Shifflet et al v. Tennessee Gas Pipeline, LLC et al

Filing 14

MEMORANDUM OPINION & ORDER: It is ordered that Plas' 8 MOTION to Remand to State Court is DENIED. Signed by Judge Joseph M. Hood on 9/28/2018.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
LARRY SHIFFLET and
CATRINA SHIFFLET,

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Plaintiffs,
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-00472-JMH
MEMORANDUM OPINION
AND ORDER

***
This matter is before the Court on Plaintiffs’ Motion to
Remand to State Court.

(DE 8).

Defendants have responded (DE 9)

and Plaintiffs replied (DE 10), thus, Plaintiffs’ motion is ripe
for decision.
and

being

Having reviewed the motion, response, and reply,

otherwise

adequately

advised,

the

Court

will

deny

Plaintiffs’ motion for the reasons set forth below.
Background
This case arises from an incident alleged to have occurred on
August 1, 2016.
station

owned

Plaintiffs allege that a natural gas compression
and

operated

by

Tennessee

Gas

Pipeline,

“discharged natural gas condensate and compressor oil.”

LLC

(DE 1,

Compl. ¶10).

Plaintiffs allege the condensate contained “toxic

compounds including, but not limited to, Benzene, Heptane, and
Decane.” (Id. at ¶12). This discharge allegedly “created a visible
oily film which settled on Plaintiffs’ 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 ¶¶14, 16.)
Plaintiffs

also

claim

personal

injuries

resulted

exposure to the condensate and compressor oil.

from

their

(Id. at ¶50).

Plaintiffs’ 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;

Plaintiffs further allege that

A.S.T. Environmental, Inc.; AMEC Foster Wheeler Environment &
Infrastructure, Inc.; and Clean Harbors Environmental Services,
Inc. (collectively referred to by plaintiffs as the “Remediation
Defendants”), engaged in “remediation efforts” at their property
and “were negligent in their efforts to rid Plaintiffs’ home,
personal property and real property of the remnants of the natural
gas condensate and compressor oil discharge.” (Compl., at ¶¶7-10,
45.) Plaintiffs assert counts for negligence and punitive damages
against the Remediation Defendants.
Plaintiffs filed their 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

Plaintiffs in an effort to determine the amount in controversy.
Although Plaintiffs did not initially admit or deny that the amount
in

controversy

exceeded

$75,000,

after

removal

Plaintiffs

supplemented their answers to discovery and admitted that they
were not seeking in excess of $75,000. 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 plaintiffs' 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. Upon information and belief based on TGP’s
thorough investigation, including allegations of the
Plaintiffs’ Complaint and Plaintiffs’ discovery
responses, Plaintiffs seek compensatory damages in
excess of $117,000. See, e.g., Durant v. Servicemaster
Co., 109 Fed.Appx. 27, (6th Cir. 2004) (noting that
claims of multiple plaintiffs may be aggregated where
they “unite to enforce a single title or right in which
they have a common and undivided interest,” and that
the “paradigmatic cases in which plaintiffs have a
common and undivided interest involve a single
indivisible res, such as an estate, a piece of property
(the classic example), or an insurance policy.”)
(internal quotations omitted). Plaintiffs did not
indicate amounts for the remaining claims against TGP
outlined above in paragraph 11.
15. Plaintiffs also seek punitive damages. Even
applying a conservative ratio of 1:1 punitive damages
to Plaintiffs’ claimed compensatory damages, the
amount in controversy for their claims is more than
three times $75,0001, the jurisdictional requirement
of this Court. See, e.g., Heyman v. Lincoln National
Life Insurance Company, Civil Action No. 3:16-cv-37DJHDW, 2017 WL 3274452, *4 (W.D. Ky. April 27, 2017)
(noting that a 1:1 punitive-damages ratio was
“minimal”); Proctor v. Swifty Oil Co., Inc., No. 3:125

CV-00490-TBR, 2012 WL 4593409, *2 (W.D. Ky. Oct. 1,
2012) (acknowledging that “the Supreme Court has
embraced a punitive-to-compensatory damages ratio near
4-to-1,” and holding that even a “ratio of 2-to-1” was
a “restrictive estimate[] of compensatory and punitive
damages.”).
16. Considering the compensatory damages described in
Plaintiffs’ discovery responses alone, coupled with
the 1:1 punitive damages ratio, the amount in
controversy with respect to Plaintiffs’ claims exceeds
the jurisdictional minimum threshold of this Court.
(DE 1, Defendant’s Notice of Removal at ¶¶ 14-16).
Plaintiffs argue that they eventually supplemented their
discovery answers to state that they are 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, Plaintiffs simply

answered that they are not seeking in excess of $75,000; they have
not stipulated to that.
The Court "review(s) the damages sought by Plaintiffs at the
time of removal."

Hayes v. Equitable Energy Resources Co., 266

F.3d 560, 573 (6th Cir. 2001).

Plaintiffs 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, Plaintiffs had

provided discovery responses that included more than $100,000 in
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property damages alone, and refused to provide any value or
limitation on recovery for any other personal or real property
damage,

personal

medical

bills,

injury

pain

and

including

past,

suffering,

damages, and consequential damages.

present,

mental

and

anguish,

future

punitive

Plaintiffs now claim the over

$100,000 in damages they attached to their discovery responses
were not the actual value they are seeking; however, again, the
determination of jurisdiction is made at the time of removal. At
that time, Defendants had information that reasonably supported
over $93,000 in property damages on one estimate, and thousands
more dollars’ worth of additional claimed property on another
estimate.
While it appears property damages alone could reasonably
exceed the jurisdictional limit of this court, that does not
include any potential award for medical expenses, or an award of
pain and suffering.
further

supports

Even small awards for these claimed damages
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 Plaintiffs’
Motion to Remand be, and the same hereby is, DENIED.
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This the 28th day of September, 2018.

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