Brewer v. Schindler Elevator Corporation
OPINION AND ORDER Denying Plaintiff's 9 Motion to Remand. Signed by District Judge Robert H. Cleland. (SBur)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
Case No. 16-13133
SCHINDLER ELEVATOR CORPORATION,
OPINION AND ORDER DENYING PLAINTIFF’S MOTION TO REMAND
Plaintiff Jane Brewer brought this action in state court against Defendant
Schindler Elevator Corporation on August 1, 2016. (Dkt. # 2, Pg. ID 15.) Plaintiff alleges
that she was injured when the elevator she was riding malfunctioned: descending,
rising, and descending again before stopping and trapping her for ninety minutes. (Dkt.
# 1, Pg. ID 6.) Plaintiff did not allege a specific amount in controversy, but requested
damages exceeding $25,000 (Id.) In Michigan, plaintiffs do not need to specify an
amount in controversy unless they seek $25,000 or less. Mich. Ct. R. 2.111(B)(2) .
Defendant filed notice of removal in this court on August 29, 2016, claiming diversity
jurisdiction. (Dkt. # 1, Pg. ID 1); see 28 U.S.C. § 1332.
Before the court is Plaintiff’s Motion to Remand on the grounds that Defendant
failed to establish that the amount in controversy exceeded $75,000. With the motion,
Plaintiff offered to stipulate that: “She will not be making a claim nor pursuing damages
in an amount equal to or exceeding the sum of $75,000.” (Dkt. # 9, Pg. ID 32.)
Defendant relied on damages asserted in the complaint and a series of pre-removal
settlement negotiations valuing the claim at $85,000. (Dkt. # 2, Pg. ID 5–8.) The matter
is fully briefed and no hearing is needed. See E.D. Mich. LR 7.1(f)(2). For the reasons
stated below, the court will deny Plaintiff’s motion
Defendants in a civil action filed in state court may remove the action to federal
court if the federal court has original jurisdiction. See 28 U.S.C. § 1441. The federal
court has diversity jurisdiction when the action is between citizens of different states and
the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a)(1). Generally, the
sum claimed by the plaintiff, if made in good faith, is the amount in controversy. See St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). However, where a
plaintiff claims an unspecified amount in damages, the defendant seeking removal has
the burden to prove that the amount in controversy more likely than not exceeds
$75,000. Everett v. Verizon Wireless, Inc., 460 F.3d 818, 822 (6th Cir. 2006) (citing
Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir. 1993) abrogated on other
grounds by Hertz Corp. v. Friend, 559 U.S. 77 (2010)). When considering the amount in
controversy, courts examine the claims at the time of removal. Rogers v. Wal-Mart
Stores Inc., 230 F.3d 868, 871 (6th Cir. 2000). Events that occur after removal that
reduce the amount in controversy do not deprive a court of jurisdiction. Id. at 872.
Plaintiff makes two arguments for remand: that an unequivocal limitation of
damages below the jurisdictional limit generally requires remand and that Defendant
failed to meet its burden to prove the jurisdictional amount by a preponderance of the
evidence. (Dkt. # 9-2, Pg. ID 41.)
Plaintiff argues that her post-removal stipulation is an unequivocal limitation of
damages that requires remand. (Dkt. # 9-2, Pg. ID 42.) Generally, a post-removal
stipulation reducing the amount in controversy to below the jurisdictional limit does not
destroy diversity jurisdiction because the “determination of federal jurisdiction in a
diversity case is made at the time of removal.” Rogers, 230 F.3d at 872. However, the
Sixth Circuit has recognized, in an unpublished opinion, a situation where a postremoval stipulation could require a court to remand. In Shupe v. Asplundh Tree Expert
Co, the court held that a plaintiff may stipulate to a claim less than $75,000 when the
stipulation unequivocally limits damages and provides the first specific information about
the amount in controversy. 566 Fed. Appx. 476, 482 (6th Cir. 2014). In such
circumstances, the stipulation works to clarify, rather than reduce, the amount in
controversy. Id. Shupe does not apply here because Plaintiff’s stipulation is not the first
instance where Plaintiff provided information regarding the amount in controversy—as
discussed below, Plaintiff valued her claim over the jurisdictional amount during a series
of settlement negotiations before the suit. The court finds no reason here to diverge
from the rule expressed in Rogers. Plaintiff’s post-removal stipulation does not require
Plaintiff, relying on May v. Wal-Mart Stores, Inc., argues that settlement
negotiations alone cannot establish the amount in controversy. See 751 F. Supp. 2d
946, 949 (E.D. Ky., Nov. 17, 2010). In May, the defendant relied exclusively on the
plaintiff’s settlement demand as evidence of the amount in controversy. May, 751 F.
