Ballard v. Lewis et al

Filing 18

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, the undersigned Magistrate Judge concludes that Defendants have sufficiently established that the amount in controversy at the time of removal was more than $75,000, and thus, that subject matter jurisdiction exists in this action. Signed by Magistrate Judge Susan L Collins on 11/14/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BARRY BALLARD,
Plaintiff,
v.
DARYL LEWIS, et al.,
Defendants.

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Case No. 1:17-cv-00349-TLS-SLC

OPINION AND ORDER
This Court has an independent obligation to ensure that subject matter jurisdiction exists
in an action before it. See Arbaugh v. Y & H Corp., 546 U.S. 500 (2006); Belleville Catering Co.
v. Champaign Mkt. Place, L.L.C., 350 F.3d 691, 693 (7th Cir. 2003). This Opinion and Order
summarizes the undersigned Magistrate Judge’s inquiry into diversity jurisdiction in this case.
Defendants Daryl Lewis and D.O.C. Trucking, LLC (together, “Defendants”), removed
this case here from the Allen Superior Court on August 15, 2017, based on diversity jurisdiction,
28 U.S.C. § 1332. (DE 1). At the preliminary pretrial conference (DE 12), the Court directed
the parties to file supplemental briefs concerning the amount in controversy, which are now
before the Court (DE 10; DE 11). Both parties assert in their supplemental briefs that the
amount in controversy in this matter exceeds $75,000. (DE 10; DE 11). On November 9, 2017,
the Court held a hearing regarding the parties’ supplemental briefs. (DE 17).
Because the parties both represent that the amount in controversy exceeds $75,000, and
because it is not “legally certain” that the amount in controversy is less than $75,000, the
undersigned Magistrate Judge concludes that diversity jurisdiction under 28 U.S.C. § 1332 exists
in this matter.

A. Factual and Procedural Background
On April 14, 2009, Plaintiff Barry Ballard filed a complaint against Defendants in Allen
Superior Court, alleging that he sustained a personal injury as a result of Defendants’ negligence.
(DE 5). More particularly, Ballard alleges that “a steel bar rolled off of the Defendant’s truck
and struck him on the head” and that as a result of the incident, he “sustained physical injuries
which may be permanent” and that he “continues to suffer physical pain.” (DE 5 ¶¶ 1, 4). In his
complaint, Ballard seeks to recover medical expenses, lost wages, and “loss of a whole and
useful life.” (DE 5 ¶ 5).
On August 15, 2017, Defendants removed the case to federal court, asserting that the
Court has diversity jurisdiction under 28 U.S.C. § 1332. (DE 1). In their Notice of Removal,
Defendants state that Ballard refused to admit in response to a request for admission that his total
damages in this case are less than $75,000; instead, Ballard affirmatively responded that his total
damages exceed $75,000. (DE 1-1 at 1; see DE 15-1). A preliminary pretrial conference was
held on September 27, 2017, at which the Court called for briefing on whether the amount in
controversy actually exceeds $75,000. (DE 12).
In his supplemental brief filed on October 11, 2017, Ballard asserts that his “damages
arising from this case, which include special damages, pain and suffering, and disfigurement,
exceed $75,000.00.” (DE 10 at 1). More particularly, Ballard recites:
Plaintiff was injured on August 12, 2015, when a steel bar rolled
off a semi-trailer and struck him in the head. The Plaintiff was
subsequently treated at Lutheran Hospital’s emergency room due
to head and neck pain and underwent x-rays, CT scans, and an
MRI through Lutheran Hospital. The Plaintiff has incurred special
damages of roughly $10,500.00 at this time for treatment of his
injuries and has suffered and continues to suffer ongoing pain.
Additionally, the Plaintiff has developed a nodular bump on the
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top of his head where the steel bar struck him, which may be
permanent.
(DE 10 at 1). In Defendants’ supplemental brief also filed on October 11, 2017, Defendants state
that: (1) Ballard alleges that his injury resulted in “lost wages, medical expenses, permanent
physical injuries and pain and suffering”; and (2) that Ballard refused to admit that his damages
were less than $75,000, indicating instead that his damages exceed $75,000. (DE 11 ¶¶ 2, 6, 7).
A hearing was held on November 9, 2017, regarding the parties’ supplemental briefs.
(DE 17). Ballard and his counsel appeared in person; Defendants’ counsel appeared
telephonically. (DE 17).
B. Applicable Legal Standard
A defendant in state court may remove a case to a federal district court only if the district
court has original jurisdiction over the action. See 28 U.S.C. § 1441; Caterpillar Inc. v.
Williams, 482 U.S. 386, 392 (1987). If the district court does not have jurisdiction, the case must
be remanded. 28 U.S.C. § 1447(c). When ruling on a motion to remand,“[c]ourts should
interpret the removal statute narrowly and presume that the plaintiff may choose his or her
forum,” with any doubt regarding jurisdiction resolved in favor of remand. Battle v.
Countrywide Home Loans, Inc., No. 05 C 3022, 2005 WL 2284250, at *1 (N.D. Ill. Sept. 15,
2005) (quoting Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)). The burden of
establishing federal jurisdiction falls on the party seeking removal. Oshana v. Coca-Cola Co.,
472 F.3d 506, 511 (7th Cir. 2007); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540 (7th
Cir. 2006); Doe, 985 F.2d at 911.
In this case, subject-matter jurisdiction could only be based on diversity of citizenship.

