Mooney v. AT&T Corporation

Filing 8

MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 6/1/2018 - The motion to remand will be granted. A separate order will be entered this date in accordance with this opinion.cc:counsel (DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

MARCHELLE MOONEY

PLAINTIFF

v.

CIVIL ACTION NO. 3:18CV-225-CRS

AT&T CORP.

DEFENDANT

MEMORANDUM OPINION

The above-styled action was removed to this court under our diversity jurisdiction. The
matter is before the court on motion of the plaintiff, Marchelle Mooney (“Mooney”), to remand
the action to the Jefferson County, Kentucky, Circuit Court. The complaint alleges that Mooney,
an African American female, worked for AT&T Corp. (“AT&T”) worked as a sales associate.
The Complaint does not identify her dates of employment. Mooney alleges that during her
employment, she complained to AT&T authorities that she was being subjected to racial
harassment and discrimination, and that she suffered retaliation and was treated less favorably
than Caucasian employees. DN 1-3. Mooney alleges that AT&T is a corporation doing business
in Louisville, Kentucky, but the complaint does not identify its place of incorporation. Mooney
is a Kentucky citizen. Venue is claimed to be proper, as Mooney resides in Jefferson County,
Kentucky. The amount in controversy in this case is alleged to exceed the jurisdictional
minimum of the Jefferson County, Kentucky, Circuit Court, but is less than the $75,000.00
jurisdictional minimum for diversity actions in this court, inclusive of costs, punitive damages
and the fair value of any injunctive relief. Id.
In considering Mooney’s motion to remand, the court must consider (1) whether AT&T

has shown by a preponderance of the evidence that the amount in controversy is satisfied,
considering the damages alleged at the time of removal, and (2) whether Mooney’s post-removal
stipulation vitiates the amount in controversy finding. See Agri-Power, Inc. v. Majestic JC, LLC,
No. 13CV-46-TBR, 2013 WL 3280244 (W.D.Ky. June 27, 2013).
As noted in Agri-Power, Inc., supra., at *2-3,
As amended, § 1446 permits a defendant to assert the amount in controversy in its
notice of removal if removing from a jurisdiction where “State practice either
does not permit demand for a specific sum or permits recovery of damages in
excess of the amount demanded.” § 1446(c)(2)(A)(ii). Removal from such a
jurisdiction is proper upon the defendant’s assertion of the amount in controversy
“if the district court finds, by a preponderance of the evidence, that the amount in
controversy exceeds the amount specified in section 1332(a).” § 1446(c)(2)(B).
These recently enacted congressional amendments are applicable in the present
case because Kentucky both prohibits the demand for a specific sum and allows
recovery beyond that demanded in the pleadings. See Ky.R.Civ.P. 8.01(2),
54.03(2). Therefore, the first issue that must be addressed is whether the
Defendants have shown that it is more likely than not that the amount in
controversy exceeds $75,000...In regard to the second issue at hand...this court
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
destroy the amount-in-controversy requirement for § 1332 jurisdiction. ee, e.g.,
Spence v. Centerplate, ___F.Supp.2d ___, 2013 WL 1163991, at *2 (W.D.Ky.
Mar. 21, 2013). Still, “only where that clarifying stipulation is unequivocal will it
limit the amount of recoverable damages and warrant remand.” Proctor, 2013
WL 4593409, at *3 (citing Egan v. Premier Scales & Sys., 237 F.Supp.2d 774,
778 (W.D.Ky. 2012).
In support of removal, AT&T offers that it has “conclusively established that the parties
are completely diverse.” DN 7, p. 2. It alleges that diversity is established through the affidavit
of Deirdre L. Scott (DN 1-2). Scott states that she is employed by AT&T Services, Inc. as
Director—Financial Analysis—the duties of which require that she routinely review company
records which include the terms and conditions of employment of active and former employees
of BellSouth Telecommunications, LLC (“BellSouth”). Scott states that Mooney is a current
employee of BellSouth as a Sales Associate with the AT&T Digital Care Loyal Retention Group.

