 (D. Colo. May 20, 2009) (holding that both a plaintiff’s settlement demand
letter of $290,000.00 based on bodily injuries coupled with plaintiff’s state court Civil
Cover Sheet, which indicated that plaintiff was seeking more than $100,000.00 in
damages, satisfied the jurisdictional amount in controversy requirement).
Guided by the strong presumption against removal of civil actions to federal court
based on diversity jurisdiction and the fact that it appears that the Court lacks subject
matter jurisdiction over this action, I find that this matter must be remanded to the state
court. See 28 U.S.C. § 1447(c). Accordingly, it is
ORDERED that the Clerk of Court is directed to REMAND this action to the
Denver County, District Court from which the case was removed.

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Dated: August 24, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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