Shaver et al v. Odell

Filing 34

ORDER GRANTING 9 Motion to Remand to State Court. Signed by Judge William D. Stiehl on 3/30/12. (bjw)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS

MEGHAN C. SHAVER,
by and through her next friend
and mother Jennifer Ford,
PAIGE N. CHAMBERLAIN,
by and through her next friend
and mother Kimberly Chamberlain,
and JENNIFER FORD,
Plaintiffs,
v.
VERNON L. ODELL,
Defendant.

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No. 11-CV-418-WDS

MEMORANDUM & ORDER
STIEHL, District Judge:
Plaintiffs Meghan C. Shaver, Paige N. Chamberlain, and Jennifer Ford were in an
auto accident with defendant Vernon L. Odell and sued for damages in state court. 1
Defendant removed the action here on diversity grounds, 28 U.S.C. § 1332 (Doc. 3). Now
before the Court are plaintiffs’ motion to remand (Docs. 9 & 12) and defendant’s response
(Doc. 14). Plaintiffs principally argue that they have submitted a binding affidavit that
limits their claims to less than $75,000. Therefore, they believe the Court does not have
subject-matter jurisdiction.

BACKGROUND
In August 2010, plaintiff Meghan C. Shaver was driving through an intersection
with passengers Paige N. Chamberlain and her mother, Jennifer Ford. Defendant Vernon
1

The action is brought on behalf of Shaver through her next friend and mother, Jennifer Ford, and on behalf
of Chamberlain through her next friend and mother, Kimberly Chamberlain.

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L. Odell either ran through the stop sign or didn’t yield and crashed into their car. Plaintiffs
filed a six-count complaint against defendant in the Circuit Court for the Twentieth
Judicial Circuit, St. Clair County, Illinois (Case No. 10-L-533). Shaver and Chamberlain
seek damages for personal injuries, and Ford seeks to recover for the damage to her car.
Plaintiffs originally asked for damages “not to exceed $50,000” in their complaint
(Doc. 3, Ex. A1, pp. 3–6) and filed an affidavit under Illinois Supreme Court Rule 222
stating that the damages sought by each plaintiff did not exceed $50,000 (Doc. 3, Ex. A1,
p. 7). 2 They later amended their complaint, and this time plaintiffs Shaver and
Chamberlain each asked for damages “in excess of $50,000.00, but less than $75,000.00,”
costs, and any further relief deemed necessary and just (Doc. 3, Ex. A3, pp. 20–22). Shaver
and Chamberlain are vague about the nature of their injuries, only saying they have
received treatment from medical professionals and will incur further medical expenses in
the future. They amended their Rule 222 affidavit as well, stating that their damages,
individually, exceed $50,000 but are “less than $75,000.00” (Doc. 3, Ex. A3, p. 16).
Plaintiffs have not made defendant a settlement offer (Doc. 3, p. 9).
Defendant tried to tease out further details about Shaver and Chamberlain’s
damages. In answer to an interrogatory asking her to itemize all damages, in March 2011
Shaver said her current medical expenses were $9,042.38. She had no lost income from
missing work or any other expenses or losses. She also responded that her damages for loss
of normal life, increased risk of harm, and pain and suffering were “to be determined by
jury” (Doc. 3, p. 7). About a month later she amended her answer saying her damages
exceeded $50,000 but were less than $75,000.
Chamberlain also answered interrogatories in March 2011, listing her bills for
physicians and health-care professionals as $8,874.78, lost wages as $148.50 for missing
six days of work, and no other expenses or losses (Doc. 3, pp. 5–6). Several weeks later,
2

The affidavit is actually signed by plaintiffs’ attorney, Christopher K. Geldmacher.

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Chamberlain responded to an additional interrogatory asking her to itemize all damages.
She only answered “[m]edical expenses, past and future” with no dollar amount because
she allegedly had not completed her medical attention. She added that her loss of normal
life, increased risk of harm, and pain and suffering were “to be determined by jury” and
that her damages exceeded $50,000 but were less than $75,000 (Doc. 3, p. 8).
Defendant also served plaintiffs with requests for admissions. He asked each of
them to admit that, as a result of the allegations in the complaint, they have “not suffered
injuries or damages in excess of $75,000.00”, and will “not seek nor accept damages in
excess of $75,000.00 from the trier of fact” (Doc. 3, Exs. B & D, pp. 1–2). After originally
objecting, Shaver and Chamberlain later responded “Deny” to each question (Doc. 3, Exs.
P & Q).
On receiving plaintiffs’ denials, defendant removed this action based on diversity
jurisdiction, 28 U.S.C. § 1332(a) (Doc. 3). The parties agree that diversity of citizenship
exists. As to the amount in controversy, separate claims of multiple plaintiffs against a
single defendant cannot be aggregated, McMillian v. Sheraton Chi. Hotel & Towers, 567
F.3d 839, 844 (7th Cir. 2009); Clark v. State Farm Mut. Auto. Ins. Co., 473 F.3d 708, 711
(7th Cir. 2007), so the Court must consider the amount in controversy as to each plaintiff
Shaver and Chamberlain. The parties agree that Ford’s damages are less than $50,000 and
that, if diversity is satisfied, the Court will have supplemental jurisdiction over her claims,
28 U.S.C. § 1367(a). At issue is whether defendant has shown it to be likely that the
amount in controversy for either plaintiff Shaver or Chamberlain exceeds $75,000.

