Cobb v. Sanders et al
Filing
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MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that REPORTS and RECOMMENDS that this action be REMANDED to the Superior Court of Richmond County and that this civil action be CLOSED. Signed by Magistrate Judge Brian K. Epps on 8/9/2016. (jah) Modified on 8/9/2016 (jah).
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
RHYNIE COBB,
Plaintiff,
v.
TERRY SANDERS; LINDE LLC; and
ZURICH AMERICAN INSURANCE
COMPANY,
Defendants.
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CV 116-073
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
In consideration of the record and oral argument at the August 2, 2016 hearing, the
Court REPORTS and RECOMMENDS this case be REMANDED to the Superior Court
of Richmond County based on lack of subject-matter jurisdiction and this civil action be
CLOSED.
I.
BACKGROUND
Plaintiff’s complaint asserts claims arising out of a vehicle accident that occurred on
May 19, 2014, in Effingham County, Georgia. (Compl., doc. no. 1-2, ¶¶ 5-8.) Plaintiff
alleges Defendant Sanders, as an agent and employee of Defendant Linde LLC, was
following too closely in the tractor-trailer he was operating and struck the rear of Plaintiff’s
tractor-trialer at a high rate of speed. (Id. ¶¶ 7-8.) Plaintiff alleges he suffered severe and
permanent bodily injuries as a direct result of the collision and seeks past, present, and future
medical expenses, as well as past and future lost wages. (Id. ¶¶ 28-30.) Plaintiff also claims
damages for past, present and future pain and suffering, disability, disfigurement, mental
anguish, lost enjoyment of life, and lost earning capacity. (Id. ¶ 32.) Plaintiff further claims
entitlement to “all compensatory, general, special, incidental, punitive, non-economic,
consequential, and/or other damages permitted.” (Id.)
Plaintiff filed the complaint in the Superior Court of Richmond County, and
Defendants filed their Notice of Removal on June 3, 2016, based on diversity of citizenship
and an amount in controversy greater than $75,000. (Notice of Removal, doc. no. 1.)
Defendants premised the removal on the assertion that the lengthy list of indeterminate
damages in the complaint made it “facially apparent” that the requisite amount in
controversy had been established. (Id. ¶ 11.)
On July 8, 2016, this Court issued an Order setting a hearing on August 2, 2016, to
allow Defendants to introduce evidence as to the amount in controversy, finding the
allegations in the notice of removal to be insufficient for this Court to assume jurisdiction.
(Doc. no. 17.) In response to the Order, the parties filed a Stipulation from Plaintiff stating
the value of all damages sustained exceeds $75,000, exclusive of interest and costs, and he
will seek more than $75,000 at trial. (Doc. no. 20.) The Stipulation also includes medical
records documenting $30,901.05 in treatment costs related to the accident and suggesting the
possibility of future surgery. (Id., Ex. A.) Plaintiff claims the accident injured his shoulder,
back, and knee.
(See, e.g., id. at 5.)
More than half of his medical bills related to
chiropractic care. (See id.; doc. no. 22.) The Stipulation also contained a pre-suit demand
letter for $225,000. (Doc. no. 20, Ex. B.)
At the hearing, counsel highlighted various portions of the information already
submitted, but did not offer additional information, verification, or itemization in support of
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the contention this case satisfies the amount-in-controversy requirement. In fact, counsel
clarified that some of the initial damages sought are no longer at issue, i.e., disfigurement, or
currently at risk as lacking substantiation, i.e., lost wages.
II.
DISCUSSION
Generally, a defendant may remove an action from state court when the federal court
would possess original jurisdiction over the subject matter, “except as otherwise expressly
provided by an Act of Congress.” 28 U.S.C. § 1441(a). “The district courts shall have
original jurisdiction of all civil actions where the matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and costs, and is between citizens of different States . .
. .” 28 U.S.C. § 1332(a)(1). The Court construes the removal statute narrowly. Pretka v.
Kolter City Plaza II, Inc., 608 F.3d 744, 766 (11th Cir. 2010).
A removing defendant has the burden to establish federal jurisdiction. See Diaz v.
Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). And the removing party must point to facts,
not conclusory allegations, to meet its burden. See Williams v. Best Buy Co., 269 F.3d
1316, 1319-20 (11th Cir. 2001). Moreover, “[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 amount in controversy exceeds the jurisdictional requirement.” Id. at 1319.
“A court’s analysis of the amount-in-controversy requirement focuses on how much is in
controversy at the time of removal, not later.” Pretka, 608 F.3d at 751.
