Bishop v. Tennessee Gas et al
Filing
13
MEMORANDUM OPINION & ORDER: IT IS ORDERED that Plaintiff's 8 MOTION to Remand to State Court by Hezzie Bishop is DENIED. Signed by Judge Joseph M. Hood on 9/27/2018.(GLD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
HEZZIE BISHOP,
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Plaintiff,
v.
TENNESSEE GAS PIPELINE, LLC,
KINDER MORGAN OPERATING, L.P.
“A”, KINDER MORGAN G.P., INC.,
A.S.T. ENVIRONMENTAL, INC.,
AMEC FOSTER WHEELER
ENVIRONMENT & INFRASTRUCTURE,
INC., and CLEAN HARBORS
ENVIRONMENTAL SERVICES, INC.
Defendants.
Civil Case No.
5:17-cv-00424-JMH
MEMORANDUM OPINION
AND ORDER
***
This matter is before the Court on Plaintiff’s Motion to
Remand to State Court.
(DE 8).
Defendants have responded (DE 9)
and Plaintiff replied (DE 10), thus, Plaintiff’s motion is ripe
for decision.
and
being
Having reviewed the motion, response, and reply,
otherwise
adequately
advised,
the
Court
will
deny
Plaintiff’s motion for the reasons set forth below.
Background
This case arises from an incident alleged to have occurred on
August 1, 2016.
station
owned
Plaintiff alleges that a natural gas compression
and
operated
by
Tennessee
Gas
Pipeline,
“discharged natural gas condensate and compressor oil.”
LLC
(DE 1,
Compl. ¶1).
Plaintiff allege the condensate contained “toxic
compounds including, but not limited to, Benzene, Heptane, and
Decane.” (Id. at ¶3).
This discharge allegedly “created a visible
oily film which settled on Plaintiff’s persons and Plaintiff’s
physical
and
personal
property”
and
caused
“temporary
and
permanent damage to Plaintiff’s physical and personal property as
well as emotional distress and inconvenience.” (Id. at ¶¶5, 7.)
Plaintiff
also
claim
personal
injuries
resulted
exposure to the condensate and compressor oil.
from
their
(Id. at ¶18).
Plaintiff’s complaints against the Tennessee Pipeline and Kinder
Morgan defendants include negligence, negligence per se; product
liability;
temporary
nuisance;
trespass;
battery; and punitive damages.
res
ipsa
loquitor;
Plaintiff further alleges that
A.S.T. Environmental, Inc.; AMEC Foster Wheeler Environment &
Infrastructure, Inc.; and Clean Harbors Environmental Services,
Inc. (collectively referred to by Plaintiff as the “Remediation
Defendants”), engaged in “remediation efforts” at their property
and “were negligent in their efforts to rid Plaintiff’s home,
personal property and real property of the remnants of the natural
gas condensate and compressor oil discharge.” (Compl., at ¶¶68 and
35) Plaintiff assert counts for negligence and punitive damages
against the Remediation Defendants.
Plaintiff filed her lawsuit in Powell Circuit Court on June
20, 2017.
The parties exchanged discovery over the following
2
months.
Defendants
Interrogatories,
and
served
Requests
for
Request
for
Production
of
Admissions,
Documents
on
Plaintiff in an effort to determine the amount in controversy.
Although Plaintiff did not initially admit or deny that the amount
in controversy exceeded $75,000 (DE 1, pp. 58-59), after removal
Plaintiff supplemented their answers to discovery and admitted
that they were not seeking in excess of $75,000 (DE 8, pp. 9-11).
The parties appear to agree that diversity of citizenship is not
at issue in the motion to remand.
Standard
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, exclusive of costs
and interest.
28 U.S.C. § 1332(a).
Therefore, 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
controversy requirement.
action,
including
the
amount
in
Chapman v. Houston Welfare Rights Org.,
441 U.S. 600, 612 n. 28 (1979). That burden is not an insubstantial
one.
McKinney v. ICG, LLC, No. 13-cv-12, 2013 WL 1898632, at *1
(E.D. Ky. May 7, 2013).
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Where, as here, the complaint seeks an unspecified amount of
damages “that is not self-evidently greater or less than the
federal
amount-in-controversy
defendants
evidence.
must
carry
its
requirement,”
burden
by
a
the
removing
preponderance
of
the
Id. at *2 (E.D. Ky. May 7, 2013)(citing Gafford v. Gen.
Elec. Co., 997 F.2d 150, 158 (6th Cir.1993), abrogated on other
grounds
by
Friend,
530
U.S.
77).
The
preponderance-of-the-
evidence test requires defendants to support their claims to
jurisdiction
by
“jurisdictional
producing
facts.”
