Jenkins v. Douglas et al

Filing 14

MEMORANDUM OPINION & ORDER: 1. Plaintiff's Motion to Remand [R. 6 ] is GRANTED; 2. This action is REMANDED in its entirety to the Whitley Circuit Court from which it was removed; and 3. This matter is STRICKEN from the Court's active docket. Signed by Judge Gregory F. VanTatenhove on 06/30/2015.(KJA)cc: COR, copy to Whitley Circuit Court (certified), London Diary

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
RANDAL JENKINS,
Plaintiff,
V.
MICHAEL G. DOUGLAS and AUTO
OWNERS INSURANCE,
Defendants.

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Civil No. 15-76-GFVT

MEMORANDUM OPINION
&
ORDER

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Plaintiff Randal Jenkins has moved to remand this personal injury action. [R. 6]. For the
reasons set forth below, and pursuant to 28 U.S.C. § 1447(c), the Court will GRANT Jenkins’
motion.
I
This action, initially filed in Whitley Circuit Court, arises from an automobile accident
that occurred on May 5, 2013. Plaintiff Jenkins’ state court complaint includes a negligence
claim against Defendant Michael G. Douglas, the driver of the other vehicle. It also ostensibly
includes a claim for UIM benefits against his insurer, Auto Owners Insurance.1 Jenkins claims
that as a result of the accident, he sustained past and future medical expenses; “[] past, present
and future physical, emotional, and mental pain and suffering; [] inconvenience; and [sic] []
greater susceptibility to future injury; [] loss of income; [] [and] impairment of his ability to earn

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The complaint includes no reference to the Kentucky Unfair Claims Settlement Practices Act and does not allege
any bad faith on the part of Auto Owners, so the claim against Auto Owners appears to be on the contract alone.

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future income.” [R. 1-1 at ¶ 5]. As to the amount in controversy, Jenkins’ complaint alleges that
“the damages of the Plaintiff exceed the available $50,000.00 underinsured motorists limits
under [the Auto Owners] UIM policy.” [R. 1-1 at ¶ 8]. Douglas filed a Notice of Removal to
this Court, invoking this Court’s original diversity jurisdiction. [R. 1]. In his Notice, Douglas
claims that complete diversity is satisfied and that removal is appropriate because “the Plaintiffs
[sic] have placed in controversy an amount in excess of $75,000.00, exclusive of interests and
costs.” [R. 1 at ¶ 7]. Shortly afterward, Jenkins filed the instant Motion to Remand, [R. 6], in
which he references a discovery response filed in Whitley Circuit Court.
II
Generally, “the sum demanded in good faith in the initial pleading shall be deemed to be
the amount in controversy.” 28 U.S.C. § 1446(c)(2); see Dart Cherokee Basin Operating Co.,
LLC v. Owens, 135 S. Ct. 547, 553 (2014) (“[A defendant’s notice of removal] need include only
a plausible allegation that the amount in controversy exceeds the jurisdictional threshold”).
However, if removal is contested and – as here – a state court rule2 expressly limits the extent to
which plaintiffs can articulate the specific dollar amount that they seek to recover, then the court
must determine whether the amount-in-controversy requirement is satisfied by a preponderance
of the evidence. 28 U.S.C. § 1446(c)(2)(A)-(B); Dart, 135 S. Ct. at 553. The defendant bears
the burden of showing that removal was proper. Hayes v. Equitable Energy Res. Co., 266 F.3d
560, 572 (6th Cir. 2001) (citing Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir.1993)). In
making this assessment, a court considers whether federal jurisdiction existed at the time of
removal. Everett v. Verizon Wireless, Inc., 460 F.3d 818, 822 (6th Cir. 2006). Finally, because

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See Ky. R. Civ. P. 8.01(2).

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federal courts are courts of limited jurisdiction, 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); Cole v. Great Atlantic & Pac. Tea Co., 728 F. Supp. 1305 (E.D. Ky.
1990).
In accordance with Kentucky pleading standards, Jenkins’ complaint does not specify an
amount of damages, but simply states that the damages he seeks are in excess of his $50,000
UIM policy limit. [R. 1-1 at ¶ 8]. In his one-paragraph motion to remand, Jenkins contends that
the amount of damages he seeks does not exceed the jurisdictional amount of $75,000. [R. 6].
He confirms as much in a signed, notarized response to a Request for Admission propounded by
Douglas:
REQUEST NO. 1: That the Plaintiff will be claiming as monetary
damages and seeking in judgment against Defendant Michael G. Douglas for a
sum of at least $75,000, exclusive of costs and interest.
RESPONSE: No.
[R. 7-1]. Jenkins referenced this admission in his motion, [R. 6], and Douglas provided a
copy to the Court as an exhibit in his Response, [R. 7-1].
Lower courts within our circuit have reached differing conclusions about whether postremoval stipulations to an amount in controversy below $75,000 defeat federal jurisdiction. In
Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 872 (6th Cir. 2000), the Sixth Circuit held that “a
post-removal stipulation reducing the amount in controversy to below the jurisdictional limit
does not require remand to state court.” Id. at 872 (emphasis added). The Supreme Court
subsequently held in Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 232 (2007)
that “a case can be properly removed and yet suffer from a failing in subject-matter jurisdiction
that requires remand.” Our sister courts have disagreed about the effect of Powerex on Rogers.
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Compare, e.g., Roberts v. A & S Bldg. Sys., L.P., No. 3:07-CV-413, 2008 WL 220627, *2 (E.D.
Tenn. Jan. 25, 2008) (holding that Powerex abrogated Rogers and mandates that post-removal
stipulations below the jurisdictional amount require remand) with, e.g., Labuy v. Peck, 790 F.
Supp. 2d 601, 602 n.1 (E.D. Ky. 2011) (holding that Powerex did not abrogate Rogers in regard
to evaluating the amount in controversy requirement and stating that “a post-removal stipulation
lowering the amount-in-controversy will not divest this Court of jurisdiction requiring remand
under 28 U.S.C. § 1447(c).”).
The facts of this case do not require the Court to wade into that dispute, however.
Federal courts sitting in Kentucky have long held that “[w]hen a post-removal stipulation is the
first specific statement of the alleged damages then it is considered a clarification, rather than a
reduction, and the case may be remanded.” Tankersley v. Martinrea Heavy Stampings, Inc., 33
F. Supp. 3d 775, 780 (E.D. Ky. 2014) (citing Cole, 728 F. Supp. 1305); see also, e.g., Manning v.
State Farm Fire & Cas. Co., No. CIV.A. 10-352-KSF, 2011 WL 146391 (E.D. Ky. Jan. 18,
2011); Fenger v. Idexx Labs., Inc., 194 F. Supp. 2d 601, 605 (E.D. Ky. 2002); Egan v. Premier
Scales & Sys., 237 F. Supp. 2d 774 (W.D. Ky. 2002). When a stipulation simply clarifies that
the amount in controversy is and has been below the jurisdictional threshold from the outset, the
case has not been “properly removed” in the first place, and the issue in Powerex and Rogers is
not implicated. E.g., Egan, 237 F. Supp. 2d at 778 (“This Court holds, consistent with the
position adopted by the Sixth Circuit [in Rogers] prohibiting reductions or changes from claims
in their initial complaint, that where a plaintiff provides specific information about the amount in
controversy for the first time, it should be deemed a clarification rather than a change.”); see also
Tankersley, 33 F. Supp. 3d at 779 (collecting cases and noting that this rule, set forth in Cole v.