A settlement offer is relevant to determining the amount in controversy but not
determinative that the case meets the jurisdictional amount. See Burns v. Windsor Ins. Co.,
31 F.3d 1092, 1097 (11th Cir. 1994). Likewise, an indeterminate claim for damages is not
dispositive but should not be ignored by the Court. See Roe v. Michelin N. Am., Inc., 613
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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 (footnote omitted). 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).
Here, Defendants have failed to meet their burden by a preponderance of the evidence
to show that the amount in controversy exceeds $75,000. At the hearing, it was undisputed
that the only itemized damages Plaintiff has incurred from the accident amount to
approximately $31,000 in medical bills.
Thus, in order to meet the jurisdictional
requirement, Defendant must demonstrate at least $44,000 in general damages by Plaintiff.
Defendants seek to rely on Plaintiff’s pre-suit demand, potential future medical bills, and the
ongoing pain and suffering Plaintiff has experienced as a result of the accident to support
jurisdiction. However, none of these are sufficient.
In regards to the pre-suit demand for $225,000, (doc. no. 20, Ex. B), it does not reflect
a reasonable estimate of the value of this case. A settlement offer, while not determinative,
counts for something. Burns, 31 F.3d at 1097. However, what it counts for depends on
whether the offer provides specific information to support Plaintiff’s claim for damages and
whether it offers a reasonable assessment of the value of the claim. See id.; Golden Apple
Mgmt. Co. v. GEAC Computers, Inc., 990 F. Supp. 1364, 1368 (M.D. Ala. 1998); see also
Cross v. Wal-Mart Stores, E., LP, No. 7:11-CV-21, 2011 WL 976414, at *2 (M.D. Ga. Mar.
17, 2011) (noting pre-suit demand letters often amount to mere posturing for settlement
purposes).
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Here, the settlement offer is a brief letter attaching medical bills as of January 21,
2016, totaling approximately $29,900, but it does not itemize damages or provide any type of
calculation as to how the amount of $225,000 was reached. It apparently included much of
the same 229 pages of medical records attached to the pre-hearing Stipulation filed in this
Court and discussed at the hearing as lacking in specifics.
(See doc. no. 20, Ex. A.)
Likewise, Plaintiff’s refusal to sign a stipulation that his damages will not exceed $ 75,000
does not satisfy Defendants’ burden because there are several reasons why a plaintiff may
choose not to bind himself to such a position early in his case. See Williams, 269 F.3d at
1320.
Having reviewed the record and listened to the arguments at the hearing, the Court
finds little to substantiate an assertion of $44,000 in additional damages, whether due to
future medical expenses, pain and suffering, lost enjoyment of life, or lost wages. To the
contrary, the medical evidence in the case is complicated by Plaintiff having had heart
surgery since the time of the accident at issue, an intervening factor which has caused
indecision by Plaintiff concerning whether he will even attempt to seek lost wages as part of
his damages.
Additionally, counsel could offer no itemized estimates on future medical costs
because the case record to date is devoid of helpful imaging evidence or other concrete
medical evidence showing what, if any, future surgery may be necessary as a result of the
accident. In any event, because jurisdiction must exist at the time of removal, the possibility
of future medical expenses is not determinative. Sinclair v. State Farm Mut. Auto. Ins., No.
2:11-CV-320, 2011 WL 2746823, at *2 (M.D. Fla. July 14, 2011) (“The argument that the
expenses will include future medical expenses, past wage loss, future wage loss, and pain
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and suffering is also irrelevant to the inquiry of whether the amount in controversy was
adequate at the time of removal.”).
In sum, the Court cannot conclude that Defendants have met their burden to show by
a preponderance of the evidence the value of this case meets the $75,000 jurisdictional
threshold. Indeed, this finding is in line with the conclusions of other District Courts in the
Eleventh Circuit. See Cross, 2011 WL 976414, at *2 (finding no jurisdiction in slip-and-fall
case with $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, 2014 WL 657398, at *1
(M.D. Ga. Feb. 20, 2014) (finding no jurisdiction in slip-and-fall case with $44,000 in
medicals and insufficient evidence to calculate future monetary losses); but see Farley v.
Variety Wholesalers, Inc., No. 5:13-CV-52, 2013 WL 1748608, at *2 (M.D. Ga. Apr. 23,
2013) (finding jurisdiction in premises liability case with $13,000 in medicals and the
possibility of two future surgeries).
III.
CONCLUSION
Because there is no subject-matter jurisdiction, the Court REPORTS and
RECOMMENDS this action be REMANDED to the Superior Court Richmond County and
this civil action be CLOSED.
SO REPORTED and RECOMMENDED this 9th day of August, 2016, at Augusta,
Georgia.
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