COWART v. BELK'S DEPARTMENT STORE OF ALBANY GEORGIA

Filing 17

ORDER granting in part and denying in part 10 Motion for Leave to File; denying 12 Motion to Remand.Ordered by U.S. District Judge W LOUIS SANDS on 2/11/14 (wks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
MENDELL COWART,
Plaintiff,
v.
BELK’S DEPARTMENT STORE OF
ALBANY, GEORGIA,
Defendant.

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Case No.: 1:13-cv-181 (WLS)

ORDER
Before the Court are Mendell Cowart’s Motion for Leave to Amend Complaint
(Doc. 10) and Motion to Remand (Doc. 12). Cowart’s Motion for Leave to Amend is
GRANTED in part and DENIED in part. Her motion to remand is DENIED.

PROCEDURAL BACKGROUND
Plaintiff Mendell Cowart (Cowart) filed this premises liability case on September
27, 2013, in the Superior Court of Dougherty County, Georgia, against Belk, Inc., 1 (Belk)
for claims arising from a personal injury at the defendant’s department store in Albany,
Georgia. Cowart claims she was struck by a loose mannequin while shopping. Because
of Belk’s alleged negligence, Cowart contends she “suffered injuries to her head, back,
legs, neck, and she also lost a tooth.” She “has incurred medical and hospital expenses
in an amount of at least Five Thousand Eight Hundred Eighty Three . . . ($5,883.00) Dollars plus present and future pain and suffering in an amount to be proved at trial but at
least One-Hundred Thousand . . . ($100,000) Dollars.” Further, her complaint’s ad damnum clause requests “[j]udgment in the amount of at least” $105,883.
On November 18, 2013, Belk removed to this Court on the basis of diversity jurisdiction under 28 U.S.C. §§ 1332, 1441(a). The Notice of Removal states that Belk is in1

Cowart misnamed Belk in her complaint as “Belk’s Department Store of Albany, Georgia.”

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corporated and keeps its principal place of business in North Carolina. Further, Cowart
is not a citizen of North Carolina and requests more than $75,000 in damages. After removal, on November 19, 2013, Belk filed an answer to the Complaint and an amended
notice of removal.
Cowart responded to the removal in two ways. First, on December 6, 2013, she
filed a Motion for Leave to Amend Complaint. Cowart’s amendment seeks to correct
the defendant’s name in complaint and to reduce her request for pain and suffering to
$50,000 instead of $100,000. Such a change is warranted, according to Cowart, because
the removal “is calculated to defeat Plaintiff’s substantive rights under Georgia law,
and the right of plaintiff to choose her place of venue.”
Second, Cowart filed a motion to remand, asserting that she pursues only Georgia law claims and that Belk failed to prove to a “legal certainty” that the amount in
controversy exceeds $75,000.
Belk, in response, urges the Court to deny Cowart’s motion to remand. Per Belk,
Cowart’s motion to amend is an artifice to oust the Court of jurisdiction. Belk contends
that the Court must assess subject matter at the time of removal and that subsequent
events do not divest the Court of jurisdiction. The defendant also argues the preponderance of the evidence establishes Cowart seeks more than the jurisdictional amount.

DISCUSSION
Cowart argues the Court lacks jurisdiction because the amount in controversy is
less than $75,000. This argument and Cowart’s attempt to reduce the amount in controversy are unavailing.
To begin with the basics, the United States Code allows a defendant to remove
from state court any civil action over which a federal court would have original jurisdiction. 28 U.S.C. § 1441(a). When a defendant removes on the basis of diversity jurisdiction, it has the burden of showing both that the parties are completely diverse and that
the amount in controversy exceeds $75,000. Leonard v. Enterprise Rent a Car, 279 F.3d 967,
971–72 (11th Cir. 2002). Jurisdictional facts are assessed at the time of removal. Vega v. T-

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Mobile USA, Inc., 564 F.3d 1256, 1268 n.12 (11th Cir. 2009). Post-removal events reducing the

amount in controversy do not divest a court of jurisdiction. St. Paul Mercury Indem. Co.
v. Red Cab Co., 303 U.S. 283, 289–90 (1938); Fuller v. Exxon Corp., 78 F. Supp. 1289, 1295
(S.D. Ala. 1999) (“Thus, once jurisdiction attaches, a plaintiff cannot divest a federal
court of jurisdiction by later decreasing his claim for damages below the jurisdiction
minimum.”).
Therefore, the Court must assess jurisdiction from Cowart’s pre-removal complaint. See Red Cab, 303 U.S. at 291–92. And where the plaintiff’s complaint specifies an
amount in controversy in good faith, that amount controls unless it appears to a legal
certainty that the amount in controversy is actually less than the jurisdictional amount.
Id. at 289; Leonard, 279 F.3d at 972. “[W]hen the complaint seeks damages exceeding
$75,000, a removing defendant may rely on the plaintiff's valuation of the case to establish the amount in controversy unless it appears to a legal certainty that the plaintiff
cannot recover the amount claimed.” Mitchell v. Brown & Williamson Tobacco Corp., 294
F.3d 1309, 1315 (11th Cir. 2002) (citing Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d
373, 375 (9th Cir. 1997)).
In her complaint, Cowart claims she suffers from injuries to her head, back, legs,
and neck, and she lost a tooth. She therefore requested “at least” $105,883 in damages.
This figure included $5,883 in medical expenses, plus $100,000 for a lifetime of pain and
suffering. Nothing in the record indicates that Cowart made this request in bad faith. To
the contrary, because Cowart filed her claim in state court and wants to litigate it there,
there is a “strong presumption” she did not claim a larger amount to confer jurisdiction
on this Court. See Mitchell, 294 F.3d at 1315. Given these allegations, it does not appear
to a “to a legal certainty” that Cowart cannot recover more than $75,000.
For those reasons, the motion to remand must be denied. In addition, because
post-removal events cannot divest the court of jurisdiction, see supra, Cowart’s motion
to amend is denied in part as futile to the extent it seeks to change the amount in controversy.

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CONCLUSION
Cowart’s motion to remand (Doc. 12) is DENIED. Her motion to amend is
GRANTED in part and DENIED in part as follows: Cowart may file an amended complaint correcting Belk’s name in the pleading. It is denied to the extent the amendment
seeks to change the amount in controversy.
SO ORDERED, this 11th day of February, 2014.

/s/ W. Louis Sands
W. LOUIS SANDS, JUDGE
UNITED STATES DISTRICT COURT

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