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28 U.S.C. § 1332(a)(1). There is no question that the parties are diverse;1 the only question for
the Court is whether the amount in controversy exceeds $75,000. “The amount in controversy is
the amount required to satisfy the plaintiff’s demands in full on the day the suit begins, or in the
event of removal, on the day the suit was removed.” Oshana, 472 F.3d at 511 (citations
omitted). The proponent of jurisdiction “has the burden of showing by a preponderance of the
evidence facts that suggest the amount-in-controversy requirement is met.” Id. (citing Meridian
Sec. Ins. Co., 441 F.3d at 543); see Bailey v. Conocophillips Co., No. 06-677-JLF, 2006 WL
3487655, at *3 (S.D. Ill. Dec. 4, 2006) (“A defendant seeking to establish jurisdiction on the
basis of diversity must provide ‘competent proof’ that the amount in controversy exclusive of
interest and costs exceeds $75,000.” (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S.
178, 189 (1936))).
When the complaint does not establish the amount in controversy, “a good-faith estimate
of the stakes is acceptable if it is plausible and supported by a preponderance of the evidence.”
Oshana, 472 F.3d at 511 (citation omitted). The Seventh Circuit Court of Appeals has suggested
several ways in which this may be done: “by contentions interrogatories or admissions in state
court; by calculation from the complaint’s allegations . . . ; by reference to the plaintiff’s
informal estimates or settlement demands . . . ; or by introducing evidence, in the form of
affidavits from the defendant’s employees or experts, about how much it would cost to satisfy
the plaintiff’s demands.” Meridian Sec. Ins. Co., 441 F.3d at 541 (citations omitted); see
Malinowski v. Walgreen Co., No. 2:08-CV-173 RM, 2008 WL 2704740, at *2 (N.D. Ind. July 3,

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The parties represent that Ballard is a citizen of Indiana, that Lewis is a citizen of the state of Ohio, and
that Douglas Crites, the sole member of D.O.C. Trucking, LLC, is a citizen of Ohio. (DE 11 ¶¶ 3, 4).

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2008). “Once the defendant in a removal case has established the requisite amount in
controversy, the plaintiff can defeat jurisdiction only if it appears to a legal certainty that the
claim is really for less than the jurisdictional amount.” Oshana, 472 F.3d at 511 (citations and
internal quotations marks omitted).
C. Discussion
Ballard affirmatively represents that what he “hopes to get out of this litigation” exceeds
$75,000. (DE 10; DE 15-1); Johnson v. Fortis Ins. Co., No. 2:05-CV-20 PPS-PRC, 2006 WL
1707242, at *2 (N.D. Ind. June 15, 2006); see Brill v. Countrywide Home Loans, Inc., 427 F.3d
446, 448 (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 determining the amount in controversy, “[t]he demonstration concerns what the plaintiff is
claiming . . . , not whether plaintiff is likely to win or be awarded everything he seeks.” Brill,
427 F.3d at 449.
In a request for admission, Defendants asked Ballard to admit that his total claimed
damages do not exceed $75,000. (DE 1-1; DE 15-1). Ballard denied this request and
affirmatively responded that his “damages do exceed $75,000.00.” (DE 1-1; DE 15-1). Thus,
Defendants used one of the methods contemplated by the Seventh Circuit—requests for
admission—to determine what Ballard seeks to recover in this case. See Meridian Sec. Ins. Co.,
441 F.3d at 541.
Although Ballard claims just $10,500 in medical expenses to date, he alleges that he “has
suffered and continues to suffer ongoing pain” and that he “has developed a nodular lump on the
top of his head where the steel bar struck him, which may be permanent.” (DE 10 at 1). At the

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hearing, Ballard and his counsel explained that the lump is tender to the touch and easily
observable by others (see DE 10-1); Ballard often wears a hat to cover the nodule. Ballard’s
counsel indicated that the nodular lump is expected to be permanent unless Ballard undergoes
surgery to remove it, which would likely result in more scarring and expense.
Ballard’s counsel also stated at the hearing that Ballard had a neck fusion 20 years ago,
which had not bothered him for 20 years. However, since the accident giving rise to this case,
Ballard contends that his neck problem has reoccurred in that he has again started to experience
neck pain, headaches, and radicular symptoms down his arms. He plans to seek treatment for
this condition in the next month, given that he recently obtained health insurance.
In addition to recovery of past and future medical expenses, Ballard seeks damages for
lost wages. Ballard’s counsel stated at the hearing that Ballard was off work for a month after
the accident, and that he was then laid off from his general maintenance job for eight more
months, because his employer purportedly would no longer let him perform that job due to his
injury. While Ballard has now returned to a different job, Ballard estimated that he lost
approximately $39,000 in wages after the accident.
Ballard also seeks damages for pain and suffering, disfigurement, and loss of a whole and
useful life. (DE 5; DE 10). As explained above, Ballard’s counsel indicates that the nodular
lump is easily observable by others (see DE 10-1), is tender to the touch, and impacts Ballard’s
daily life skills, at least to some extent. Ballard also stated that while he has now returned to
work, he takes up to 16 aspirin a day to get through a workday due to his pain and other
symptoms. He also stated that he very much enjoyed, and now misses, his job in general
maintenance that he had at the time of the injury.

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In the face of both Ballard’s and Defendants’ representations that Ballard seeks to
recover more than $75,000 in this case, the Court cannot conclude with “legal certainty” that
Ballard’s claim is really for less than that amount. See Oshana, 472 F.3d at 511. Consequently,
the undersigned Magistrate Judge finds that diversity jurisdiction exists in this action.
D. Conclusion
For the foregoing reasons, the undersigned Magistrate Judge concludes that Defendants
have sufficiently established that the amount in controversy at the time of removal was more
than $75,000, and thus, that subject matter jurisdiction exists in this action.
SO ORDERED.
Dated this 14th day of November 2017.
/s/ Susan Collins
Susan Collins
United States Magistrate Judge

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