Shughart v. Sens

Filing 9

MEMORANDUM AND ORDER granting 4 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge J. Thomas Marten on 12/28/2016. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KERSTAIN SHUGHART,
Plaintiff,
vs.

Case No. 16-1360-JTM

ASHLEY SENS,
Defendant.

MEMORANDUM AND ORDER

This action arises from an October 30, 2015 automobile accident in Hiawatha,
Kansas, when defendant Ashley Sens backed her car out of a parking stall and struck a car,
driven by plaintiff Kerstain Shughart, stopped in traffic behind her. Shughart subsequently
commenced this action for personal injury, and the defendant has moved to dismiss the
action contending that the amount in controversy cannot possibly reach the amount
required for federal jurisdiction.
Sens argues that Shughart could not have sustained $75,000 in damages, citing the
Accident Report which indicates that the accident occurred when Sens backed up three to
four feet from a parking stall and struck the rear passenger door of Shughart’s vehicle,
which was stopped in traffic and waiting to proceed. Sens also submits an affidavit stating
that she was traveling no more than five miles per hour at the time the impact dented the

rear passenger door. Sens states that neither she nor her infant were injured, and there was
no apparent injury to Shughart.
Shughart has submitted her own affidavit. She states that Sens backed up some six
to ten feet, and was moving more than ten miles per hour at the moment of impact. She
states that she suffered “a terrifying panic attack” at the scene, and that shortly after the
accident, she experienced pain in her neck, back, and shoulder. She states that she suffered
a “cervical sprain, lumbar sprain, dorsalgia and radiculopathy of the cervical region,” and
incurred medical expenses for these conditions until April, 2016. She states that she still
suffers from pain, anxiety, and depression, and will need continuing chiropractic treatment
in the future.
The rule governing dismissal for want of jurisdiction in federal court is that,
unless the law provides otherwise, the amount claimed by the plaintiff
controls if the claim is apparently made in good faith. St. Paul Indemnity Co.
v. Red Cab Co., 303 U.S. 283, 288–89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). It must
appear to a legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal. Id. The burden is on the party
asserting jurisdiction to show it is not a legal certainty that the claim is less
than the jurisdictional amount. See Watson v. Blankinship, 20 F.3d 383, 386
(10th Cir.1994). A plaintiff's allegations in the complaint alone can be
sufficient to make this showing. “Although allegations in the complaint need
not be specific or technical in nature, sufficient facts must be alleged to
convince the district court that recoverable damages will bear a reasonable
relation to the minimum jurisdictional floor.” State Farm Mut. Auto. Ins. Co.
v. Narvaez, 149 F.3d 1269, 1272 (10th Cir.1998) (quoting Gibson v. Jeffers, 478
F.2d 216, 221 (10th Cir.1973)).
Adams v. Reliance Standard Life Ins., 225 F.3d 1179, 1183 (10th Cir. 2000).
Once it is established that the sum claimed by the plaintiff is made in good faith it
controls as the amount in controversy. Dart Cherokee Basin Operating Co., LLC v. Owens, 135
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S. Ct. 547, 553 (2014). The legal certainty standard is a very high standard, defined as
“absence of doubt; accuracy; precision; definite. The quality being specific, accurate, and
distinct.” Woodman of World Life Ins. Society v. Manganaro, 342 F.3d 1213 (10th Cir. 2003).
“[A] party seeking federal jurisdiction [need] show only ... that ‘a fact finder might legally
conclude’ that damages exceed the statutory amount.” Hammond v. Stamps.com, Inc., 2016
WL 7367770, *2 (10th Cir. Dec. 20, 2016) (quoting Hartis v. Chicago Title Ins., 694 F.3d 935,
944 (8th Cir. 2012) (quoting Bell v. Hershey Co., 557 F.3d 953, 959 (8th Cir. 2012) (quoting
Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002)))) (emphasis added in Bell). The standard
makes it “difficult for a dismissal to be premised on the basis that the requisite
jurisdictional amount is not satisfied.” Woodman, 342 F.3d at 1216 (citing 14B Wright, Miller
& Coooper, FED. PRACTICE & PROCEDURE: JURISDICTION, 3d § 3702, at 97-98 (1998).
But the standard is not insuperable. When the presumption is challenged, the
plaintiff must show that the assertion that the claim exceeds the requisite jurisdictional
amount in controversy is made in good faith. Watson v. Blankinship, 20F. 3d 383, 386 (10th
Cir. 1994).
“Where, as here, the defendant challenges the plaintiff's allegation of the
amount in controversy, the plaintiff must support its assertion with
‘competent proof.’” [Rexford Rand Corp. v. Ancel, 58 F.3d 1215, 1218 (7th
Cir.1995)] (quoting McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189,
56 S.Ct. 780, 80 L.Ed. 1135 (1936)).The plaintiff must prove the “jurisdictional
