Contractor's Equipment Co. v. BMO Harris Equipment Finance Company
MEMORANDUM AND ORDER granting 8 Motion to Remand to State Court; denying as moot 9 Motion to Amend Complaint. Signed by District Judge John W. Lungstrum on 4/27/2012. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CONTRACTOR’S EQUIPMENT CO.,
BMO HARRIS EQUIPMENT FINANCE
COMPANY f/k/a M&I EQUIPMENT
Case No. 12-2055-JWL
MEMORANDUM AND ORDER
Plaintiff Contractor’s Equipment Co. (“CEC”) filed a petition1 in the District
Court of Cherokee County, Kansas, alleging two counts against BMO Harris
Equipment Finance Company, formerly known as M&I Equipment Finance Company
(“BMO”): (1) conversion of $29,000, and (2) refusal to honor an agreed upon line of
credit, resulting in monetary damages “in an amount less than $75,000” (Pet. 3-4).
Alleging diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332 and 1441,
the defendant removed the suit to this federal court (docs. 1, 3). This matter comes
before the court on plaintiff’s motions to remand this matter to state court (doc. 8)
Because Contractor’s Equipment Co.’s suit originally was filed in Kansas state
court, it filed a petition, stating its claims, which is the equivalent of a complaint in
and to amend its petition (doc. 9).
For the reasons set forth below, plaintiff’s motion to remand is granted and
plaintiff’s motion to amend its petition is denied as moot.
A party may remove a case to federal district court if the federal court could
have exercised original jurisdiction over the matter. 28 U.S.C. § 1441(a); Caterpillar
Inc. v. Williams, 482 U.S. 386, 392 (1987). The court must remand a case back to
state court, however, “if at any time before final judgment it appears that the district
court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c). Because federal courts
are courts of limited jurisdiction, there is a presumption against exercising removal
jurisdiction. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). In line
with this, “statutes conferring jurisdiction upon the federal courts, and particularly
removal statutes, are to be narrowly construed in light of our constitutional role as
limited tribunals.” Pritchett v. Office Depot, Inc., 404 F.3d 1232, 1235 (10th Cir.
2005) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941)).
The party invoking the court’s removal jurisdiction has the burden to establish the
court’s jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002). Any
doubts must be resolved in favor of remand. Archuleta, 131 F.3d at 1359; Laughlin,
50 F.3d at 873.
Because the plaintiff’s claims allege only violations of state law and no federal
question is at issue, removal here must be based upon diversity jurisdiction. 28
U.S.C. § 1332(a). Pursuant to § 1332, this court “shall have original jurisdiction . . .
where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs . . . .” Id. In addition, “complete diversity” is required such that
“diversity jurisdiction attaches only when all parties on one side of the litigation are
of a different citizenship from all parties on the other side of the litigation.” Depex
Reina P’ship v. Texas Intern. Petroleum Corp., 897 F.2d 461, 463 (10th Cir. 1990).
In applying § 1332 to this case, the plaintiff CEC is deemed a Kansas citizen,
and defendant BMO is deemed a Wisconsin citizen. The citizenship of the parties is
undisputed; indeed, the only issue regarding this court’s diversity jurisdiction is the
amount in controversy.
A. Amount in Controversy
The party invoking federal court jurisdiction bears the burden of proving that
all of the requirements for diversity jurisdiction are satisfied. McPhail v. Deere &
Co., 529 F.3d 947, 954-55 (10th Cir. 2008). “The amount in controversy is ordinarily
determined by the allegations of the complaint, or, where they are not dispositive, by
the allegations in the notice of removal.” Laughlin, 50 F.3d at 873. If the complaint
does not demand a specific amount of recovery, the defendant must affirmatively
establish jurisdiction by proving, by the preponderance of evidence, jurisdictional
facts to show the case may involve more than $75,000. McPhail, 529 F.3d at 955.
