Ray v. GPR Hospitality LLC et al
Filing
46
OPINION AND ORDER DENYING Plaintiff's 25 Motion to Remand. Signed by Judge Clarence Cooper on 8/7/2015. (tcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARK RAY as next friend, natural
guardian and natural parent for his
minor child CHARLES RAY,
Plaintiff,
vs.
GPR HOSPITALITY LLC, D/B/A
FIVE GUYS BURGERS & FRIES,
Defendant.
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CIVIL ACTION NO.
1:14-CV-1309-CC
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Remand [Doc. No. 25].
For the reasons stated herein, the Court DENIES the Motion to Remand.
I.
BACKGROUND
On March 28, 2014, Plaintiff Mark Ray as next friend, natural guardian and
natural parent for his minor child Charles Ray (referred to herein as “Plaintiff”) filed
his Complaint [Doc. No. 1-1] in the Superior Court of Fulton County, Georgia.
According to the Complaint, on December 27, 2013, Charles Ray was an invitee at
a retail dining establishment owned by Defendant GPR Hospitality, LLC, doing
business as Five Guys Burgers & Fries (referred to herein as “Defendant” or “Five
Guys”) in Whitfield County, Georgia. (Compl. ¶¶ 1, 4.) Charles went to the men’s
restroom at Five Guys and injured the tip of his right index finger as he exited the
bathroom. (Id. ¶ 5.) His finger became trapped and stuck between the bathroom
door’s outer stile and the outer casing of the bathroom door frame. (Id.) Plaintiff
alleges that the door closer was and had been broken for a significant period of time
prior to Plaintiff’s injury and that Defendant was negligent in failing to properly
maintain the men’s restroom and door closer. (Id. ¶¶ 5, 6.) As of the filing of the
Complaint, Charles allegedly had “experienced substantial pain and suffering to his
body and mind” and “was forced to alter his daily activities, to include his ability
to actively participate in sports.” (Id. ¶ 8.) Additionally, Charles “was . . . required
to undergo reconstructive surgery on the severed portion of his right index finger.”
(Id.) Plaintiff’s Complaint does not include a demand for a certain amount of
damages, but Plaintiff seeks actual, compensatory, general and special damages and
specifically seeks damages for past and future medical bills; past, present, and future
pain and suffering; past and future lost income; and such other damages as
determined by the enlightened conscience of the jury. (Id. ¶¶ 9, 10.)
On May 1, 2014, Defendant removed the action to this Court pursuant to 28
U.S.C. §§ 1441 and 1446. (See Notice and Petition of Removal [Doc. No. 1] “Notice
of Removal” ¶¶ 5. 12 .) Defendant predicates federal subject matter jurisdiction on
28 U.S.C. § 1332, asserting that there is complete diversity of citizenship and that the
amount in controversy exceeds $75,000, exclusive of interest and costs. (Id. ¶ 12.)
Although Plaintiff does not claim a specific amount of damages in the Complaint,
Defendant maintains that the Complaint makes it facially apparent that the amount
in controversy more likely than not exceeds $75,000. (Id. ¶ 16.)
Plaintiff presently seeks to remand this action to state court, arguing that the
amount in controversy is not satisfied. Plaintiff asserts that Defendant’s Notice of
Removal contains misstatements upon which Defendant relies in an attempt to
satisfy its burden of establishing that the amount-in-controversy requirement is
satisfied. Plaintiff additionally points out that Defendant did not submit any
evidence concerning the amount in controversy. For these reasons, Plaintiff urges
the Court to remand the action to Fulton County Superior Court.
Defendant opposes Plaintiff’s Motion to Remand, which the parties have now
fully briefed. Accordingly, the Motion to Remand is ripe for the Court’s review.
II.
ANALYSIS
A.
Standard of Review
Pursuant to the general removal statute, “any civil action brought in a State
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court of which the district courts of the United States have original jurisdiction, may
be removed by the defendant” to federal court. 28 U.S.C. § 1441(a). Original
jurisdiction of the district courts of the United States may be based on the presence
of a federal question or the existence of a dispute involving citizens of different
states where the amount in controversy exceeds $75,000, exclusive of interest and
costs. 28 U.S.C. §§ 1331, 1332. Section 1446 sets forth the procedure for removal of
a state civil action to federal court and provides that a defendant seeking removal
shall file in the federal district court a “notice of removal signed pursuant to Rule 11
of the Federal Rules of Civil Procedure and containing a short and plain statement
of the grounds for removal, together with a copy of all process, pleadings, and
orders served upon such defendant or defendants in such action.” 28 U.S.C. §
1446(a).