facts by a preponderance of the evidence.” Meridian Sec. Ins. Co. v. Sadowski,
441 F.3d 536, 543 (7th Cir.2006). To satisfy this burden, a party must do more
than “point to the theoretical availability of certain categories of damages.”
Am. Bankers Life Assur. of Florida v. Evans, 319 F.3d 907, 909 (7th Cir.2003).
McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir.2009) (footnote
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omitted). “If the amount becomes an issue, as in the case at bar, the trial court must make
a determination of the facts.” Emland Builders v. Shea, 359 F.2d 927, 929 (10th Cir. 1966).
In the present case, the plaintiff alleges that she has incurred some $15,000 in
medical expenses, only about half of which have been paid. The plaintiff attempts to satisfy
the amount in controversy by adding some $3000 in claims for loss of consortium and
$75,000 in noneconomic losses for past and future pain, suffering, and mental anguish.
“[Substantial non-economic damage awards are not appropriate to compensate for
short-term, minor ailments. Rather, longer-lasting and more severe injuries are more likely
to give rise to substantial non-economic damage awards.” Wright v. Remington Arms Co.,”
2010 WL 5387571, *3 (D. Col. Dec. 22, 2010) (citing Rosenboro v. Kim, 994 F.2d 13, 18-19 (D.C.
Cir.1993)). In Roseboro, the court stressed that the “the presence of medical evidence
showing that a plaintiff is suffering from a continuing or permanent physical impairment
to be an important indicator that a substantial unliquidated damages award could be
legally justified.” 994 F.2d at 18.
In the present case, Shughart has supplied no medical evidence. Her response
depends solely on her own affidavit’s description of the accident and her injuries, and her
attorney’s demand letter, which includes second-hand hearsay describing his client’s
medical history. The demand letter indicates that Shughart first had a series of
“chiropractic manipulations and inferential therapy,” followed by a six week physical
therapy session. The therapy apparently determined that Shughart “had reached maximum
medical improvement and was released from treatment” on April 21, 2016.
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Citing McPhail v. Deere & Co., 529 F. 35 947, 956-957 (10th Cir. 2008), the plaintiff
argues that her demand letter itself is “conclusive” of the issue. (Dkt. 7, at 5). This misreads
McPhail, which was a removal action. As the party removing the action and asserting
federal jurisdiction, the court stressed it was the defendant who had the burden of proving
the amount in controversy exceeded the jurisdictional amount. Because the original state
court petition was silent as to the amount in controversy, the court held that defendant
could satisfy its burden by showing settlement demands made by the plaintiff in excess of
the jurisdictional amount. See 529 F.3d at 956 (citing Cohn v. Petsmart, Inc., 281 F.3d 837, 840
(9th Cir.2002) (another removal case, holding that use of a settlement demand for
jurisdictional purposes would not offend Fed.R.Evid. 408)). Thus, the defendant could rely
on “documents that demonstrate plaintiff's own estimation of its claim” to support the
removal. 529 F.3d at 956.
But this is not a removal action, and it is the plaintiff who is asserting federal
jurisdiction. The plaintiff’s recitation of her own attorney’s comments are not only not
conclusive of the matter, they are not “competent proof” of the existence of the amount in
controversy.
Shughart otherwise relies on two cases as support for the exercise of federal
jurisdiction where noneconomic injuries make up the great majority of the plaintiff’s
damages claims, Linck v. Tayler, 2012 WL 464367 (N.D. Ind. Feb. 10, 2012) and Tinghitella
v. D and K Financial Corp., 1992 WL 350665 (N.D. III. 1992).
However, a review of these cases indicates that the courts rendered their conclusions
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based on facts or circumstances not present here. In Tinghitella, the plaintiff court stressed
that “[w]e have no reason to believe that the sum claimed by Tinghitella was made in bad
faith, nor have the defendants suggested otherwise.” 1992 WL 350665 at *3. The plaintiff
asserted the existence of a soft tissue injury preventing him from working, and argued that
the jurisdictional amount was satisfied by his claim for lost wages. The plaintiff did not rely
on noneconomic claims of pain and suffering. As to the existence of the underlying
physical injury, the court noted that plaintiff had been treated by both physical therapy in
Illinois and “an orthopedic specialist, in Florida, facts not in dispute by the parties.” Id. at *1
(emphasis added).
In Linck, the plaintiff did rely on noneconomic injuries, and the court acknowledged
the existence of conflicting Seventh Circuit precedent. The court ultimately distinguished
the Seventh Circuit’s holding in McMillian on the basis of the horrific nature of the traffic
accident involved.
