Flannery v. Coca-Cola Refreshments USA, Inc.

Filing 7

ORDER OF REMAND: case remanded to the Circuit Court of Ingham County, Michigan; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, kw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DALE FLANNERY,
Plaintiff,

)
)
)
-v)
)
COCA-COLA REFRESHMENTS USA, INC. and )
DON HARKNESS,
)
Defendants.
)
____________________________________)

No. 1:12-cv-1274
HONORABLE PAUL L. MALONEY

ORDER OF REMAND FOR LACK OF JURISDICTION
Plaintiff initiated this action on October 11, 2012, by filing his complaint in the Circuit Court
of Ingham County, Michigan. On November 19, 2012, Defendants removed this action to federal
court under 28 U.S.C. § 1446 and the diversity statute, 28 U.S.C. § 1332.
ANALYSIS
“As courts of limited jurisdiction, federal courts may exercise only those powers authorized
by the Constitution and statute.” Fisher v. Peters, 249 F.3d 433, 444 (6th Cir. 2001). Federal courts
have an obligation to examine whether they have subject-matter jurisdiction over an action. See
Argaugh v. Y & H Corp., 546 U.S. 500, 506 (2006) (“The objection that a federal court lacks
subject-matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), may be raised by a party, or by a court on
its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”);
Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (“No court can ignore the defect [in
its jurisdiction]; rather a court, noticing the defect, must raise the matter on its own”). When an
action is removed from state court, a federal court must consider whether it has subject matter
jurisdiction. See Probus v. Charter Commc’ns, LLC, 234 Fed. App’x 404, 406 (6th Cir. 2007). If
a district court determines that it lacks subject-matter jurisdiction over a removed action, the action
must be remanded. 28 U.S.C. § 1447©.

Removal statutes should be narrowly construed because federal courts are courts of limited
jurisdiction and because removal of a case raises significant federalism concerns. Shamrock Oil &
Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941); Palkow v. CSX Transp., Inc., 431 F.3d 543, 555 (6th
Cir. 2005). The Sixth Circuit Court of Appeals follows a policy that “all doubts as to the propriety
of removal are resolved in favor of remand.” Jacada (Europe), Ltd. v. Int’l Mktg. Strategies, Inc.,
401 F.3d 701, 704 (6th Cir. 2005) (quoting Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir.
1999)).
Plaintiff asserts a personal-injury claim against Defendants based on his slip and fall on
Coca-Cola property. (Compl., ECF No. 1 at 11.) According to the complaint, Plaintiff, an employee
of Corrigan Oil, was delivering diesel fuel to Coca-Cola on January 25, 2012, when he slipped and
fell on an icy snow bank. (Id. at 12.) Plaintiff alleges that Defendants—Coca-Cola itself and Don
Harkness, Manager of Coca-Cola Refreshments—were negligent in maintaining the property. (Id.
at 12–14.) Plaintiff alleges that he and Mr. Harkness are both citizens of Michigan, while Coca-Cola
is a foreign corporation. (Id. at 11–12.) Plaintiff claims that he
has suffered, continues to suffer, and will suffer in the future from
severe injuries, some of which are permanent in nature, including but
not limited to injuries to his neck, back and aggravation of preexisting back problem, which injuries have caused him and will
continue to cause him pain and suffering, mental anguish, fright and
shock, disability, disfigurement, denial of social pleasures and
enjoyments, embarrassment, humiliation, and mortification, and other
damages and injuries to be determined.
(Id. at 15.) Plaintiff also claims that he “was forced to lose time from employment,” that he “will
in the future suffer additional loss of earning capacity and wages,” and that he will “continue to
incur . . . expenses for medical care and treatment.” (Id. at 16.) The complaint alleges that “the
amount in controversy exceeds the sum of Twenty-Five Thousand Dollars.” (Compl., ECF No. 1

2

at 12.)
A defendant may remove a civil action filed in state court to federal district court when the
federal district court would have original jurisdiction over that suit. 28 U.S.C. § 1441(a).
Defendants argue this Court has original jurisdiction over the complaint on diversity grounds.
Under § 1332(a), a federal court has original jurisdiction over civil actions where the amount in
controversy exceeds $75,000 and the matter is between citizens of different states. The party
seeking to remove the action to federal court has the burden of establishing that the district court has
jurisdiction. Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 757 (6th Cir. 2000); Conrad v.
Robinson, 871 F.2d 612, 614 (6th Cir. 1989) (holding defendant has the burden of establishing that
removal was proper).
Defendants admit that both Plaintiff and Defendant Harkness are citizens of Michigan, which
ordinarily would destroy diversity jurisdiction. They argue, however, that Mr. Harkness has been
fraudulently joined, as Plaintiff has no plausible claim against him. If accepted, this argument would
allow removal of the statute, as parties may not name a party defendant for the sole purpose of
avoiding removal. See Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907–08 (6th Cir.
1999).
But even if the court assumes that Mr. Harkness was in fact fraudulently joined, the notice
of removal runs into a problem. Because the complaint does not expressly demand more than
$75,000, the court must determine on its own whether, “by the preponderance of the evidence, . .
. the amount in controversy exceeds” the required amount. 28 U.S.C. § 1446(c)(2)(B). In support
of removal, Defendants allege that the amount in controversy does exceed $75,000 (ECF No. 1, at
5), but they provide no evidence to support this assertion. They cite only to the allegations in the
Complaint quoted above; aside from this boilerplate, Defendants offer no evidence about the scope
3

of this claim. These statements, on their own, give the court no basis on which to determine that
Plaintiff’s damages are likely to amount to more than $75,000. Gafford v. Gen. Elec. Co., 997 F.2d
150, 158 (6th Cir. 1993), overruled on other grounds by Hertz Corp. v. Friend, — U.S. —, 130 S.
Ct. 1181 (2010). Without any such support, the court cannot find “by the preponderance of the
evidence” that the amount in controversy is sufficient to confer federal jurisdiction. 28 U.S.C. §
1446(c)(2)(B); see Winters v. Speedway Superamerica, LLC, No. 1:12-cv-17, 2012 WL 112981, *2
(W.D. Mich. Jan. 11, 2012) (Maloney, J.) (remanding case where defendants claimed amount-incontroversy based on allegations in complaint and “a single settlement that exceeded $100,000”).
CONCLUSION
Because Defendants have not sufficiently alleged that the amount in controversy in the
complaint exceeds $75,000, this Court lacks subject-matter jurisdiction over the action. Therefore,
this action is hereby REMANDED to the Circuit Court of Ingham County, Michigan.
IT IS SO ORDERED.

Date:

November 20, 2012

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

4