Estate of Robert Klope et al v. Consolidated Resources Health Care Fund I, L.P.
MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell on 12/1/2017. Plaintiff's Motion to Remand (DN 6 ) is DENIED. Telephonic Scheduling Conference set for 12/20/2017 at 9:30 AM before Senior Judge Thomas B. Russell. cc: Counsel (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 5:17-CV-00065-TBR
ESTATE OF ROBERT KLOPE,
CONSOLIDATED RESOURCES HEALTH CARE FUND I, L.P.,
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Remand this case back to
McCracken County Circuit Court, [DN 6.] Defendant Consolidated Resources Health Care Fund
I, L.P. (“Consolidated” or “Defendant”) filed a response, [DN 8], and a supplemental response,
[DN 10.] Plaintiff did not reply, nor did it respond to Defendant’s supplemental response, and the
time to do so has passed. Fully briefed, this matter is now ripe for adjudication. For the reasons
explained below, Plaintiff’s motion is DENIED.
This action arises out of Decedent Robert Klope’s residence at Parkview Nursing &
Rehabilitation Center (“Parkview”) in Paducah, Kentucky from December 23, 2016 until his
death on August 16, 2016. [DN 1-1 (Complaint).] In this action, Darrell Klope, as Administrator
of the Estate of Robert Klope, alleges that Defendant rendered inadequate care to Robert Klope
during his stay at Parkview, which led to an “accelerated deterioration of his health and physical
condition beyond that caused by the normal aging process, including, his Wrongful Death.” [Id.
at 6.] Robert Klope’s estate brought suit against Defendant in McCracken County Circuit Court
and filed an Amended Complaint there on April 3, 2017, alleging negligence and wrongful
death, medical negligence, corporate negligence, and violations of laws governing the rights of
residents in a long-term-care facility. [DN 1-1 at 6–14.] Defendant removed the case to this
Court on April 19, 2017. [DN 1 (Notice of Removal).] Thereafter, Plaintiff filed the instant
motion, requesting that the Court remand this action back to McCracken County Circuit Court.
[DN 6 (Motion to Remand).]
A defendant may remove a state-court action only if the plaintiff could have originally
filed it in this Court. See 28 U.S.C. § 1441(a); Everett v. Verizon Wireless, Inc., 460 F.3d 818,
821 (6th Cir. 2006). As the party seeking removal, the defendant bears the burden of showing
that the Court has such original jurisdiction. See Vill. of Oakwood v. State Bank & Tr. Co., 539
F.3d 373, 377 (6th Cir. 2008) (citing Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 453–
54 (6th Cir. 1996)). Any doubts as to the propriety of removal must be resolved against the
defendant. Jacada (Europe), Ltd. v. Int'l Mktg. Strategies, Inc., 401 F.3d 701, 704 (6th Cir.
2005), abrogated on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576
(2008); see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941).
Of the two kinds of this Court's original jurisdiction, see 28 U.S.C. §§ 1331–1332, this
case concerns the one labeled “diversity,” [see DN 1 at 2–3]. The Court exercises such
jurisdiction in “all civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is between” parties who are “citizens of different
States.” 28 U.S.C. § 1332(a)(1). To make those determinations, the Court generally looks at the
complaint at the time of removal. Roddy v. Grand Trunk W. R.R. Inc., 395 F.3d 318, 322 (6th
Cir. 2005) (citing Ahearn, 100 F.3d at 453).
The parties do not dispute that the “diversity of citizenship” requirement of 28 U.S.C. §
1332(a)(1) is satisfied in this case. Rather, the dispute centers on whether the amount in
controversy in the case exceeds $75,000, as is required for diversity jurisdiction to exist. 28
U.S.C. § 1332(a). Ordinarily, the sum demanded “in good faith” in an initial pleading is
considered to be accurate for purposes of determining the amount in controversy. 28 U.S.C. §
1446(c)(2). Plaintiff’s complaint, however, does not demand a specific amount of damages. [See
DN 1-1.] Rather, Plaintiff simply alleges that damages exceeded the state court’s jurisdictional
threshold of $5,000. [Id. at 9–10]; see Ky. Rev. Stat. § 23A.010(1); Ky. Rev. Stat. § 24A.120(1).
Such a pleading practice is not unusual. Many states, including Kentucky, prohibit plaintiffs
from demanding sum-certain damages in pleadings. See Ky. R. Civ. P. 8.01(2). When that is the
case, the removing party must come forward with proof to establish, by a preponderance of the
evidence, that the amount-in-controversy requirement is met. See 28 U.S.C. § 1446(c)(2)(B).
In its motion to remand, Plaintiff asserts that, “[i]n its Notice of Removal, Defendant
simply states that the amount in controversy exceeds $75,000 without providing a single shred of
evidence to support such a claim.” [DN 6 at 2.] In response, Defendant argues that, at the time of
removal, it had a good faith belief “that based on Plaintiff’s demand for compensatory, statutory
and punitive damages,” along with Plaintiffs wrongful death claim, “Plaintiffs claim for damages
will exceed $75,000.” [DN 8 at 1–2.] Plaintiff did not file a reply in support of its motion to
remand. Nor did Plaintiff, at any time, file a post-removal stipulation clarifying that the amount
in controversy is less than $75,000. See, e.g., Tankersley v. Martinrea Heavy Stampings, Inc., 33
F. Supp. 3d 775, 780 (E.D. Ky. 2014) (“When 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.”).
Later, Defendant filed a supplemental response in opposition to Plaintiff’s motion to
remand. [DN 10.] Therein, Defendant asserts that, during settlement negotiations, Plaintiff’s
counsel made, by email, a demand that far exceeds $75,000. Additionally, the email reflects that
Defendant counter-offered with a lesser amount, but an amount that also exceeds $75,000.
Defendant attached the email communication, under seal for confidentiality purposes, as an
exhibit to its supplemental response. [DN 12 (Filed Under Seal).]
The question for the Court, then, is whether Defendant has shown, by a “preponderance
of the evidence, that the amount in controversy exceeds” the $75,000 threshold. 28 U.S.C. §
1446(c)(2)(B). The Sixth Circuit has explained that “[a] settlement demand letter is ‘some
evidence’ regarding the amount in controversy.” Shupe v. Asplundh Tree Expert Co., 566 F.
App'x 476, 480–81 (6th Cir. 2014) (emphasis added) (quoting Smith v. Phillips & Jordan, Inc.,
2011 WL 250435, at *2 (E.D. Ky. January 24, 2011)). A settlement demand letter is not
necessarily dispositive evidence, however. For instance, “[t]he demand might be significantly
more than the case is actually worth,” or, alternatively, “the demand might be less than the case
is actually worth.” Smith, 2011 WL 250435, at *2.
However, in this case, the email communication attached to Defendant’s supplemental
response is particularly probative where, not only is Plaintiff’s demand greater than $75,000, but
Defendant’s counter-offer, which is significantly lower, also exceeds that amount. [See DN 12.]
Accordingly, the Court is satisfied that Defendant has shown, by a preponderance of the
evidence, that the amount in controversy in this case exceeds the jurisdictional threshold for
diversity jurisdiction under 28 U.S.C. § 1332(a). For these reasons, Plaintiff’s motion to remand
this action back to McCracken County Circuit Court, [DN 6], is denied.
For the reasons stated herein, IT IS HEREBY ORDERED that Plaintiff’s Motion to
Remand, [DN 6], is DENIED. A Telephonic Scheduling Conference is SET for December 20,
2017 at 9:30 a.m. The Court shall place the call to counsel.
IT IS SO ORDERED.
December 1, 2017
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