This Court has a duty to inquire into its subject matter jurisdiction whenever
it may be lacking. Hernandez v. U.S. Atty. Gen., 513 F.3d 1336, 1339 (11th Cir. 2008).
“If at any time before final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Where the
propriety of removal is in question, the burden of showing that removal is proper
is on the removing party. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.
2001). “[U]ncertainties are resolved in favor of remand.” Burns v. Windsor Ins. Co.,
31 F.3d 1092, 1095 (11th Cir. 1994); see also Univ. of S. Ala. v. Am. Tobacco Co., 168
F.3d 405, 411 (11th Cir. 1999) (“Because removal jurisdiction raises significant
federalism concerns, federal courts are directed to construe removal statutes strictly.
Indeed, all doubts about jurisdiction should be resolved in favor of remand to state
court.”) (citation omitted).
B.
Amount in Controversy
“If a plaintiff makes an unspecified demand for damages in state court, a
removing defendant must prove by a preponderance of the evidence that the
amount in controversy more likely than not exceeds the . . . jurisdictional
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requirement.” Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010)
(citations and internal quotation marks omitted). The defendant must prove that the
amount in controversy exceeded $75,000 at the time the case was removed. Leonard
v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002). A removing defendant “is not
required to prove the amount in controversy beyond all doubt or to banish all
uncertainty about it.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir.
2010).
Generally, “events occurring after removal which may reduce the damages
recoverable below the amount in controversy requirement do not oust the district
court’s jurisdiction.” Poore v. Am.-Amicable Life Ins. Co., 218 F.3d 1287, 1291 (11th
Cir. 2000), overruled in part on other grounds by Alvarez v. Uniroyal Tire Co., 508
F.3d 639, 641 (11th Cir. 2007). Thus, if removal was appropriate at the time the case
was removed, subsequent events, including “loss of the required amount in
controversy,” do not divest the court of jurisdiction. Leonard, 279 F.2d at 972. A
plaintiff’s reduction of a claim after removal, by stipulation, by affidavit, or by
amendment of the pleadings, does not deprive the district court of jurisdiction.
Bankhead v. Am. Suzuki Motor Corp., 529 F. Supp. 2d 1329, 1334 (M.D. Ala. 2008)
(quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292, 58 S. Ct. 586,
82 L. Ed. 845 (1938)).
Here, it is not facially apparent from the Complaint that the amount in
controversy exceeded $75,000 at the time of removal, particularly since Plaintiff did
not quantify any of his medical expenses in the Complaint. As such, the Court next
looks to the Notice of Removal. See Williams, 269 F.3d at 1319 (“If the jurisdictional
amount is not facially apparent from the complaint, the court should look to the
notice of removal . . . .”). In the Notice of Removal, Defendant alleges that Plaintiff’s
injuries “include[ ] a severed right index finger.” (Notice of Removal ¶ 9 (citing
Compl. ¶¶ 6, 8)). Defendant further quotes Plaintiff’s allegation that “he has
‘experienced substantial pain and suffering to his body and mind,’ has been ‘forced
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to alter his daily activities, to include his ability to actively participate in sports, and
was also required to undergo reconstructive surgery on the severed portion of his
right index finger.’” (Notice of Removal ¶ 10 (quoting Compl. ¶ 8)). Defendant
points out the various damages Plaintiff seeks, including “‘special damages for past
and future medical bills,’ as well as ‘actual, compensatory, and general damages for
past, present, and future pain and suffering, past and present future lost income,
and such other damages’ together with ‘interest and costs of this action.’” (Notice
of Removal ¶ 11 (quoting Compl. ¶¶ 9-11)). Defendant adds that “even without
considering Plaintiff’s past and future medical expenses and lost earnings, the
monetary value of Plaintiff’s mental and physical pain and suffering is substantial,
considering that his finger was severed by a closing door.” (Notice of Removal ¶
16.)
Assuming the truth of the allegations in the Notice of Removal, Defendant
makes a convincing case that the jurisdictional requirement is satisfied, but Plaintiff
asserts that a comparison of the allegations in the Complaint with the allegations in
the Notice of Removal reveals that the allegations in the Notice of Removal are
slightly misleading. In this regard, Plaintiff unambiguously alleges in the Complaint
that only “the tip of his right index finger [was] injured” and that reconstructive
surgery was performed only on a “severed portion of his right index finger.”
