Marzette v. Charter Communications, LCC

Filing 9

MEMORANDUM OPINION AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr. on 9/26/2017 granting 7 Motion to Remand. Plaintiff's request for attorney's fees and costs is DENIED. cc: Counsel, Jefferson Circuit Court Clerk (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-cv-329-JHM
ZEPORIA MARZETTE

PLAINTIFF

V.
CHARTER COMMUNICATIONS, LLC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Remand [DN 7]. Fully briefed,
this matter is ripe for decision. For the following reasons, the Motion to Remand is GRANTED
and Plaintiff’s request for attorney’s fees and costs is DENIED.

I. BACKGROUND
On April 11, 2017, Plaintiff, Zeporia Marzette, filed this action in Jefferson Circuit Court
alleging violations of the Kentucky Civil Rights Act (hereinafter “KCRA”), specifically that she
was subjected to a hostile work environment, disparate treatment because of her religion, and
retaliatory discharge. (Pl.’s Compl. [DN 1-1] ¶ 17.) Plaintiff, who wears a hijab for religious
purposes, was hired by Defendant, Charter Communications, as a customer representative at a
call center in February 2017. (Id. ¶¶ 7-8.) Although Plaintiff’s team trainer was informed that
her hijab was for religious purposes, a supervisor informed Plaintiff that she had to remove her
hijab or be sent home. (Id. ¶ 8-9.) Later that day, Plaintiff met with Defendant’s Human
Resources Manager and was asked to sign a form to request a religious accommodation. (Id. ¶
10.) After submitting the request, a representative of Defendant decided Plaintiff did not provide
enough proof on the form and therefore, she could not wear the hijab for religious purposes. (Id.

¶ 11.) When again faced with ultimatum to remove the hijab or be sent home, Plaintiff opted to
go home. (Id. ¶ 12.) Defendant has instructed Plaintiff that in order to return to work, she must
either remove her hijab or provide proof of her sincerely held religious beliefs by obtaining a
written statement from the head of a mosque. (Id. ¶¶ 13-14.) In her Complaint, Plaintiff seeks
compensatory damages for lost wages, emotional distress, mental anguish, humiliation and
distress, along with an award of attorney fees, costs and expenses.
On May 30, 2017, Defendant filed a Notice of Removal with this Court, asserting
diversity jurisdiction under 28 U.S.C. § 1332(a).

(Def.’s Notice Removal [DN 1] ¶ 6.)

Defendant claimed in its Notice that the amount in controversy exceeds $75,000, basing this
assertion on several recent awards in similar actions that have far exceeded that threshold
amount. (Id. ¶¶ 10–16.) On June 26, 2017, Plaintiff filed her Motion to Remand [DN 7] stating
that the amount in controversy will not exceed $75,000 and guaranteeing this assertion with a
Proposed Stipulation which states that she “is not seeking, will not seek at any time during this
litigation, and will not accept a settlement or an award of damages (compensatory, punitive, or
otherwise), attorneys’ fees, costs, and other relief” in excess of $74,999.99. (Pl.’s Proposed
Stipulation [DN 7-1].) In addition, Plaintiff’s Motion to Remand includes a request for the Court
to award attorney’s fees as Plaintiff alleges that Defendant “improperly removed this matter
without any reasonable basis in which to do so and for the purpose of increasing costs of the
litigation.” (Pl.’s Motion to Remand [DN 7] at 2.) Defendant filed its response on July 17, 2017,
arguing, “Post-removal stipulations do not eliminate the Court’s jurisdiction,” and therefore, the
Motion to Remand should be denied. (Def.’s Resp. to Pl.’s Mot. to Remand [DN 8] at 1-2.)

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II. STANDARD OF REVIEW
Removal from state to federal court is proper for “any civil action brought in a State court
of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a).
Defendant removed this action pursuant to 28 U.S.C. § 1441, claiming that this Court has
diversity jurisdiction over the action under 28 U.S.C. § 1332. Diversity jurisdiction gives “[t]he
district courts . . . original jurisdiction [over] all civil actions where the matter in controversy
exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens
of different states.” 28 U.S.C. § 1332(a), (a)(1).

