King et al v. Graham et al
MEMORANDUM OPINION & ORDER: It is hereby ORDERED as follows: 1. The plaintiffs' motion to remand [Record No. 7 ] is GRANTED. 2. This matter is REMANDED to the Harlan Circuit Court and STRICKEN from the Court' docket. Signed by Judge Danny C. Reeves on 04/11/2018.(KJA)cc: COR, Certified Copy to Harlan Circuit Court via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
DENNY KING, et al.,
TOMMY L. GRAHAM, et al.,
Civil Action No. 6: 18-56-DCR
The plaintiffs filed this action in the Harlan Circuit Court on January 22, 2018, alleging
that the defendants negligently caused a mudslide to enter their property, resulting in “severe
damage to both their real property and chattel.” [Record No. 1-1, ¶¶ 21-30] The Complaint
seeks compensatory damages, costs, interest, and attorney’s fees. [Id. ¶¶ 3-6 of the ad damnum
clause] Consistent with the Kentucky Rules of Civil Procedure, the Complaint does not specify
any sum of damages the plaintiffs are seeking. Ky. R. Civ. Pro. 8.01(2).
The defendants removed the matter to this Court on February 23, 2018. They alleged
that this Court has original jurisdiction under 28 U.S.C. § 1332(a)(1), and that removal is
proper under 28 U.S.C. § 1441(a), “because there is complete diversity of citizenship between
the plaintiffs and defendants and the amount in controversy exceeds $75,000.00.” 1 The matter
is now pending for consideration of the plaintiffs’ motion to remand. [Record No. 7]
To properly invoke this Court’s diversity jurisdiction under 28 U.S.C. § 1332(a)(1), the
Notice of Removal must allege that “the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs.” The defendants’ Notice of Removal makes no
mention of interest and costs and, therefore, is defective.
Where, as here, “State practice either does not permit demand for a specific sum or
permits recovery of damages in excess of the amount demanded,” the defendant may assert
the amount in controversy in its notice of removal. 28 U.S.C. § 1446(c)(2)(A)(ii); Ky. R. Civ.
Pro. 8.01(2). However, “[a] removal action is only proper based on the amount in controversy
asserted in the removal notice ‘if the district court finds, by the preponderance of the evidence,
that the amount in controversy exceeds the amount specified in 28 U.S.C. § 1332(a).’” Shupe
v. Asplundh Tree Expert Co., 566 F. App’x 476, 481 (6th Cir. 2014) (quoting 28 U.S.C. §
1446(c)(2)(B)). “The party seeking removal bears the burden of demonstrating that the district
court has original jurisdiction.” Id. (quotations omitted). Further, the removal statute is strictly
construed and all doubts resolved in favor of remand. Shupe, 566 F. App’x at 481 (quotations
To satisfy the preponderance of the evidence standard, the removing party must
produce “competent proof” that the amount in controversy is met. Cleveland Hous. Renewal
Project v. Deutsche Bank Trust Co., 621 F.3d 554, 559 (6th Cir. 2010). The defendant can
satisfy this requirement by pointing to “clear allegations” in the Complaint that make it selfevident that the amount in controversy is well in excess of $75,000.00. Ison v. C. Reiss Coal
Co., 13-cv-10, 2013 SL 789122 (E.D. Ky. Mar. 1, 2013) (citing Hayes v. Equitable Energy
Res. Co., 266 F.3d 560, 573 (6th Cir. 2001)). “But where a complaint provides no basis to
ascertain the nature or extent of the plaintiffs damages, the allegations are not sufficiently
clear,” and the matter should be remanded because “speculation is not competent proof.” Id.
The defendants in this case allege that “it is more likely than not that at least one or
more of [the plaintiffs] claim damages in excess of $75,000.00 against one or more of the
defendants, since they allege ‘severe damage to both their real property and chattels.’” [Record
No. 1, ¶ 9 (quotations omitted; alterations adopted)] However, there is no indication in the
Complaint or the Notice of Removal that the value of any of the individual properties or
chattels at issue exceeds $75,000.00, exclusive of interest and costs, and it is not self-evident
from the mere allegation that the damage was “severe” that the amount in controversy is well
in excess of this jurisdictional minimum. As a result, the defendants have not carried their
burden of establishing by a preponderance of the evidence that the amount in controversy
exceeds $75,000.00, exclusive of interest and costs. Accordingly, it is hereby
ORDERED as follows:
The plaintiffs’ motion to remand [Record No. 7] is GRANTED.
This matter is REMANDED to the Harlan Circuit Court and STRICKEN from
the Court’s docket.
This 11th day of April, 2018.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?