Most importantly, the plaintiffs' claims in McMillian for tens-of-thousands of
dollars in emotional damages was simply incredible under the
circumstances. The plaintiffs all suffered their injuries when an escalator
“jerked” and caused them to stumble. Id. at 840–41. No doubt this experience
was somewhat distressing for the plaintiffs, but the “trauma” experienced in
that case is not even in the same league—really not even in the same
sport—as being directly involved in a car accident that kills two people.
2012 WL 464367 at *4.
The present case is wholly unlike the multiple fatality traffic accident at issue in
Linck. The plaintiff Shughart was involved in an extremely low speed traffic accident while
Shughart was stopped in traffic. The collision was not a surprise. Shughart indicates in her
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affidavit that she saw Sens place her car in reverse, and attempted warn her, presumably
by honking her horn. The photograph of Shughart’s vehicle, which her attorney attached
to his demand letter, shows a mild crumple to the rear passenger door of the plaintiff’s car.
Although plaintiff asserts that she had a “terrifying panic attack” at the scene, there
is no indication that this was reported in the police report of Officer Michael Gruber, which
is otherwise cited in plaintiff’s demand letter. Shughart did not seek immediate medical
attention, and indeed waited until after the weekend was over before consulting a
chiropractor. She then had a limited series of treatments with the chiropractor and a
physical therapy clinic. There is no indication that she has seen an orthopedic specialist or
that she has been recommended for surgery. Although plaintiff asserts that she suffered
a panic attack at the scene, and asserts anxiety and depression among her noneconomic
damages claims, there is no suggestion that she has ever consulted any mental health
professional.
The plaintiff’s damages claims accordingly more nearly resemble those in McMillan,
or in the decisions of Tellis v. Sipes, 2012 WL 1969054, *5 (S.D. Ind. May 31, 2012) or Wright
v. Remington Arms, 2010 WL 5387571 (D. Col. Dec. 22, 2010).
In Tellis, the plaintiff was the driver of a bus struck by the defendant’s car. A month
after the accident, he consulted a chiropractor, and ultimately incurred some $9000 in
medical expenses. He also alleged that he would be unable to work in the future.
The court ultimately granted the defendant’s motion to dismiss, finding plaintiff
failed to meet his burden of showing competent proof of the amount in controversy.
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Mr. Tellis's alleged incurred expenses—that is, his past medical bills and his
workers' compensation lien—are found lacking with respect to the
requirements of the diversity statute. More importantly, Mr. Tellis has not
provided any “competent proof” that his future medical expenses, potential
impairment of future earnings, or other damages will make up for this
deficiency.... [P]laintiffs generally “receive the benefit of all doubt” at the
complaint stage with respect to amount in controversy. Schlessinger v. Salimes,
100 F.3d 519, 521 (7th Cir.1996) (citing St. Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938)). Even so, once the
defendant has challenged the plaintiff's good faith estimate of damages, the
plaintiff “cannot just appeal to the judge's druthers; he must show how the
rules of law, applied to the facts of his case, could produce such an award.”
Id. (citing Wellness Cmty.-Nat'l v. Wellness House, 70 F.3d 46, 49–50 (7th
Cir.1995)).
Mr. Tellis has attempted to salvage his federal claim by alleging
permanent impairment of two of his cervical vertebrae (between four and six
percent) and an impairment of his thoracic spine (up to three percent). Pl.'s
Resp. at 5. However, without some corroboration (i.e., documentary or
testimonial opinions) as to what type of treatment he can expect for pain and
suffering, and given his chiropractor's positive assessment of his treatment
progress in August 2010 (failing to recommend surgery and instructing him
to return only “as needed”), we do not find his evidentiary assertions
determinative. His case differs significantly from that of the Rising–Moore [v.
Red Roof Inns, Inc. 435 F.3d 813 (7th Cir. 2006)] plaintiff, who only needed
another $30,000 to achieve the minimum amount in controversy. Regrettably,
Mr. Tellis has only managed to establish to a legal certainty that he has
incurred a maximum of $10,744.65 in damages stemming from the
automobile accident, an amount which is not even fifteen percent of the
jurisdictional minimum.
2012 WL 1969054, at *6.
In Wright v. Remington Arms, the plaintiff alleged that a rifle manufactured by the
defendant misfired. The bullet passed through a tree before striking the plaintiff. The bullet
did not penetrate plaintiff’s vest or shirt, but did break the skin and cause a large bruise.
The plaintiff sought medical attention nine days later, and ultimately incurred some $400