III. DISCUSSION
1. Motion to Remand
It is undisputed that these parties are diverse. Therefore, the principal issue here is
whether or not Plaintiff’s Stipulation that the amount in controversy in this action does not
exceed $75,000 is sufficient for the Court to remand this action to Jefferson Circuit Court.
Courts within the Sixth Circuit have “noted on several recent occasions that postremoval
stipulations reducing the amount in controversy below the jurisdictional threshold are generally
disfavored because” if plaintiffs “were able to defeat jurisdiction by way of a post-removal
stipulation, they could unfairly manipulate proceedings merely because their federal case begins
to look unfavorable.” Gatlin v. Shoe Show, Inc., No. 3:14-CV-00446-TBR, 2014 WL 3586498,
at *3 (W.D. Ky. July 21, 2014) (citations omitted); see Rogers v. Wal-Mart Stores, Inc., 230 F.3d
868, 872 (6th Cir. 2000); Agri-Power, Inc. v. Majestic JC, LLC, No. 5:13-CV-00046-TBR, 2013
WL 3280244, at *3 (W.D. Ky. June 27, 2013); Proctor v. Swifty Oil Co., Inc., No. 3:12-CV00490-TBR, 2012 WL 4593409, at *3 (W.D. Ky. Oct. 1, 2012). The Sixth Circuit has advised

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that “a post-removal stipulation reducing the amount in controversy to below the jurisdictional
limit does not require remand to state court.” Rogers, 230 F.3d at 872. “However, where a state
prevents a plaintiff from pleading a specific amount of damages,” as Kentucky does, “and the
plaintiff provides specific information about the amount in controversy for the first time in a
stipulation, this district views such stipulations as a clarification of the amount in controversy
rather than a reduction of such.” Agri-Power, 2013 WL 3280244, at *3 (citing Proctor, 2012 WL
4593409, at *3). Therefore, a plaintiff may submit a stipulation that will destroy the amount in
controversy requirement for the purposes of diversity jurisdiction under 28 U.S.C. § 1332. Id.
When a plaintiff chooses to submit a stipulation as to the amount in controversy, the
stipulation must be unequivocal in order to “limit the amount of recoverable damages and
warrant remand.” Egan v. Premier Scales & Sys., 237 F. Supp. 2d 774, 778 (W.D. Ky. 2002); see
Agri-Power, 2013 WL 3280244, at *3; Proctor, 2012 WL 4593409, at *3. This district “has
recognized that a plaintiff may stipulate that it neither seeks, nor will accept, damages in an
amount greater than $75,000, and that such a stipulation will” be sufficiently unequivocal to
destroy diversity jurisdiction. Agri-Power, 2013 WL 3280244, at *3 (emphasis added).
Here, Plaintiff uses language nearly identical to that found in the aforementioned cases,
as she states that she “is not seeking, will not seek at any time during this litigation, and will not
accept a settlement or an award of damages (compensatory, punitive, or otherwise), attorneys’
fees, costs, and other relief” in excess of $75,000. (Pl.’s Proposed Stipulation [DN 7-1].) Under
diversity jurisdiction, “district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28
U.S.C. § 1332(a). Plaintiff here clearly limits the recovery she seeks to an amount below the
threshold requirement spelled out by the statute, as she seeks less than $75,000. See Lovelace v.

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Stonebridge Life Ins. Co., No. 1:13-CV-000138-TBR, 2013 WL 5966729, at *1 (W.D. Ky. Nov.
8, 2013) (finding unequivocal plaintiff’s stipulation that “she will neither seek nor accept
damages in this action in excess of $75,000 for all compensatory damages, punitive damages,
[attorneys’] fees, exclusive of interest and costs”); see also Jenkins v. Douglas, No. CIV. 15-76GFVT, 2015 WL 3973080, at *2 (E.D. Ky. June 30, 2015) (finding plaintiff’s admission that he
will not claim damages of $75,000 exclusive of interests and costs enough to be considered a
binding stipulation for the purposes of remand); Rosenstein v. Lowe’s Home Centers, Inc., No.
CIV.A. 06-CV-415-KKC, 2007 WL 98595, at *1 (E.D. Ky. Jan. 9, 2007) (finding sufficient
plaintiffs’ affidavit that stated they “have never sought, and will not accept, either individually or
collectively, more than $75,000 (exclusive of interest or costs)). Therefore, the language in
Plaintiff’s Stipulation is sufficiently unequivocal for the purposes of this Motion to Remand.
Although Plaintiff’s actual damages may be proven in an amount exceeding $75,000, the
Kentucky state court will be forced to rely on Plaintiff’s Stipulation to prevent the award of
damages from exceeding the stipulated maximum amount of $74,999.99. The U.S. Supreme
Court has recently ruled that stipulations such as the one here are “binding and conclusive . . .
and the facts stated are not subject to subsequent variation.” Christian Legal Soc’y Chapter of the
Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 677 (2010) (quoting 83 C.J.S.
Stipulations § 93 (2000)). “Thus, ‘[s]tipulations must be binding’ because they amount to an
‘express waiver made . . . by the party or his attorney conceding for purposes of the trial the truth
of some alleged fact.’” Agri-Power, 2013 WL 3280244, at *4 (citing Standard Fire Ins. Co. v.
Knowles, 133 S.Ct. 1345, 1348 (2013)). Here, Plaintiff demonstrates that she intends for her
Stipulation to be binding, stating, “This stipulation is binding in the above action, Jefferson
County Civil Action, 17-CI-01776, and any other action, administrative or judicial based on the