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Great Atlantic & Pacific Tea Co., 728 F. Supp. 1305 (E.D. Ky. 1990), survives Rogers, which
“neither overruled nor distinguished Cole”).
In Cole, the plaintiff’s state court complaint alleged only that the damages arising from
her tort claims would “exceed the requisite state court jurisdictional amount of $4,000.” Cole,
728 F. Supp. at 1306-07. After the defendant removed the action on the basis of diversity, the
plaintiff sought to remand the case by stipulating that she would not seek damages above the
federal jurisdictional minimum. Reasoning that the stipulation simply clarified the amount of the
previously-unspecified damages allegation, this Court determined that the complaint “[did] not
state a removable case” and ordered remand. Id. at 1309.
The instant case is virtually indistinguishable from Cole and its progeny. In accordance
with Kentucky’s pleading rules, Jenkins (like Cole) vaguely stated the amount of his damages –
an amount that “exceed[s] the available $50,000.00 underinsured motorists limits” – in his state
court complaint. [R. 1-1 at ¶ 8]. His post-removal admission (like Cole’s stipulation) is
therefore the first specific statement regarding the amount of his claimed damages in this case.
Rather than retroactively attempting to reduce his demand in an effort to avoid federal
jurisdiction or changing the information on which the removing defendants relied, Jenkins’
admission is consistent with his complaint and simply clarifies that the amount he seeks is more
than $50,000, but less than $75,000. It merely “provide[s], ab initio, the specific damage
amounts claimed.” Manning, 2011 WL 146391 at *2. Based upon this stipulation, as well as
the paucity of information in the record regarding the specific amount in controversy Jenkins
seeks, the Court finds that it lacks subject matter jurisdiction and must remand this case.
Contrary to Douglas’ assertions, that this document was filed in Whitley Circuit Court
after removal does not change this conclusion. Discovery documents, affidavits, and even letters
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between opposing counsel are all sufficient to support a determination on the jurisdictional
amount at issue. E.g., Captain v. Wal-Mart Stores E., Inc., No. CIV. 10-501-HJW-JGW, 2010
WL 4875702, at *1 (S.D. Ohio Oct. 7, 2010) report & recommendation adopted, No. C-1-10501, 2010 WL 4825890 (S.D. Ohio Nov. 23, 2010) (remanding on the basis of a plaintiff’s
affidavit that “amount[ed] to a post-removal stipulation that damages will not exceed $75,000);
Labuy v. Peck, 790 F. Supp. 2d 601, 602 (E.D. Ky. 2011) (stating that a settlement letter was
sufficient to establish an amount in controversy); Wood v. Malin Trucking, Inc., 937 F. Supp.
614, 616 (E.D. Ky. 1995) (discovery documents appropriate). The signed, notarized document
here amounts to a stipulation that Jenkins’ damages will remain below the federal jurisdictional
minimum.
Having determined that remand is required, the Court notes that Jenkins’ post-removal
stipulation will bind him to a recovery of no more than $75,000 as this action continues in the
state court. Tankersley, 33 F. Supp. 3d at 780 (“When a case is remanded on the basis of a postremoval stipulation then the plaintiff is bound to recover no more than the damages to which he
stipulated upon his return to state court.”); Fenger, 194 F. Supp. 2d at 605 (noting that in this
situation, “the doctrine of estoppel applies to prevent an amended request for additional damages
in state court”).
III
Accordingly, pursuant to 28 U.S.C. §1447(c), and for the foregoing reasons, it is hereby
ORDERED as follows:
1.

Plaintiff’s Motion to Remand [R. 6] is GRANTED;

2.

This action is REMANDED in its entirety to the Whitley Circuit Court from

which it was removed; and
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3.

This matter is STRICKEN from the Court’s active docket.

This the 30th day of June, 2015.

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