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in medical expenses. The court held that plaintiff had failed to show the amount in
controversy exceeded the jurisdictional requirement by adding claims for mental suffering.
“Even looking at the evidence in the light most favorable to Mr. Wright,” the court held,
“there is a lack of sufficient medical evidence that he has a continuing or permanent injury”
where plaintiff “did not submit any affidavits or exhibits to support his claim of mental
suffering or trauma.” 2010 WL 5387571, at *4 (record citations omitted).
“When federal subject matter jurisdiction is challenged based on the amount in
controversy requirement, the plaintiffs must show that it does not appear to a legal
certainty that they cannot recover the jurisdiction amount.” Woodmen of World Life Ins. Soc.
v. Manganaro, 342 F.3d 1213, 1216 (10th Cir. 2003). Here, it is Shughart who must support
her allegation of jurisdiction with competent proof once it has been factually attacked by
Sens. See Salazar v. Furr's, Inc., 629 F.Supp. 1403, 1407 (D.N.M.1996)(citing McNutt v. General
Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). Here, however, Shughart has supplied
no medical evidence to the court, relying entirely on her own affidavit and her own
demand letter. Such evidence is not competent proof.
The record before the court indicates that the case arises from a low-speed collision
which would be unlikely to produce the sort of non-economic injuries claimed by the
plaintiff. Shughart has claimed some $15,000 in medical expenses, apparently half of which
have been paid, and otherwise asserts the existence of federal jurisdiction based on $75,000
in noneconomic damages for pain and suffering. Given the absence of competent proof to
support the claim for noneconomic damages, dismissal is warranted.
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IT IS ACCORDINGLY ORDERED this day of 28th December, 2016, that the
defendant’s Motion to Dismiss (Dkt. 4) for lack of jurisdiction is hereby granted.

___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE

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