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She states that Mooney began employment with BellSouth in December, 2007, and that her
annual base salary in 2017 was $65,052.00. DN 1-2, ¶¶ 2-3.
AT&T has not yet answered the complaint. Its Notice of Removal states in footnote that
AT&T is improperly named as a defendant in this action because Mooney is employed by
BellSouth. DN 1, p. 1, n. 1. It then states that “Defendant is a foreign corporation incorporated
in the state of New York, with its principal place of business in New Jersey.” DN 1, p. 5, ¶ 13.
Scott does not state anything in her affidavit about the citizenship of either AT&T or BellSouth.
The only mention of defendant’s place of incorporation or principal place of business is found in
the Notice of Removal which contains argument of counsel, not evidence in the case.
In its computation of damages, AT&T concludes that Mooney’s claimed damages exceed
the sum of $75,000.00. It notes that, per Scott, her annual base salary was $65,052.00, and notes
that Mooney seeks back pay and front pay. AT&T opines that, conservatively, this case would
not go to trial for 18 months. Thus it concludes that “back wages alone could eclipse $97,000.”
DN 7, p. 2. However, AT&T states, and Scott avers, that Mooney remains employed by
BellSouth. AT&T offers no explanation for its back wages argument offered to substantiate that
the complaint meets the amount in controversy requirement for diversity jurisdiction.
With no substantiated argument for the compensatory damages component of the prayer
for relief, we cannot credit any argument concerning damages for emotional distress, mental
anguish, humiliation and embarrassment. Any comparison, in this instance, to past awards is
thus fruitless.

Additionally, Mooney has filed a stipulation, through counsel, accompanying her motion
for remand that

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As evidenced by the signature of counsel for Plaintiff below, Plaintiff, Marchelle
Mooney, hereby stipulates as follows:
1. The amount in controversy in connection with Plaintiff’s claims asserted in
this case is less that seventy-five thousand dollars ($75,000), inclusive of
punitive damages, costs, attorneys’ fees, and the fair market value of any
injunctive relief; and
2. Plaintiff will neither seek nor accept any amount equal to or greater than
seventy-five thousand dollars ($75,000), inclusive of punitive damages, costs,
attorneys’ fees, and the fair market value of any injunctive relief.
This stipulation is intended to be unequivocal and binding on Plaintiff, and it is
Plaintiff’s intention that this Stipulation be used by the Court to limit the amount
of any award to Plaintiff.
DN 5-1.
The language of this stipulation comports with Martin v. UPS Supply Chain Solutions,
Civil Action No. 3:14-CV-00342-TBR, 2015 WL 691557 (W.D.Ky. Feb. 18, 2015), Agri-Power,
Inc., supra., and cases cited therein holding that such a stipulation satisfies the requirement that
the plaintiff’s stipulation be clear and unequivocal. See also Agri-Power at *4, quoting Standard
Fire Ins. Co. v. Knowles, 133 S.Ct. 1345, 1348 (2013)(“‘[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.’”).
AT&T is concerned that the stipulation may not be watertight in state court. It notes that
the stipulation is an unsworn statement of Mooney’s attorney and there is some small variance
between the complaint and the stipulation.1 We reiterate what we have stated in similar cases.
While an unscrupulous party might seek to abuse the process, this court is placing absolute
reliance upon counsel’s statement limiting damages as an essential component of our order of
remand. To be clear, not only do we have the signed stipulation filed in the record of this case
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AT&T notes that the stipulation includes costs in the itemization of the amount in controversy, where the
complaint did not mention costs.
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on behalf of the plaintiff, but we also have a representation in the state court complaint that the
unspecified amount2 in controversy is less than $75,000.00. DN 1-3, p. 2, ¶ 3. The case was
removed to this court despite this statement in the complaint, and thus there is no post-removal
manipulation by the plaintiff of the amount in controversy. Rather, the stipulation clarifies that
plaintiff stipulates that it is bound by this sum on remand. While the court has no doubt as to the
unequivocal statement of the plaintiff, we note that any attempt to void the commitment will be
considered sanctionable conduct and may justify re-removal. See, VanEtten v. Boston Scientific,
2009 WL 3485909, *2 (W.D.Ky. Oct. 23, 2009); Hoop v. Wal-Mart East, L.P., Civil No. 13115-GFVT, 2014 WL 1338704 (E.D.Ky. Mar. 31, 2014). The motion to remand will therefore
be granted.
A separate order will be entered this date in accordance with this opinion.

June 1, 2018

IT IS SO ORDERED.

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2

Unspecified due to the rules of pleading in Kentucky state courts, but properly noted to exceed the jurisdictional
threshold of the Circuit Court.
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