Smith v. Packers Sanitation Services, Inc.

Filing 9

ORDER OF REMAND: case remanded to the 9th Circuit Court for Kalamazoo 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
DONOVAN SMITH,
Plaintiff,

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-v)
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PACKERS SANITATION SERVICES, INC.,
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Defendant.
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____________________________________)

No. 1:13-cv-1171
HONORABLE PAUL L. MALONEY

ORDER OF REMAND TO THE 9TH CIRCUIT COURT FOR KALAMAZOO
COUNTY, MICHIGAN
Plaintiff Donovan Smith, proceeding pro se, filed a handwritten complaint against Defendant
Packers Sanitation Services, Inc. Smith is a resident of Kalamazoo County. (ECF No. 1-2 “Compl.”
¶ 2.) Defendant is a Wisconsin Corporation. (ECF No. 1 “Notice of Removal” ¶ 5.) Plaintiff
alleged a claim arising under Michigan law, a violation of Michigan’s Elliot-Larsen Civil Rights
Act. Relying on the diversity statute, 28 U.S.C. § 1332, Defendant timely removed the lawsuit to
this Court.
LEGAL FRAMEWORK
“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
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“Article III generally requires a federal
court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a
case.”). 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 F.App’x 404, 406 (6th Cir.
2007) (“Therefore, despite Probus’s failure to move to remand, the district court should have sua

sponte addressed the issue of subject matter jurisdiction.” (citing Curry v. United States Bulk
Transp., Inc., 462 F.3d 536, 539-41 (6th Cir. 2006))).
The diversity statute extends federal subject-matter jurisdiction to cases and controversies
involving citizens from different states, so long as the amount-in-controversy exceeds $75,000. 28
U.S.C. § 1332(a)(1). As the party invoking federal jurisdiction, the removing party bears the burden
of establishing, by competent proof, that the elements of the diversity statute have been met.
Cleveland Housing Renewal Project v. Deutsche Bank Trust Co., 621 F.3d 554, 559 (6th Cir. 2010)
(citing Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010)). The removing party must show, by a
preponderance of the evidence, that the allegations in the complaint at the time of removal satisfies
the amount-in-controversy requirement. Northup Props., Inc. v. Chesapeake Appalachia, LLC, 567
F.3d 767, 769-70 (6th Cir. 2009). When the complaint seeks an unspecified amount of damages,
the defendant may satisfy the amount-in-controversy by showing that the plaintiff’s claim “more
likely than not” meets the federal threshold. See Everett v. Verizon Wireless, Inc., 460 F.3d 818, 222
(6th Cir. 2006).
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. American Tobacco Co., 183 F.3d 488, 493 (6th
Cir. 1999)). If a district court determines, at any time before the entry of final judgment, that it lacks
subject matter jurisdiction over a removed action, the action must be remanded. 28 U.S.C. §

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1447(c); see Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 389 (1998) (“No court can ignore
the defect [in it’s jurisdiction]; rather a court, noticing the defect, must raise the matter on its own”).
ANALYSIS
Along with the notice of removal, Defendant filed the copy of the complaint with which it
was served. The handwritten complaint is six pages long, however, page 3 of the complaint is
missing. This Court pointed out the omission in an earlier order, and required Defendant to either
file a complete copy of the complaint, or submit a statement indicating that it was not served with
a complete copy. (ECF No. 3.) Defendant filed a statement indicating that it had filed, with the
notice of removal, the copy with which it was served. (ECF No. 4.) This Court then issued a writ
of certiorari to the 9th Circuit Court for Kalamazoo County, ordering the state court to file, with this
Court, copies of all records and proceedings related to this lawsuit. (ECF No. 6.) Again, this Court
noted that page 3 of the complaint was missing. The copy of the complaint received from the state
court is also missing page 3 of the complaint. (ECF No. 8.) The Court proceeds with the version
of the complaint received from both the state court and from Defendant.
Plaintiff seeks an unspecified amount of damages, and has alleged only that the amount-incontroversy exceeds $25,000. (Compl. ¶ 4.) Plaintiff alleges he was employed as a janitor from
February 27, 2012, through April 4, 2012, and that he was never paid. (Id. ¶¶1-2 of Background
Facts.) Plaintiff asserts he quit working because of traumatic experiences at work. (Id. 3 of
Background Facts.). Plaintiff also alleges he was subject to sexual harassment by co-workers, “by
puting [sic] there [sic] hands on plaintiff’s lower back.” (Id. ¶ 11 of Background Facts.)
In paragraph 6 of the notice of removal, Defendant asserts that the amount in controversy
exceeds $75,000. Defendant notes the facts in the complaint identified in the previous paragraph.

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Defendant further notes that Plaintiff seeks both compensatory and exemplary damages.
Defendant has not established, by a preponderance of the evidence, that the amount-incontroversy exceeds $75,000. The complaint does not contain any “clear allegations” that the
lawsuit involves a sum in excess of $75,000. See Hayes v. Equitable Energy Res. Co., 266 F.3d 560,
573 (6th Cir. 2001) (citation omitted). The complaint does not allege Plaintiff’s hourly pay or
otherwise indicate how much money Plaintiff is owed. The Court cannot conclude that Plaintiff’s
claim for backpay or future earnings would meet the amount-in-controversy. Defendant has not
cured these factual omissions as part of its notice of removal. The complaint contains no facts
explaining or developing the traumatic experiences on which Plaintiff’s claim for exemplary
damages might arise. The only allegation in the complaint related to the claim for sexual harassment
is that Plaintiff’s lower back was touched by his co-workers. On this record, the amount-incontroversy required for this Court to exercise subject-matter jurisdiction has not been met and the
doubt as to jurisdiction must be resolved in favor of remand.
Therefore, this matter is REMANDED to the 9th Circuit Court for Kalamazoo County,
Michigan, as this Court lacks subject-matter jurisdiction. IT IS SO ORDERED.

Date:

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

December 2, 2013

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