Wilder v. Fountainbleau Management Services, LLC
Filing
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MEMORANDUM OPINION re 14 Order on Motion to Remand to State Court, Order on Motion in Limine. Signed by Neal B. Biggers on 09/20/2011. (llw)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
DEBRA WILDER, Individually and
as the Guardian and Next Friend of
MARASIA HARRIS AND JORDAN
SHINAULT
V.
PLAINTIFFS
CIVIL ACTION NO. 1:10CV297-B-S
FOUNTAINBLEAU MANAGEMENT
SERVICES, LLC
DEFENDANT
MEMORANDUM OPINION
Presently before the court is the plaintiffs’ motion to remand and the defendant’s motion
in limine to exclude the plaintiffs’ stipulation from consideration in ruling upon the plaintiffs’
motion to remand. Upon due consideration of the motions, responses, exhibits, and supporting
and opposing authority, the court is ready to rule.
Factual and Procedural Background
The plaintiffs, Debra Wilder and her two minor children, filed this suit in the County
Court of Lee County, Mississippi, on October 7, 2010, asserting claims for negligence, gross
negligence, breach of the implied warranty of habitability, and emotional distress against the
defendant, Fountainbleau Management Services, LLC, the company which managed the
apartment complex in Tupelo, Mississippi, where the plaintiffs resided. The plaintiffs seek
actual and punitive damages in an amount “not to exceed $75,000, exclusive of court costs and
fees.”
The defendant timely removed the case to this court on November 15, 2010, asserting
diversity of citizenship jurisdiction pursuant to 28 U.S.C. § 1332, and alleging that despite the
complaint’s prayer for relief, “the actual amount in controversy exceeds $75,000 exclusive of
interest and costs.”
The plaintiffs have filed a motion to remand to state court and a stipulation signed by
Debra Wilder stating she and her minor children “do not seek and will not accept an award in
their favor and against Defendant in excess of $75,000.00, exclusive of costs.” In addition to
opposing the motion to remand, the defendant has filed a motion in limine to exclude the
plaintiffs’ stipulation from the court’s consideration. The plaintiffs also request attorney fees
and costs of litigating the motion to remand in light of the allegedly improper removal.
Analysis
“[A]ny civil action brought in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the defendant or the defendants, to the
district court of the United States for the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a). A district court has “original jurisdiction of all civil
actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a)(1).
It is uncontested that complete diversity of citizenship exists in the case sub judice.1 The
issue before the court concerns only the amount in controversy. The defendant contends it is
“facially apparent” that, “[n]otwithstanding Plaintiffs’ recitation in their Prayer for Relief, the
actual amount in controversy exceeds $75,000.00, exclusive of interest and costs.”
“[R]emoval statutes are to be construed strictly against removal and for remand.” Eastus
v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir. 1996). “The intent of Congress
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Plaintiffs are residents of the State of Mississippi. The defendant is a Louisiana corporation.
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drastically to restrict federal jurisdiction in controversies between citizens of different states has
always been rigorously enforced by the courts.” Garcia v. Koch Oil Co. of Texas, Inc., 351 F.3d
636, 638 (5th Cir. 2003) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288
(1938)). The removing party bears the burden of establishing the basis for diversity jurisdiction.
Id. See also De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995). As to the amount in
controversy, “unless the law gives a different rule, the sum claimed by the plaintiff controls if the
claim is apparently made in good faith.” Garcia, 351 F.3d at 638 (quoting St. Paul Mercury, 303
U.S. at 288). “[T]he plaintiff’s claim remains presumptively correct unless the defendant can
show by a preponderance of the evidence that the amount in controversy is greater than the
jurisdictional amount.” De Aguilar, 47 F.3d at 1412.
The plaintiff who “does not desire to try his case in the federal court...may resort to the
expedient of suing for less than the jurisdictional amount, and though he would be justly entitled
to more, the defendant cannot remove.” St. Paul Mercury, 303 U.S. at 294. This is precisely
what the plaintiffs in the present case have done. The defendant has presented no evidence to the
court indicating that the plaintiffs have failed to act in good faith in seeking less than the amount
required for federal jurisdiction or that the actual amount in controversy is greater than $75,000.
The defendant argues that it has nevertheless met its burden because it is “facially apparent” that
the amount exceeds $75,000.2 The court finds to the contrary, however, as the complaint
explicitly seeks damages “not to exceed $75,000,” and the defendant has offered only conclusory
allegations to support its “facially apparent” argument. “Removal...cannot be based simply upon
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See Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (Removing defendant may
make showing that amount in controversy exceeds $75,000 by demonstrating that it is “facially apparent”
that the claims are likely above that figure.).
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conclusory allegations.” Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335. Because the
defendant has not met its burden of proof, the court finds that the plaintiffs’ motion to remand is
well taken and should be granted.
The defendant has also moved to exclude the plaintiffs’ stipulation from this court’s
consideration in ruling upon the plaintiffs’ motion to remand. The court’s consideration of the
plaintiffs’ stipulation was unnecessary since the defendant did not prove by a preponderance of
the evidence that the amount in controversy requirement is met. The motion in limine is
therefore moot.
Finally, the plaintiffs have requested attorney fees and costs pursuant to 28 U.S.C. §
1447(c) in regard to their motion to remand. The statute provides in pertinent part as follows:
“An order remanding the case may require payment of just costs and any actual expenses,
including attorney fees, incurred as a result of the removal.” The standard the court must apply
in making a determination on this issue turns on the reasonableness of the removal. Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005). “Absent unusual circumstances, courts may
award attorney’s fees under § 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists,
fees should be denied.” Id. In the present case, the court finds that the removing defendant had
objectively reasonable grounds to believe that removal was proper. Attorney fees and costs are
therefore not warranted, and the plaintiffs’ request will be denied.
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Conclusion
For the foregoing reasons, the court finds that the plaintiffs’ motion to remand is well
taken and shall be granted. The defendant’s motion in limine is moot, and the plaintiffs’ request
for attorney fees and costs is denied. A separate order in accord with this opinion shall issue this
day.
This, the 20th day of September, 2011.
/s/ Neal Biggers
NEAL B. BIGGERS, JR.
UNITED STATES DISTRICT JUDGE
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