PUBLIC SERVICE TOWERS INC v. BEST BUY STORES LP
ORDER granting 8 Motion to Remand and directing the Clerk to remand this action to the Superior Court of Muscogee County, Georgia. Ordered by U.S. District Judge CLAY D LAND on 06/24/2014. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
PUBLIC SERVICE TOWERS, INC.,
BEST BUY STORES, L.P.,
O R D E R
Defendant Best Buy Stores, L.P. built a large retaining wall
that encroaches on Public Service’s property.
originally filed a trespass action in this Court on July 3, 2008
Towers, Inc. v. Best Buy Stores, L.P., ECF No. 1 in M.D. Ga.
Case No. 4:08-CV-92-CDL.
Subject matter jurisdiction was based
on diversity of citizenship.
Id. at 2 ¶ 4.
Public Service determined that it was “unlikely to be able to
satisfy the $75,000 diversity jurisdictional requirement of 28
U.S.C. § 1332(a).”
Pl.’s Mot. to Remand 1, ECF No. 18 in M.D.
Ga. Case No. 4:08-CV-92-CDL.
a motion to remand.
Consequently, Public Service filed
Best Buy did not oppose remand, and the
Court “remanded the action” to the Superior Court of Muscogee
County, Georgia on April 15, 2009.1
U.S.C. § 1332(a).
Public Service seeks remand because Best Buy
did not remove the action within a year after it was commenced
in the state court.
As discussed below, Public Service’s Motion
to Remand (ECF No. 8) is granted.
Williams v. Best Buy Co., 269 F.3d 1316,
1319 (11th Cir. 2001).
Because Public Service did not plead “a
specific amount of damages” after it represented to the Court
that the amount in controversy did not exceed $75,000, Best Buy
“must prove by a preponderance of the evidence that the amount
Under the law in effect when this action was commenced in the
In actuality, this Court’s Order of “remand” would have operated as a
dismissal without prejudice for lack of subject matter jurisdiction
since the action originated here and not in state court.
subsequent action in the Superior Court of Muscogee County would have
been a new state court action.
defendant received “a copy of an amended pleading, motion, order
or other paper from which it may first be ascertained that the
U.S.C. § 1446(b) (2010).
But “a case may not be removed” based
on diversity jurisdiction “more than 1 year after commencement
of the action.”
Public Service submitted a settlement demand of $160,000 to
Best Buy on March 17, 2014, and Best Buy filed its notice of
removal within thirty days of receiving that demand.
to Best Buy, the settlement demand is an honest assessment of
assumes for purposes of this motion that the settlement demand
is an “other paper from which it may first be ascertained that
the case . . . has become removable.”
The remaining question is whether § 1446(b)’s one-year bar
Several district courts have applied the doctrine of
plaintiff engaged in bad faith manipulation of the state court’s
Thompson v. Belk, Inc., No. 1:13-cv-1592-WSD,
The law has since been updated to provide that a case may not be
removed based on diversity jurisdiction “more than 1 year after
commencement of the action, unless the district court finds that the
plaintiff has acted in bad faith in order to prevent a defendant from
Clarification Act of 2011, Pub. L. 112-63, § 103(b)(3)(C), 125 Stat.
758, 760; id. § 205(2), 125 Stat. at 764-65 (noting that amended law
applies to cases commenced on or after December 7, 2011).
2013 WL 5786587, at *2 (N.D. Ga. Oct. 28, 2013) (collecting
cases); accord Barnett v. Sylacauga Autoplex, 973 F. Supp. 1358,
(stating that bad faith exists if “the plaintiff deliberately
failed to disclose the actual amount in controversy to prevent
In Thompson, for example, the plaintiff knew that
the amount in controversy exceeded $75,000 but did not respond
preventing removal within the one-year period.
WL 5786587, at *3.
The court concluded that the plaintiff had
acted in bad faith and was equitably estopped from relying on
the one-year bar.
Id.; see also Morrison v. Nat’l Benefit Life
Ins. Co., 889 F. Supp. 945 (S.D. Miss. 1995) (finding bad faith
damages than he revealed in his original complaint”).
Here, Best Buy did not point to any evidence that Public
Service intentionally concealed the amount of damages to avoid
It is true that as of March of 2014, Public Service
But Best Buy pointed to no evidence
that Public Service acted in bad faith by concealing the true
amount in controversy
during the five years this action was
pending in the state court.
There is no evidence that Public
Service knowingly misrepresented the value of its claim in 2009
when it represented to the Court that the amount in controversy
Pl.’s Mot. to Remand 2.
There is no evidence that the
amount in controversy clearly exceeded $75,000 within a year
after the state court action was commenced.
And there is no
requests regarding the amount of damages.
For all of these
reasons, the Court finds that Best Buy has not met its burden of
establishing that Public Service acted in bad faith.
Best Buy’s attempted removal of this action over one year after
it was commenced was not proper, and Public Service’s motion to
remand (ECF No. 8) is granted.
Based on the foregoing, the Clerk is directed to remand
this action to the Superior Court of Muscogee County, Georgia.
IT IS SO ORDERED, this 24th day of June, 2014.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
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