Selby v. Pampered Chef, Ltd. et al

Filing 11

MEMORANDUM OPINION & ORDER: (1) Plt's Motion to Remand to State Court 7 is GRANTED IN PART and DENIED IN PART; (2) this matter is REMANDED to Mercer Circuit Court; and (3) Clerk shall STRIKE THIS MATTER FROM THE ACTIVE DOCKET. Signed by Judge Joseph M. Hood on 3/28/2014.(STC)cc: COR,Mercer Circuit Court

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

SHANA SELBY,
Plaintiff,
v.
THE PAMPERED CHEF, LTD., et
al.
Defendants.

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Civil Case No. 14-cv-75-JMH

MEMORANDUM OPINION & ORDER

******
The

Court

has

carefully

Manufacturing

Company’s

Court’s

[DE

Order

5]

reviewed

(“Makray”)

requiring

Defendant

Response

that

it

show

[DE

Makray

6]

cause

to
why

the
this

matter should not be remanded to the Mercer Circuit Court for
failure to provide “competent proof” of an amount in controversy
greater than $75,000.

This matter is also before the Court upon

Plaintiff Shana Selby’s Motion to Remand to State Court [DE 7],
with respect to which Defendant Makray has filed a Response [DE
9]

and

Plaintiff

has

filed

a

Reply

[10].

The

Court

being

adequately advised, the question of this Court’s jurisdiction is
properly before the Court, and, for the reasons stated below,
this matter will be remanded to the Mercer Circuit Court.
In

its

Responses,

Makray

argues

that

it

has

provided

adequate proof to this Court that the amount in controversy

meets

this

diversity
Amended

Court’s

pursuant
Complaint

jurisdictional

jurisdictional
to

28

avers

minimum

U.S.C.
damages

requirements

of

when

1332

because

§
“in

the

excess

Mercer

of

it

sits

in

Plaintiff’s
the

Circuit

minimum

Court”

but

omits the upper limitation, “but . . . not in excess of $75,000”
averred in the original Complaint.

[DE 1-1 at 3, ¶4, and 15, ¶

4.]
Makray argues that it has demonstrated an adequate amount
in controversy and that this Court may exercise jurisdiction
because, as taught in Hayes v. Equitable Energy Resources Co.,
266 F.3d 560, 572 (6th Cir. 2001), removal does not “place upon
the

defendant

the

daunting

burden

of

proving,

to

a

legal

certainty, that the plaintiff’s damages are not less than the
amount-in-controversy

requirement

[because]

.

.

.

[s]uch

a

burden might well require the defendant to research, state and
prove

the

plaintiff’s

claim

for

damages.”

There

remains,

however, a burden for the defendant removing a matter when it
asks this Court to exercise jurisdiction in a diversity matter.
As the Court has already explained in its Order to show cause,
“‘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
2

958, 959 (E.D. Ky. 2009) (quoting Gafford v. Gen. Elec. Co., 997
F.2d 150, 155 (6th Cir. 1993)) (emphasis in original).

This

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

Id. at 960.

Makray offers this Court no more

than speculation.

Plaintiff might have omitted the phrase “but

. . . not in excess of $75,000” from its Amended Complaint for
any

number

of

reasons,

not

simply

because

recover damages in excess of $75,000.

it

now

seeks

to

For example, counsel

might have omitted the phrase to make a shorter document, out of
forgetfulness, or simply because counsel has no obligation to
include it in the Amended Complaint.

In light of this universe

of possibilities, the omission of the phrase from the Amended
Complaint does not make it more likely than not that there is
more than $75,000 in controversy in this matter.1

1

Accordingly,

Makray also argues that the resolution to all of this is
clearly in Plaintiff’s corner because “a plaintiff could force a
remand by stipulating its overall damages do not meet the
court’s jurisdictional limits, [but] Selby’s Motion to Remand is
silent on this issue.”
[DE 9].
As Makray has not met its
burden, the Court does not require anything of Plaintiff in
evaluating the propriety of removal in this instance. Plaintiff
has, however, provided a copy of a letter memorializing a prelitigation demand made to Makray’s co-defendant, The Pampered
Chef, Ltd., in the amount of $65,000.
"A settlement letter is
relevant evidence of the amount in controversy if it appears to
reflect a reasonable estimate of the plaintiff's claim." Labuy
v. Peck, Civil Action No. 5:10-cv-158-JMH, 2010 WL 4313336, at
*2 (Oct. 25, 2010) (quoting Cohn v. Petsmart, Inc., 281 F.3d
837, 840 (9th Cir. 2002) (other citations omitted). In light of
this information, if anything, the Court is even more persuaded
3

since the Court could not exercise original jurisdiction over
this

matter

pursuant

to

28

U.S.C.

removed under 28 U.S.C. § 1441.

§1332,

it

was

improperly

The case shall be remanded to

Mercer Circuit Court.
Finally, the Court considers whether Plaintiff is entitled
to relief under 28 U.S.C. § 1447(c).

“A threshold determination

of bad faith, improper purpose or vexatious or wanton conduct”
is not necessary for the Court to use its discretion to award
attorney’s fees as a consequence of an improper removal. Morris
v.

Bridgestone/Firestone,

1993).

Inc.,

985

F.2d

238,

240

(6th

Cir.

Instead, the Court must find that the Defendant “lacked

an objectively reasonable basis for seeking removal” in order to
justify an award of attorney’s fees under § 1447(c). Martin v.
Franklin
omitted).

Capital

Corp.,

546

U.S.

132,

141

(2005)

(citations

In this instance, the Court observes that Defendant

Makray’s argument in favor of removal was wrong.

The Court is

not

this

prepared,

however,

in

this

instance

and

on

day

to

determine that defendant “lacked an objectively reasonable basis
for seeking removal” simply because Makray read too much into
the omission of the upper limit on the amount of controversy
from the Amended Complaint.

The motion for an award of fees

shall be denied.

that Makray failed to
matter to this Court.

do

its

homework
4

before

removing

this

Accordingly and upon the Court’s own motion, IT IS ORDERED:
(1)

That Plaintiff’s Motion to Remand to State Court [DE
7] is GRANTED IN PART and DENIED IN PART as set forth
above;

(2)

That this matter is REMANDED to Mercer Circuit Court;
and

(3)

That

the

Clerk

shall

STRIKE

ACTIVE DOCKET.
This the 28th day of March, 2014.

5

THIS

MATTER

FROM

THE