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same or related claims.” (Pl.’s Proposed Stipulation [DN 7-1].) For this reason, Plaintiff
effectively stipulates that she neither seeks nor will accept damages in excess of the jurisdictional
amount, and she intends for this limitation to be binding and conclusive on all future
proceedings.
Therefore, the Court finds Plaintiff’s Stipulation to be valid and enforceable and this
action will be remanded to Jefferson Circuit Court.

2. Attorney’s Fees and Cost
Plaintiff has also asked that she be awarded attorney’s fees and costs stating that,
“Defendant’s removal is sought in bad faith and lacks any reasonable basis considering
Plaintiff’s Complaint states explicitly that damages do not exceed $75,000.” (Mot. to Remand
[DN 7]). “An order remanding the case may request payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. 1447(c). The
use of “may” in this provision gives courts discretion to grant fees to the opposing party. Ohio ex
rel. Skaggs v. Brunner, 629 F.3d 527, 530 (6th Cir. 2010). The Supreme Court has held, “Absent
unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin
Capital Corp., 546 U.S. 132, 141 (2005). The Sixth Circuit has “similarly instructed that an
award of costs, including attorney fees, is inappropriate where the defendant’s attempt to remove
the action was ‘fairly supportable,’ or where there has not been at least some finding of fault with
the defendant’s decision to remove.” Warthman v. Genoa Twp. Bd. Of Trs., 549 F.3d 1055,
1059-60 (6th Cir. 2008) (internal quotations omitted).

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The Court does not find that Defendant lacked an objectively reasonable basis for seeking
removal. The Plaintiff’s claim was originally filed in Kentucky state court, which prohibits
plaintiffs from pleading a specific amount of damages in its complaint. Ky. CR 8.01 (“In any
action for unliquidated damages the prayer for damages in any pleading shall not recite any sum
as alleged damages other than an allegation that damages are in excess of any minimum dollar
amount necessary to establish the jurisdiction of the court.”). Since Kentucky’s state practice
does not allow demands for a specific sum, a defendant is entitled to assert the amount in
controversy in its notice of removal. 28 U.S.C. § 1446(c)(2)(A)(ii). Even though Plaintiff stated
in her Complaint that the amount in controversy was less than $75,000, Defendant was not
bound by that Assertion. (Pl.’s Compl. [DN 1-1] ¶ 5.)
Further, the amount in controversy claimed by Defendant in its Notice of Removal is
well-founded. Defendant supported its stated amount in controversy by citing to specific cases in
which juries have awarded damages similar to those sought by Plaintiff in this case. (Def.’s
Notice of Removal [DN 1] ¶¶ 10-16.) Because Plaintiff indicated in her Complaint that she
intended to seek damages for emotional distress and Defendant provided evidence of several
cases in which juries have awarded damages for emotional distress in excess of $75,000, it is
reasonable that Defendant held the good faith believe that damages in this case could also
surpass $75,000 and warrant removal to federal jurisdiction.
Moreover, until Plaintiff clarified her damages, Defendant had no assurance that an
award in excess of $75,000 would be off the table. Simply because a plaintiff states that she does
not seek damages greater than $75,000 does nothing to prevent her from being awarded or
collecting damages in excess of this jurisdictional amount. Proctor v. Swifty Oil Co., No. 3:12CV-00490-TBR, 2012 WL 4593409, at *3 (W.D. Ky. Oct. 1, 2012). Therefore, because the

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Court finds that the Defendant’s removal was objectively reasonable and there is no evidence of
bad faith, awarding attorney’s fees and costs to the Plaintiff is unwarranted.

IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff’s Motion to
Remand is GRANTED and Plaintiff’s request for attorney’s fees and costs is DENIED.

cc: counsel of record
Jefferson Circuit Court Clerk
September 26, 2017

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