Nelson v. Group 1 Automotive, Inc.
Filing
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MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that reports and recommends that this case be remanded for lack of subject-matter jurisdiction, and that this civil action be closed. Objections due by 2/29/2016. Signed by Magistrate Judge Brian K. Epps on 2/10/2016. (jah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
KAREN NELSON,
)
)
Plaintiff,
)
)
v.
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CV 115-169
)
GPI GA-DM, LLC d/b/a Mercedes
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Benz of Augusta,
)
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Defendant.
)
_________________________________________________________
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
_________________________________________________________
Based on the evidence introduced at the hearing on January 12, 2016, and for the
reasons stated below, the Court REPORTS and RECOMMENDS that this case be
REMANDED for lack of subject-matter jurisdiction and this civil action be CLOSED.
I.
DISCUSSION
The complaint alleges that, on September 12, 2013, Plaintiff slipped and fell on an
unknown liquid while picking her car up from the maintenance department of Defendant’s
Mercedes Benz dealership. (Compl., doc. no. 1-1, ¶¶ 6, 10-20.) The complaint does not
plead a specific amount of damages. Defendant removed this case from the Superior Court
of Richmond County on October 19, 2015, claiming diversity jurisdiction based on a pre-suit
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letter from Plaintiff’s counsel demanding $100,000. (Notice of Removal, doc. no. 1, ¶ 5.)
The Court conducted a hearing regarding jurisdiction on January 12, 2016. (Doc. no. 13.)
In advance of the hearing, Defendant submitted a stipulation from Plaintiff that she
will seek more than $75,000 at trial. (Doc. nos. 16, 18.) At the hearing, Plaintiff’s counsel
argued the fall has caused Plaintiff to suffer from vertigo and migraines, forcing Plaintiff to
give up activities she enjoys such as regular exercise, traveling, and cruising on ships. (For
the Record “FTR” 2:14:45- 2:15:24; 2:22:08 – 2:22:41.) Plaintiff seeks damages for past
and future medical expenses, pain and suffering, and attorneys’ fees, but she is not seeking
lost wages or punitive damages. (FTR 2:15:24- 2:16:18.)
According to counsel, Plaintiff has incurred approximately $12,000 in medical
expenses to date. (FTR 2:13:56 - 2:14:36; FTR 2:14:36 - 2:14:45.) Counsel could not
provide an estimate of future medical expenses because a recent brain MRI will determine
the future course of treatment. (FTR 2:16:18 – 2:17:20.) Despite Plaintiff not claiming an
impact to her head from the slip and fall, doctors ordered the brain MRI to investigate
whether a brain injury is causing the vertigo and headaches. (FTR 2:17:20 - 2:19:45.)
A removing defendant has the burden to establish federal jurisdiction. Diaz v.
Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). And the removing party must point to facts,
not conclusory allegations. See Williams v. Best Buy Co., 269 F.3d 1316, 1319-20 (11th
Cir. 2001).
In fact, “[w]here, as here, the plaintiff has not pled a specific amount of
damages, the removing defendant must prove by a preponderance of the evidence that the
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amount in controversy exceeds the jurisdictional requirement.” Id. at 1319. A settlement
offer is relevant to the jurisdictional amount but not determinative. Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1097 (11th Cir. 1994). Moreover, courts cannot ignore a claim for
damages merely because the damages are indeterminate. Roe v. Michelin N. Am., Inc., 613
F.3d 1058, 1064 (11th Cir. 2010). Rather, courts “may use their judicial experience and
common sense in determining whether the case stated in a complaint meets federal
jurisdictional requirements.” Id. at 1062. However, the existence of jurisdiction should not
be “divined by looking to the stars.” Lowery v. Alabama Power Co., 483 F.3d 1184, 1215
(11th Cir. 2007).
Having carefully reviewed the pleadings and evidence, the Court finds Defendant has
not carried its burden of proving by a preponderance of the evidence that the amount in
controversy exceeds $75,000. Plaintiff’s special damages are merely $12,000 in medical
expenses, and none of the facts suggest a basis for awarding noneconomic damages five
times greater than this amount. While Plaintiff claims a general right to recover future
medical expenses, neither party has submitted any evidence to show what future medical
treatment is necessary and how that treatment relates to the injuries suffered by Plaintiff in
the slip and fall.
Many courts within the Eleventh Circuit have found no basis for diversity jurisdiction
in similar circumstances. See Cross v. Wal-Mart Stores, LP, No. 7:11-CV-21 HL, 2011 WL
976414, at *2 (M.D. Ga. Mar. 17, 2011) (finding no jurisdiction in slip-and-fall case with
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$45,000 in medicals, allegations of general damages, and a demand letter for $125,000);
Arrington v. Wal-Mart Stores, Inc., No. 7:13-CV-154 HL, 2014 WL 657398, at *1 (M.D. Ga.
Feb. 20, 2014) (finding no jurisdiction in slip-and-fall case with $44,000 in medicals); but
see Farley v. Variety Wholesalers, Inc., No. 5:13-CV-52 CAR, 2013 WL 1748608, at *2
(M.D. Ga. Apr. 23, 2013) (finding jurisdiction in slip and fall case with $13,000 in medicals
and possibility of two future surgeries).
Defendant cites Plaintiff’s pre-suit demand of $100,000, but mere demands are never
dispositive and only worthy of consideration when they provide specific information to show
the demand is a reasonable assessment of the case value. Golden Apple Mgmt. Co. v. GEAC
Computers, Inc., 990 F. Supp. 1364, 1368 (M.D. Ala. 1998). Here, the settlement offer
provides great detail about the circumstances surrounding the fall but does not itemize
damages or provide a calculation to show the reasonableness of the $100,000 demand. (See
doc. no. 18-1.) The demand letter does cite an appellate decision in a slip-and-fall case
where a Richmond County jury awarded $78,000, but the defendant did not appeal the
amount of damages awarded and the decision vaguely describes the plaintiff’s injuries as
“serious.” See Augusta Country Club, Inc. v. Blake, 280 Ga. App. 650, 651, 634 S.E.2d 812,
814 (2006). Plaintiff’s counsel represented that he spoke with the plaintiff’s counsel in
Blake who relayed that the medical bills at issue there were approximately $5,000. (FTR
2:21:06 – 2:21: 57.) Even crediting the assertions these cases are similar enough to warrant
extrapolation to each other, the damages awarded in Blake merely show it is possible
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Plaintiff may recover more than $70,000 in damages, not that it is likely which is the burden
of proof here.
While Plaintiff has made a claim for attorneys’ fees, Defendant has introduced no
evidence as to the basis for such an award or what a reasonable amount would be. “[W]hen a
statutory cause of action entitles a party to recover reasonable attorney fees, the amount in
controversy includes consideration of the amount of those fees.” Cohen v. Office Depot,
Inc., 204 F.3d 1069, 1079 (11th Cir. 2000).
Under Georgia law, attorneys’ fees are
recoverable where a defendant has acted in bad faith, been stubbornly litigious, or caused the
plaintiff unnecessary trouble and expense. O.C.G.A § 13-6-11. No one has explained why
Defendant’s conduct in this litigation would trigger recovery under § 13-6-11, and it is
unlikely that any such award would sufficiently increase the amount in controversy so that it
exceeds $75,000.
IV.
CONCLUSION
Based on the reasons set forth above, the Court REPORTS and RECOMMENDS
that this action be REMANDED for lack of subject-matter jurisdiction and this civil action
be CLOSED.
SO REPORTED AND RECOMMENDED this 10th day of February, 2016, at Augusta,
Georgia
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