“competent
Id.
(citing
160)(internal citations omitted).
proof”
of
the
Gafford,
997
necessary
F.2d
at
“Competent proof” can include
affidavits, documents, or interrogatories.
Ramsey v. Kearns, No.
12-cv-06, 2012 WL 602812, at *1 (E.D. Ky. Feb. 23, 2012)(citing
Gentek Bldg. Prods., Inc. v. Sherwin–Williams Co., 491 F.3d 320,
330 (6th Cir. 2007)(internal citation omitted)).
If the defendant does not produce evidence showing it is more
likely than not that the Plaintiff’s claims exceed $75,000, the
case must be remanded to state court.
Id.
Federal courts are
courts of limited jurisdiction, therefore, 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, 109 (1941); Walsh v. American Airlines, Inc., 264 F. Supp.
514, 515 (E.D. Ky. 1967).
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Discussion
Here, because Defendant removed this case from state court,
it has the burden of proving that the requirements of diversity
jurisdiction, including the amount in controversy, are satisfied
by a preponderance of the evidence.
*2.
McKinney, 2013 WL 1898632, at
“(I)n reviewing the denial of a motion to remand, a court
looks to whether the action was properly removed in the first
place.”
Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871–72
(6th Cir. 2000).
Regarding the amount in controversy, Defendant
states as follows in its Notice of Removal:
14.
In
Plaintiff’s
responses
to
TGP’s
Interrogatories and Requests for Production of
Documents served September 29, 2017, Plaintiff
indicates
at
least
$119,5001
for
the
destruction, damage and loss of value of
personal and real property. . . .
15. Upon information and belief based on TGP’s
thorough investigation, including allegations
of the Plaintiff’s Complaint and Plaintiff’s
discovery responses indicating the alleged
destruction, damage, and loss of value of
personal and real property exceeds $119,500
exclusive of all other claims, the amount in
controversy
exceeds
$75,000,
the
jurisdictional requirement of this Court.
16. Out of an abundance of caution considering
the 30-day deadline pursuant to 28 U.S.C. §
1446(b), and given Plaintiff’s unwillingness
to
stipulate
regarding
the
amount
in
controversy, TGP hereby provides notice that
it is removing this matter to the Eastern
District of Kentucky.
(DE 1, Defendant’s Notice of Removal at ¶¶ 14-16).
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Plaintiff
argues
that
she
eventually
supplemented
her
discovery answers to state that she is not seeking in excess of
$75,000.
Amount-in-controversy, for purposes of removal under 28
U.S.C. § 1441, is assessed at the time of removal, not answers to
discovery a plaintiff may later make.
Notably, Plaintiff simply
answered that she is not seeking in excess of $75,000; she has not
stipulated to that.
The Court "review(s) the damages sought by Plaintiff at the
time of removal."
Hayes v. Equitable Energy Resources Co., 266
F.3d 560, 573 (6th Cir. 2001).
Plaintiff claimed that the amount
in controversy would not exceed $75,000 only after this case had
already been removed.
Events occurring after removal, including
post-removal supplemental answers to discovery, "which reduce the
amount
recoverable
jurisdiction."
below
the
statutory
limit
do
not
oust
St. Paul Mercury Indem. Co. v. Red Cab Co., 303
U.S. 283, 290 (1938).
At the time of removal, Plaintiff had
provided discovery responses that included more than $100,000 in
property
damages
limitation
on
alone
recovery
and
for
refused
to
personal
provide
injury
any
value
including
or
past,
present, and future medical bills, pain and suffering, mental
anguish, punitive damages, and consequential damages. (DE 9, Defs.
Resp., Ex. C).
Plaintiff now claims the $100,000 in damages she
attached to her discovery responses were not the actual value she
is seeking; however, again, the determination of jurisdiction is
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made
at
the
information
time
that
of
removal.
reasonably
At
that
supported
time,
more
Defendants
than
$100,000
had
in
property damages alone. (Id.)
While it appears property damages could reasonably exceed the
jurisdictional limit of this court, that does not include any
potential award for medical expenses, mental anguish, increased
risk of future harm, punitive damages, or an award of pain and
suffering.
Even small awards for these claimed damages further
supports Defendant’s position that the amount in controversy in
this matter was in excess of $75,000 at the time of removal.
Thus,
the Court finds that at the time of removal, a realistic assessment
of the record establishes the jurisdictional amount of $75,000.
Accordingly, for the reasons stated herein and the Court being
otherwise sufficiently advised, IT IS ORDERED that Plaintiff’s
Motion to Remand be, and the same hereby is, DENIED.
This the 27th day of September, 2018.
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