DISCUSSION
A civil action may be removed to federal court if the district court has original
jurisdiction. 28 U.S.C. § 1441. Courts have original jurisdiction of civil actions between
citizens of different states “where the matter in controversy exceeds the sum or value of

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$75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). Jurisdiction depends on the
amount in controversy when the federal suit began. Meridian Sec. Ins. v. Sadowski, 441
F.3d 536, 538 (7th Cir. 2006); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S.
283, 293 (1938); see also Carroll v. Stryker Corp., 658 F.3d 675, 680 (7th Cir. 2011)
(amount in controversy is evaluated as of the time of removal). In addition, the amount in
controversy stated in the plaintiff’s complaint generally controls, unless it is legally
impossible. Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813, 815 (7th Cir. 2006);
Meridian, 441 F.3d at 541.
But if the complaint does not establish the amount in controversy, the party
invoking federal jurisdiction can use other evidence. See Meridian Sec. Ins. Co. v.
Sadowski, 441 F.3d 536, 541–42 (7th Cir. 2006); Chase v. Shop ‘N Save Warehouse
Foods, Inc., 110 F.3d 424, 427–28 (7th Cir. 1997). The party must set out the basis of
federal jurisdiction and prove any contested factual allegation. Meridian, 441 F.3d at 540
(citing Fed. R. Civ. P. 8(a)(1) & 12(b)(1)); Carroll v. Stryker Corp., 658 F.3d 675, 680 (7th
Cir. 2011). It must prove the jurisdictional facts by a preponderance of the evidence.
Blomberg v. Serv. Corp. Intern., 639 F.3d 761, 763 (7th Cir. 2011); Meridian, 441 F.3d at
543. Moreover, the party’s burden, in the case of a defendant who removes, is to show
“what the plaintiff hopes to get out of the litigation,” not that the plaintiff will collect more
than $75,000 if he prevails. Rising-Moore, 435 F.3d at 816; Brill v. Countrywide Home
Loans, Inc., 427 F.3d 446, 449 (7th Cir. 2005) (“[P]art of the removing party’s burden is to
show not only what the stakes of the litigation could be, but also what they are given the
plaintiff’s actual demands.”). When the plaintiff provides little information about the value
of his claims, “a good-faith estimate of the stakes is acceptable if it is plausible and
supported by a preponderance of the evidence.” Oshana v. Coca-Cola Co., 472 F.3d 506,
511 (7th Cir. 2006) (citing Rubel v. Pfizer, Inc., 361 F.3d 1016, 1020 (7th Cir. 2004)).

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Courts should interpret the removal statute narrowly and resolve any doubts in
favor of the plaintiff’s choice of forum in state court. Schur v. L.A. Weight Loss Centers,
Inc., 577 F.3d 752, 758 (7th Cir. 2009); Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th
Cir. 1993).

ANALYSIS
The amount in controversy cannot be determined from the complaint, so defendant
offers other evidence. He relies on essentially two things: (1) plaintiffs’ denials in response
to his request for admissions and (2) his belief that plaintiffs’ professed limitations on
damages to less than $75,000 are not binding.
In response to defendant’s request for admissions, Shaver and Chamberlain denied
that they had not suffered injuries or damages over $75,000, and that they would not seek
or accept damages over that amount. Defendant contends that such a denial is sufficient
grounds for removal according to Oshana v. Coca-Cola Co., 472 F.3d 506 (7th Cir. 2006),
Reid v. Kohl’s Dep’t Stores, Inc., 545 F.3d 479 (7th Cir. 2008), and Chase v. Shop ‘N Save
Warehouse Foods, Inc., 110 F.3d 424 (7th Cir. 1997). 3 These cases, however, illustrate
why plaintiffs’ motion to remand must be granted.
In Oshana v. Coca-Cola, the court of appeals summarized that the district court had
three pieces of information before it when deciding whether it had jurisdiction: The
defendant’s good-faith belief that the amount in controversy exceeded $75,000; facts
suggesting the amount the plaintiff sought may exceed that amount; and the plaintiff’s
“refusal to say otherwise.” Oshana, 472 F.3d at 512. The plaintiff was seeking actual

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In Reid v. Kohl’s Department Stores, there was little evidence in the record for the court of appeals to
establish the amount in controversy, but the plaintiff had admitted in discovery she was seeking damages in
excess of $75,000. 545 F.3d 479, 481 n.1 (7th Cir. 2008). It is worth noting that the court of appeals did not
merely take her at her word. It commented that she claimed to have suffered severe and debilitating injuries
that required “a large sum of money for medical, hospital and doctor care and attention.” Id. And in a
deposition she had discussed having back and side injuries that required physical therapy. Id. The defendant
stated its good-faith belief in its notice of removal that the amount in controversy exceeded the $75,000. Id.

