Lemaster v. Bob Evans Farms LLC
Filing
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MEMORANDUM OPINION & ORDER, 1) granting 5 MOTION to Remand to State Court by Elizabeth Lemaster 2) pla motion for costs be OVERRULED 3) Matter be REMANDED to Boyd Circuit Court. Signed by Judge Henry R. Wilhoit, Jr on 8/19/15.(SMT)cc: COR, Certified copy to Boyd Circuit Court
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
at ASHLAND
CIVIL ACTION NO. 15-50-HRW
ELIZABETH LEMASTER,
v.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
BOB EVANS FARMS, LLC,
DEFENDANT.
This matter is before the Court upon Plaintiffs Motion to Remand and Motion for Costs
[Docket No.5]. The motion has been fully briefed by the parties [Docket Nos. 6, 7, 8 and 9].
For the reasons set firth herein, the Court finds that remand is appropriate but, under the
circumstances presented, an award of costs is not warranted.
I.
This case arises from a fall that occurred the Bob Evans restaurant in Ashland, Kentucky
on May 1, 2015. Plaintiff alleges that, on that day, she was at the restaurant and slipped and fell
[Complaint, Docket No. 1-3, ~ 7]. She subsequently filed this civil action in the Boyd Circuit
Cotni against Bob Evans, alleging negligence and seeking damages for medical expenses, pain
and suffering. !d.
at~
8. Following the Kentucky Rule of Civil Procedure 8.01 (2), Plaintiff did
not specify the amount of damages in her Complaint, but merely averred that the amount in
controversy exceeded the minimum jurisdictional limit of the Boyd Circuit Comi. After filing its
Answer in the Boyd Circuit Couyrt, Defendant filed a Notice of Removal in this Court, alleging
federal jurisdiction under 28 U.S.C.§ 1332, "diversity of citizenship'." Defendant alleged that
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"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-- (1) citizens of different sates." 28 U.S.C. § 1332 (a).
Plaintiff is a resident of the Commonwealth of Kentucky, whereas Defendant is a corporate
citizen of Ohio. With regard to damages, Defendant stated:
[C]ounsel for Defendant has sought a stipulation from Plaintiff that
the amount in controversy does not exceed the jurisdictional
amount and provided until noon of this day to respond ....
Given that Plaintiff has failed to respond regarding the
amount in controversy, Defendant believes that it meets or exceeds
the jurisdictional amount. Accordingly, the jurisdictional
requirements are met.
[Notice of Removal, Docket No. I,
~1].
Plaintiff responded to the removal by moving the Court to remand the case to the Boyd
Circuit Court. In support of her motion, she claims that Defendant has not met its burden of
establishing that the amount in controversy exceeds the jurisdictional minium of this Court. In
addition, Plaintiff attorney fees in the amount of$1325.00.
II.
A.
Defendant has not met its burden of establishing that the amount in
controversy exceeds $75,000, exclusive of fees and costs.
The statute authorizing removal, 28 U.S.C. § 1441, provides that an action is removable
only if it initially could have been brought in federal court. A federal court has original
"diversity" jurisdiction where the suit is between citizens of different states and the amount in
controversy exceeds $75,000.00, exclusive of costs and interest. 28 U.S.C. § 1332(a). It is wellestablished that the federal courts are courts of limited jurisdiction. Thus, any doubts regarding
federal jurisdiction should be construed in favor of remanding the case to state court. Shamrock
Oil & Gas Corp. v. Sheets, 313 U.S. 100, I 09 (1941 ); Walsh v. American Airlines, h1c., 264
F.Supp. 514, 515 (E.D.Ky.l967). As such, a defendant desiring to remove a case from state to
federal court has the burden of establishing the diversity jurisdiction requirements of an original
federal court action. Chapman v. Houston Welfare Rights Org., 441 U.S. 600,612 n. 28 (1979).
Where a complaint contains minimal information regarding the damages the sought, the
party having the burden of establishing jurisdiction present some proof that the claim is likely to
result in an award in an amount necessary to establish that the total claim exceeds $75,000.00.
The amount in controversy is the point of contention in this case. The information relied
upon by Defendant to establish the amount in controversy was not obtained through discovery,
but, rather, an email sent from Defendant's counsel to Plaintiff's counsel on July 17,2015, which
provided a proposed Stipulation. In the email. Counsel for Defendant stated, "if we do not hear
from you before noon on Friday, July 17, we will assume that your client is seeking more than
$75,000.00."
Plaintiff's counsel did not respond to the email or execute the proposed
Stipulation. Nonetheless, Defendant attached both the email and the unsigned Stipulation to its
Notice of Removal, stating, "[g]iven that Plaintiff has failed to respond regarding the
amount in controversy, Defendant believes that it meets or exceeds the jurisdictional
amount." Docket No.!,~ I.
Plaintiff vehemently opposes removal and argues that the evidence presented by
Defendant as to the amount in controversy falls far short of what is required. The Court agrees.
The refusal to stipulate damages is not sufficient to confer diversity jurisdiction in the
Eastern District of Kentucky. To allow it would be "flip[ping] the jurisdictional burden on its
head." lv!cKinney v. JGC, LLC, 2013 WL 1898632 (E.D. Ky. 2013). As the removing party, it is
the Defendant who bears the burden of producing evidence of the amount in controversy.
However, as Defendant would have it, establishing the amount in controversy on the basis of an
unsigned stipulation, the burden falls upon Plaintiff to prove that the amount in controversy is
Jess than $75,000.00. Defendant is mistaken. As Judge Thapar explained in McKinney:
To hold that Defendants can remove these cases based solely on
the Plaintiffs' refusal to stipulate to damages below $75,000.00
would force a Hobson's choice on Plaintiffs. Ifthey refuse to
stipulate to the limitation, they abandon the forum they feel best
serves their interest. And if they sign the stipulation, they eliminate
the possibility that discove1y might reveal their claims are worth
more than they initially thought, or that the jmy will return an
unexpectedly large award. The per se approach pushed here would
allow Defendants to use removal as a tool to ensure that they either
receive the form that they want or eliminate the possibility of an
award greater than $75,000.00. Federal diversity jurisdiction was
not meant for such strategic ends.
!d.
This case, in its current posture, is devoid of a stipulation as to damages. Indeed, Plaintiff
has stated that she "cannot say that her damages will exceed $75,000.00 at this time." [Docket
No. 7, pg. 4]. Nor is there other proof that establishes the likelihood of damages in excess of
$75,000. Defendant's assumption will not suffice.
As diversity has not been established, this Court cannot properly exercise jurisdiction
over this matter. As such, the case will be remanded to Boyd Circuit Court.
B.
Under the circumstances presented, the Court is not inclined to award costs.
28 U.S. C.§ 1447( c), provides that" [a]n order remanding the case may require payment
of just costs and any actual expenses, including attorney fees, incurred as a result of the
removal." District Courts have discretion to award attorney fees under this statut01y section.
Having found that Defendant's position on the merits is not well-taken, the Court must determine
whether attorney fees should be awarded. Upon review of the record, the Comt finds that while
the removal was improvident, the facts presented do not warrant an assessment of costs of fees
against Defendant.
III.
IT IS HEREBY ORDERED:
(1)
Plaintiff's Motion for Remand [Docket No.5] be SUSTAINED;
(2)
Plaintiff's Motion for Costs [Docket No. 5] be OVERRULED; and
(3)
Signed By:
Henry R. Wilhoit. Jr.
This 19'h day of August, 2015.
United States District Judge
Hemy R. Wilhoit, Jr., Senior Judge
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