(Compl. ¶¶ 5, 8) (emphasis added). In contrast, the allegations in the Notice of
Removal suggest that Plaintiff’s entire right index finger was severed. (Notice of
Removal ¶¶ 9, 16.) Based on the Court’s prior experience with personal injury cases,
the Court is of the opinion that even if only a portion of Plaintiff’s finger was
severed, the damage award in the case could conceivably exceed $75,000. However,
because preponderance of the evidence is the standard Defendant must meet and
uncertainties about jurisdiction are resolved in favor of remand, Burns, 31 F.3d at
1094, 1095, the Court will consider the case record as it relates to the amount in
controversy at the time of removal, Williams, 269 F.3d at 1320 (stating that the court
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“may review the record to find evidence that diversity jurisdiction exists” where
“the pleadings are inconclusive as to the amount in controversy”).
Having reviewed the record in this case, the Court finds, as an initial matter,
that Plaintiff tacitly agreed upon removal that the amount in controversy exceeded
$75,000, exclusive of interest and costs. Notably, Plaintiff did not file a motion to
remand immediately or even within the first few months following removal. Rather,
Plaintiff waited over five months after the action had been removed to move the
Court to remand the action to state court. Moreover, the Joint Preliminary Report
and Discovery Plan, which was filed a little over a month following removal and
signed by counsel for both parties, expressly stated that there were no questions
about federal jurisdiction. The parties took the same position when they filed an
Amended Joint Preliminary Report and Discovery Plan on July 22, 2014. Thus, at
least at these points in the litigation, Plaintiff agreed that the action had been
removed properly and that the amount in controversy exceeded $75,000, exclusive
of interest and costs, at the time of removal.1 These representations to the Court are
relevant to the Court’s analysis. See Allen v. Toyota Motor Sales, U.S.A., Inc., 155
F. App’x 480, 481, 482 (11th Cir. 2005) (considering as evidence plaintiff’s
To be clear, Plaintiff’s lack of an objection to jurisdiction at the time of
removal and at the time of the filing of the joint preliminary reports does not now preclude
Plaintiff from challenging jurisdiction. See 28 U.S.C. § 1447(c) (“If at any time before final
judgment it appears that the district court lacks subject matter jurisdiction, the case shall
be remanded.”). However, Plaintiff’s initial position post-removal sheds light on the
amount of damages that Plaintiff sought to recover from Defendant at the time that
Defendant removed the action, which is the relevant time period for purposes of this
jurisdictional analysis. See Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294-95
(11th Cir. 2008) (“The existence of federal jurisdicion is tested at the time of removal.”);
Leonard, 279 F.3d at 972 (“not[ing] that for purposes of this challenge to the subject matter
jurisdiction of the district court, the critical time is the date of removal”); Poore, 218 F. 3d
at 1290-91 (holding that the proper inquiry in response to a post-removal, jurisdictional
challenge is whether the court had jurisdiction at the time of removal); see also Land
Clearing Co. v. Navistar, Inc., No. 11-0645-WS-M, 2012 WL 206171, at *3 (S.D. Ala. Jan. 24,
2012) (“[P]ost-removal developments are properly weighed where they shed light on the
amount in controversy at the time of removal.”).
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representations in joint preliminary report and proposed pre-trial order that no
question existed as to the court’s subject matter jurisdiction).
Clearly indicative of Plaintiff’s intent to recover damages above the
jurisdictional threshold is a $150,000 settlement offer that Plaintiff made during the
pendency of this action.2
Of course, this settlement offer was not among
Defendant’s removing documents, but the offer is nevertheless proper for the
Court’s consideration. See Lowery v. Alabama Power Co., 483 F.3d 1184, 1214 n. 66
(11th Cir. 2007). In Lowery, the Eleventh Circuit explained that a district court is not
always limited to considering the removing documents in assessing a challenge to
the court’s subject matter jurisdiction:
[I]n some limited circumstances, a defendant may effectively amend a
defective notice of removal upon receipt of additional evidence that
supplements the earlier-filed notice. For example, such a situation
might arise where, after filing an insufficient notice of removal but
before remand is ordered, the defendant receives a paper from the
plaintiff that would itself prove sufficient grounds for removal.
Id. at 1214 n. 66. Such a limited circumstance exists where a plaintiff does not
challenge removal on the basis of a lack of subject matter jurisdiction until more than
30 days following removal. Id. at 1214 n. 64. In such a later challenge, “the court
may look to any relevant information the parties may present, up until the time of
the challenge to jurisdiction.” Id.