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damages, disgorgement of the defendant’s profits, and attorney’s fees. Id. Notably, the
defendant’s profits during the relevant time period were in the millions. Id. The court
found it “doubtful” the plaintiff could have recovered all the profits. Id. But when it
considered that the plaintiff was also seeking attorney’s fees and compensatory damages,
her refusal to admit that the combination of recoveries would not exceed $75,000 “raised
the reasonable inference that it would.” Id. Finally, the court added, the statute under which
the plaintiff was suing permitted punitive damages as well, and she could have amended
her complaint to include those. Id. Consequently, her refusal to admit she would not seek
more than $75,000 in compensatory damages, disgorged profits, punitive damages, and
attorney’s fees made it “plausible that more than $75,000 was at stake.” Id.
The plaintiff’s refusal to respond to a request to admit was also a factor the court of
appeals considered in Chase v. Shop ‘N Save Warehouse Foods, Inc. when it affirmed the
district court’s finding that the amount in controversy exceeded $50,000 (the minimum for
diversity at the time). 110 F.3d 424, 427, 428 (7th Cir. 1997). As in Oshana, the court had
other evidence of the amount in controversy before it. The plaintiff had made a settlement
offer to the defendant of $120,000, which, the court observed, was over twice the
jurisdictional amount. Id. at 427, 430. The plaintiff alleged serious, disabling physical and
mental injuries that would result in loss of future earning potential. Id. The court later
referred the plaintiff’s allegations as a “laundry list of serious and disabling injuries.” Id. at
430 (citing Jeffries v. Silvercup Bakers, Inc., 434 F.2d 310, 311–12 (7th Cir. 1970)). And
the district court had denied remand on the same facts in an earlier action between the
same parties. Id. at 428.
Here, plaintiffs Shaver and Chamberlain refused to admit to damages less than
$75,000. But, as shown in Oshana and Chase, the Court must look to other evidence as
well to establish the jurisdictional facts, which is consistent with the Court’s “independent
obligation” to ensure jurisdiction is proper. See, e.g., Smith v. Am. Gen. Life and Accident

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Ins. Co., Inc., 337 F.3d 888, 893 (7th Cir. 2003); see also Willyard v. Wal-Mart Stores,
Inc., No. 08-cv-492-DRH, 2009 WL 303636, at *3 (S.D. Ill. Feb. 6, 2009) (finding the
plaintiff’s estimate of over $50,000 in damages and allegations of severe and permanent
injuries were not sufficient “without other supporting evidence” to establish the amount in
controversy).
In contrast to the plaintiff in Oshana, Shaver is not seeking the disgorgement of
potentially millions of dollars in profits with the possibility of punitive damages. Her total
medical expenses—almost seven months after the car accident—were $9,042.38.
Chamberlain’s medical expenses were almost identical. There is no suggestion of punitive
damages here. Moreover, in contrast to the plaintiff in Chase, plaintiffs here do not give
anything approaching a laundry list of serious and disabling injuries. They make vague
statements about receiving treatment from medical professionals, past and future medical
expenses, and pain and suffering in an amount to be determined by a jury. The Court does
not find it plausible without some evidence that plaintiffs’ claims of future medical
expenses, or pain and suffering, will reach the rest of the way to $75,000. See McMillian v.
Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844–45 (7th Cir. 2009) (finding claims for
“future medical expenses” and “pain and suffering” could not account for jurisdictional
shortfall without competent proof). This case is also unlike Chase because plaintiffs here
have not made a settlement offer over the jurisdictional amount, and the Court has not
previously denied remand in an earlier action between these parties.
Defendant also cites the district-court decision denying a motion to remand in
Cunningham v. Manpower Prof’l Servs., No. 07-cv-656-JPG, 2008 WL 754004 (S.D. Ill.
March 18, 2008). Cunningham though, like Oshana and Chase, is distinguishable based on
the relief sought. It was a retaliation claim against the plaintiff’s employer, and the plaintiff
was seeking lost wages into the future indefinitely. Id. at *3. Thus the court found that
“[e]ven a minimal rate of pay has the potential to amount to more than $75,000 through

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future years.” Id. The court also considered other relief was possible, including punitive
damages. Id. at *2–3. Here, Shaver did not miss any work, and Chamberlain missed only
six days ($148.50 in lost wages). Their other lack of damages has already been discussed.
The Court therefore FINDS that defendant has not met his burden of showing by a
preponderance of evidence that the amount in controversy exceeds $75,000. The Court
does not have jurisdiction, and this matter must be remanded to the state court.
The parties primarily dispute whether the limitation on damages to less than
$75,000 in plaintiffs’ amended Rule 222 affidavit is binding. If it is, then this matter must
be remanded for lack of jurisdiction. However, in light of the Court’s finding that the
amount-in-controversy requirement has not been met, the Court does not have jurisdiction
and cannot decide that issue.

CONCLUSION
Accordingly, the Court GRANTS plaintiffs’ motion to remand (Doc. 9). This
action is REMANDED to the Circuit Court for the Twentieth Judicial Circuit, St. Clair
County, Illinois.
IT IS SO ORDERED.
DATED: March 30, 2012
/s/ WILLIAM D. STIEHL
DISTRICT JUDGE

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