Here, the original petition filed by plaintiff in state court sought judgment for
conversion of $29,000 and damages in an amount less than $75,000 (Pet. 4). Thus,
the original petition does not demand a specific amount of recovery greater than
Turning to defendant’s notice of removal, BMO offers two arguments in
support of its contention that the amount in controversy threshold is met for diversity
jurisdiction. First, BMO argues that plaintiff’s failure to comply with Kansas’s
pleading requirements renders the jurisdictional threshold met. BMO states:
Kansas Rules of Civil Procedure require that if the Plaintiff is seeking
damages in a sum of $75,000 or less, plaintiff “must specify the amount
sought as damages.” K.S.A. 60-208(a)(2). If, however, Plaintiff is
seeking damages in excess of $75,000, plaintiff should not state a specific
dollar amount. K.S.A. 60-208(a)(2). Given the Kansas pleading
requirements for damages, Plaintiff’s statement that it seeks damages of
“less than $75,000 supports a conclusion that the damages sought are in
Defendant cites no authority, and the court found none, supporting such an interpretation
of Kansas’s pleading requirements. As such, BMO’s first argument fails to satisfy
Second, citing Watson v. Blankinship, 20 F.3d 383 (10th Cir. 1994), BMO
contends that the amount in controversy threshold is met because plaintiff intends to seek
The court is uncertain whether defendant intended to quote authority for its
contention that “less than $75,000 supports a conclusion that the damages sought are in
fact $75,000,” as defendant included only one set of quotation marks.
punitive damages.3 In Watson, plaintiffs brought suit in federal court, claiming actual
and punitive damages, and defendant challenged federal jurisdiction. Defendant argued
that plaintiffs sought punitive damages in bad faith, and, as such, did not meet the
amount in controversy. Id. at 386. The Tenth Circuit found the district court correctly
determined that plaintiffs had a good faith belief that they were entitled to punitive
damages at the time the pleadings were filed, and, thus, the district court properly
exercised diversity jurisdiction. Id. at 388.
Watson is distinguishable from the case here on a number of grounds. Watson
does not address circumstances where the defendant removes a case to federal court, and,
as such, does not address circumstances where the defendant carries the burden of
satisfying diversity jurisdiction. More importantly, whereas in Watson the plaintiffs
actually filed a claim of punitive damages, here, defendant BMO offers only speculation
that plaintiff CEC will seek to amend its pleading to include a claim for punitive
damages. Finally, Watson is distinguishable because the jurisdictional requirement was
met based on information provided in the plaintiffs’ pleading. Here, as stated above,
plaintiff’s petition does not demand a specific amount of recovery greater than $75,000.
While defendant correctly asserts that the court may consider punitive damages
Under Kansas law, no tort claim for punitive damages is allowed in a petition
unless the court enters an order allowing an amended pleading that includes a claim for
punitive damages to be filed. See Kan. Stat. Ann. 60-3701. At this time, plaintiff CEC
has not sought an order allowing a claim for punitive damages. Defendant BMO,
however, has provided the court with a copy of correspondence in which plaintiff CEC
states punitive damages are allowable in this matter (doc. 3, attach. 2).
in determining the amount in controversy, plaintiff CEC has not advanced a claim for
punitive damages. It would be improper for the court assert jurisdiction based on
speculation that BMO might seek punitive damages.
As the party asserting federal jurisdiction, BMO bears the burden of proof. This
burden requires defendant to affirmatively establish the satisfaction of the threshold
amount in controversy. BMO has failed to satisfy this burden. As such, the Court lacks
subject matter jurisdiction and must remand the case to state court.
B. Motion to Remand and Amend the Petition
Plaintiff CEC seeks to amend its petition by withdrawing its second cause of
action (doc. 9) and seeks to remand this matter to state court (doc. 8). As the court
concludes that it lacks subject matter jurisdiction in this matter, plaintiff’s motion to
remand (doc. 8) is granted. Plaintiff’s motion to amend petition (doc. 9) is denied as
moot and may be taken up in state court.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff’s motion
to remand for lack of subject matter jurisdiction (doc. 8) is granted.
IT IS FURTHER ORDERED BY THE COURT that plaintiff’s motion to
amend petition (doc. 9) is denied as moot.
IT IS SO ORDERED this 27th day of April, 2012.
s/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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