Supp. 2d at 949. The court found that the settlement demand alone was insufficient to
establish the amount in controversy; however, the settlement demand was some
evidence of the amount in controversy. Id. This district has permitted the use of an email
containing settlement demands as relevant evidence to establish the amount in
controversy. See, e.g., Santos-Tiller v. Krispy Kreme Doughnut Corp., 2016 WL
4445329 (E.D. Mich., Aug. 24, 2016) (Cleland, J.). Likewise, several circuits have held
that a plaintiff’s settlement offer is relevant evidence of the amount in controversy. See,
e.g., McPhail 529 F.3d at 956 (citing Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir.
2002)); Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813, 816 (7th Cir. 2006). Unlike
the defendant in May, Defendant did not solely rely on a settlement demand, but on a
combination of settlement negotiations, additional expenses, and the allegations in the
complaint to value the claim over $75,000.
Defendant relies on a series of pre-suit settlement negotiations that occurred
over a 21-month period where Plaintiff valued the claim at $85,000. (Dkt. # 2, Pg. ID 16;
Dkt. # 7, Pg. ID 28; Dkt. # 10, Pg. ID 52–54.) Defendant provided reports obtained
before the suit detailing Plaintiff’s injuries. Plaintiff suffered from back pain with
radiculopathy, likely from disc protrusions at her L1-L2 and L5-S1 vertebrae. (Dkt. # 10,
Pg. ID 58.) The report also described Plaintiff’s treatment for the injuries. (Id. at 57–59).
Beyond the settlement negotiations, Defendant relies on a workers compensation lien of
$11,000, lost wages worth approximately $5,000, and additional lost wages and workers
compensation for unpaid chiropractic treatments totaling $6,600. (Dkt. # 10, Pg. ID 53.)
Defendant also produced physical therapy bills totaling $7,100, which all combined
totals $29,700 in economic damages. (Id. at 67.)
Defendant also points to the allegations in the complaint. A defendant may rely
on an estimate of potential damages from the allegations within the complaint. McPhail,
529 F.3d at 955–56. The court may determine the amount in controversy based on the
face of the complaint even though the complaint did not specify the numerical value of
the damages. Id. at 955–56 (citing Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th
Cir. 1999). Plaintiff here alleges injuries to her back, legs, foot, “and related and
resultant injuries.” (Dkt. # 2, Pg. ID 7.) These injuries led Plaintiff to suffer from back
pain with radiculopathy, sleep deprivation, and anxiety. (Dkt. # 10, Pg. ID 58.) Plaintiff in
her complaint seeks relief for several different kinds of damages such as physical pain
and suffering, disability and disfigurement, mental anguish, fright and shock, denial of
social pleasures and enjoyment of the usual activities of life, as well as
“embarrassment, humiliation, and mortification.” (Id.) She seeks past and future medical
expenses, and loss of earnings and earning capacities. (Id.)
This district has previously found that requests for similar relief indicated that the
amount in controversy more likely than not exceeded $75,000. In Bass v. IKEA U.S. E.
LLC, the plaintiff listed a broken nose and other physical injuries to plaintiff’s face, head,
left hand, right knee, and back. 2016 WL 2342321, at *2 (E.D. Mich. May 4, 2016)
(Drain, J.). The plaintiff in Bass also requested relief for pain and suffering, mental
anguish, and continued medical care. Id. The court determined that these damages
indicated that the amount in controversy more likely than not exceeded $75,000. Id.
Similarly, the plaintiff in Barber v. Zurich American Ins. Co. alleged injuries to the
plaintiff’s lower back, neck, legs, left arm, headaches, and depression as well as loss of
wages, reasonable and necessary expenses for care, recovery, or rehabilitation. 2015
WL 93530, at *2 (E.D. Mich. Jan. 7, 2015) (Zatkoff, J.). The court determined that these
injuries, “combined with an open-ended request for an unspecified amount of damages,”
made it more likely than not that the amount in controversy exceeded $75,000. Id.
(internal quotation marks omitted).
The court is satisfied that the pre-suit and pre-removal settlement negotiations,
Plaintiff’s past medical expenses, and the allegations in the complaint show that the
amount in controversy more likely than not exceeded $75,000 at the time of removal,
and Plaintiff’s post-removal stipulation does not require remand.1
IT IS ORDERED that Plaintiff’s Motion to Remand (Dkt. # 9) is DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: February 21, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, February 21, 2017, by electronic and/or ordinary mail.
s/Shawna C. Burns
Case Manager Generalist
Plaintiff did not file a signed statement of damages indicating the amount for each
category as required by Local Rule 81. However, neither party raised the issue and the
court needs not address it.
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