Following Lowery, a district court in Alabama, in a case procedurally similar
to the case at bar, concluded that a post-removal settlement demand of $150,000 was
admissible evidence of the amount in controversy at the time of removal and held
that the settlement demand letter was sufficient to establish by a preponderance of
the evidence that the jurisdictional requirement was met. Bankhead v. Am. Suzuki
Motor Co., 529 F. Supp. 2d 1329, 1333, 1335 (M.D. Ala. 2008). In Bankhead, the
defendant removed the case to federal court based on diversity of citizenship. Id.
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Plaintiff does not dispute that he made this offer as a compromised settlement
amount.
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at 1331. As in the instant case, the plaintiff sought an unspecified amount of
damages in the complaint. Id. at 1332. Seven months following removal to federal
court, the plaintiff sent the defendant a settlement demand in the amount of
$150,000. Id. at 1333. One month after the plaintiff sent the settlement demand, the
plaintiff moved the court to remand the action. Id. In a persuasive, published
opinion, the Alabama district court denied the motion, finding that the settlement
demand provided “post-removal clarification of the removal notice showing that the
amount in controversy at the time of removal far exceeded the jurisdictional
requirement.” Id.
Strikingly similar to Bankhead, in the case before this Court, Plaintiff made
a compromised settlement offer of $150,000 about four months after Defendant filed
its Notice of Removal. As Defendant argues, nothing in the record reflects that the
amount in controversy increased between the time of removal and the time that
Plaintiff made the settlement offer. Therefore, even if Defendant’s Notice of
Removal is defective, Plaintiff’s $150,000 settlement offer provides post-removal
clarification that the amount in controversy at the time of removal exceeded the
$75,000 jurisdictional requirement. See Pretka, 608 F.3d at 772-73 (holding that postremoval developments are properly weighed where they provide additional
information concerning the amount in controversy at the time of removal); see also
Lowery, 483 F.3d at 1212 n. 62 (noting that settlement offers can serve as evidence
of the amount in controversy). Simply put, this is not a case where Plaintiff never
sought, nor intended to accept, greater than $75,000 in damages from Defendant.
Plaintiff attempts to dispute jurisdiction with what is essentially evidence of
post-removal changes in the amount in controversy, but this evidence is not
properly before the Court for consideration and does not change the Court’s
analysis. See Jackson v. Select Portfolio Servicing, Inc., 651 F. Supp. 2d 1279, 1282
(S.D. Ala. 2009) (“[W]hat is prohibited are post-removal changes in the amount in
controversy, not post-removal clarifications of the amount that was in controversy
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at the moment of removal.”). In this regard, Plaintiff presents evidence that he has
been able to resume participation in various sports activities and that the tip of his
finger has been “remarkably” repaired. (Plaintiff’s Reply Br. in Supp. of Mot. to
Remand [Doc. No. 31] at 2-3.) However, these subsequent case developments are
the precise type of “events occurring after removal which may reduce damages
recoverable below the amount in controversy requirement [that] do not oust the
district court’s jurisdiction.” Poore, 218 F.3d at 1291. Plaintiff also mentions that he
ultimately lowered his initial settlement demand to $35,000, but Plaintiff’s reduction
of his claim or willingness to accept a settlement payment below the requisite
jurisdictional amount, likely given the subsequent developments, does not deprive
this Court of subject matter jurisdiction. See Bankhead, 529 F. Supp. 2d at 1334
(citations omitted) (construing plaintiff’s “second settlement demand letter as a postremoval waiver of a certain amount of damages in an effort to deprive [the] court
of jurisdiction” and rejecting plaintiff’s effort to do so).
Again, the relevant time period for purposes of the Court’s analysis is the time
of removal. Plaintiff, at that time, contemplated that there would be and sought
damages for, among other things, future medical bills, future pain and suffering,
and future lost income. That Plaintiff’s finger apparently now has healed to the
point that such damages are likely not recoverable is completely irrelevant to the
Court’s present analysis of the jurisdictional challenge.
In sum, in light of Plaintiff’s undisputed settlement offer of $150,000, the
Court is of the opinion that Defendant has met its burden of establishing that it is
more likely than not that the amount in controversy, at the time of removal,
exceeded $75,000, as necessary to support federal diversity jurisdiction pursuant to
28 U.S.C. § 1332.
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III.
CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff’s Motion to Remand [Doc.
No. 25].
SO ORDERED this 7th day of August, 2015.
s/ CLARENCE COOPER
CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE
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