Kelley v. Proctor & Gamble Dist., LLC

Filing 5

MEMORANDUM OPINION & ORDER: IT IS ORDERED that Dft shall SHOW CAUSE on or before 7/8/2011, why this matter should not be remanded to Madison Circuit Court. Signed by Judge Joseph M. Hood on 6/23/2011.(GLD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DONNA S. KELLEY,

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Plaintiff,
v.
PROCTOR & GAMBLE
DISTRIBUTING, LLC
Defendant.
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Civil Action No. 5:11-194-JMH

MEMORANDUM OPINION AND ORDER

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The Court has reviewed the Notice of Removal filed in this
matter, as well as the Complaint, which was originally filed in
Madison Circuit Court [Record No. 1].
In that Complaint, Plaintiff claims that Defendant Proctor &
Gamble Distributing, LLC is liable to her under theories of
negligence,

strict

products

liability,

warranties.

[Compl., Counts I-IV.]

and

breach

of

implied

Plaintiff seeks compensatory

damages including pain and suffering, medical expenses and loss of
earning capacity, as well as punitive damages. [Compl. ¶¶ 12, 18,
26, 28.] Plaintiff does not specify an amount of damages except to
state that she seeks “compensatory damages in an amount in excess
of the jurisdictional limits of [Madison Circuit] Court.”1 [Id. at
1

Kentucky
circuit
courts
are
courts
of
general
jurisdiction, having “original jurisdiction of all justiciable
causes not exclusively vested in some other court.” KRS § 23A.010.
Kentucky district courts have exclusive jurisdiction over civil
-1-

p. 7.]
“In cases like the one at hand, ‘where the plaintiff seeks to
recover some unspecified amount that is not self-evidently greater
or less than the federal amount-in-controversy requirement,’ the
defendant must show that it is more likely than not that the
plaintiff's claims exceed $75,000."

King v. Household Finance

Corp. II, 593 F.Supp.2d 958, 959 (E.D. Ky. 2009) (emphasis in
original)(quoting Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th
Cir. 1993)(abrogated on other grounds)).

Defendant must come

forward with competent proof showing that the amount-in-controversy
requirement is satisfied and speculation is not sufficient to meet
this burden.

Id. (holding that defendant offered “mere averments”

and not “competent proof” where notice of removal stated only that
“in light of the plaintiffs' claims for compensatory damages,
punitive damages, and attorney fees, ‘it is clear that the amount
in

controversy

threshold

is

met’”).

See

also

Hackney

v.

Thibodeaux, Civil Action No. 10-35-JBC, 2010 WL 1872875, *2
(E.D.Ky. May 10, 2010) (holding that there was no competent
evidence of requisite amount in controversy where defendant relied
on plaintiff’s pleading which sought to recover past and future
medical expenses, lost wages, future impairment of the power to

cases in which the amount in controversy does not exceed four
thousand dollars ($4,000), exclusive of interest and costs, meaning
that the amount in controversy must exceed $4,000.00 in order for
jurisdiction of a civil matter to lie in the circuit court of a
given county. See KRS §§ 23A.010 and 24A.120.
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earn money, and past and future pain and suffering and mental
anguish for injuries which are “serious and permanent in nature.”).
In its Notice of Removal, Defendant appears to rely solely on
the averments of Plaintiff’s Complaint in an attempt to demonstrate
the

requisite

amount-in-controversy,

by

first

reciting

the

Plaintiff’s alleged bases for damages, and then stating “The amount
in controversy, therefore, exceeds $75,000.00.” [Record No. 1 at ¶
10.]

This is not enough, and, unless Defendant can offer some

competent proof of an amount in controversy which exceeds $75,000,
the Court is of the opinion that it lacks jurisdiction over this
matter and that the matter should be remanded to Madison Circuit
Court.
Accordingly, upon the Court’s own motion, IT IS ORDERED that
Defendant shall SHOW CAUSE on or before July 8, 2011, why this
matter should not be remanded to Madison Circuit Court.
This the 23rd day of June, 2011.

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