Turnage v. General Motors LLC et al
Filing
25
ORDER denying without prejudice 2 Motion to Dismiss; denying without prejudice 13 Motion to Amend/Correct; denying without prejudice 14 Motion for Discovery, so that the parties may first address the jurisdictional issues as set forth herein. Signed by Honorable David C. Bramlette, III on 9/6/2017 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ELEANOR TURNAGE
PLAINTIFF
VS.
CIVIL ACTION NO. 3:17-cv-373(DCB)(LRA)
GENERAL MOTORS LLC
DEFENDANT
MEMORANDUM OPINION AND ORDER
This cause is before the Court on the Defendant General Motors
LLC (“GM”)’s Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment (docket entry 2); on the Plaintiff Eleanor Turnage
(“Turnage”)’s Motion for Leave to File Amended Complaint (docket
entry 13); and on plaintiff Turnage’s Motion for Discovery (docket
entry 14).
Having carefully considered the parties’ motions and
responses, the parties’ memoranda and supporting statutory and case
law, as well as the record in this case, and being fully advised in
the premises, the Court finds that before addressing the parties’
motions, it must first address the issue of whether it can exercise
removal jurisdiction over this case.
The Court further finds as
follows:
On March 10, 2017, Turnage filed a Complaint in the Circuit
Court
of
Rankin
County,
Mississippi,
alleging
various
claims
arising from a motor vehicle accident that occurred in December of
2012.
(Docket entry 1, doc.1).
According to GM’s Notice of
Removal (docket entry 1), Turnage served the defendant on April 19,
2017.
(Docket entry 1, ¶ 7).
The Notice of Removal was timely
filed on May 17, 2017.1
A district court enjoys diversity jurisdiction over “civil
actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs[.]” 28 U.S.C. § 1332(a).
The amount in controversy is determined at the time of removal.
Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000).
If a defendant establishes “by a preponderance of the evidence that
the amount in controversy is greater than the jurisdictional
amount,” a plaintiff may defeat removal only by establishing to a
legal certainty that his or her recovery will not exceed the
statutory threshold. In re 1994 Exxon Chem. Fire, 558 F.3d at 378,
387 (5th Cir. 2009)(quotation marks and citation omitted).
Courts generally begin the amount-in-controversy analysis by
“look[ing] only to the face of the complaint and ask[ing] whether
the amount in controversy exceeds” the jurisdictional threshold.
1
28 U.S.C. § 1446(a) provides that “[a] defendant or defendants
desiring to remove any civil action from a State court shall file in
the district court of the United States for the district and division
within which such action is pending a notice of removal signed
pursuant to Rule 11 of the Federal Rules of Civil Procedure and
containing a short and plain statement of the grounds for removal,
together with a copy of all process, pleadings, and orders served upon
such defendant or defendants in such action.”
28 U.S.C. § 1446(b)(1) provides that “[t]he notice of removal of
a civil action or proceeding shall be filed within 30 days after the
receipt by the defendant, through service or otherwise, of a copy of
the initial pleading setting forth the claim for relief upon which
such action or proceeding is based, or within 30 days after the
service of summons upon the defendant if such initial pleading has
then been filed in court and is not required to be served on the
defendant, whichever period is shorter.”
2
Ervin v. Sprint Communications Co. LP, 364 F. App’x 114, 117 (5th
Cir. 2010)(quoting S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d
489, 492 (5th Cir. 1996)).
clause
of
the
In the case sub judice, the ad damnum
Plaintiff’s
Complaint
states
that
she
seeks
“compensatory damages against the Defendant in an amount [to be]
proven at trial, punitive damages against the Defendant in an
amount [to be] proven at trial, pre-judgment and post-judgment
interest, attorney’s fees, costs and expenses, and all other relief
to which the Plaintiff is entitled, both general and special.” The
ad damnum clause does not specify the amount of damages sought.
When, as in the case sub judice, a complaint does not allege
a
specific
amount
of
damages,
“the
party
invoking
federal
jurisdiction must prove by a preponderance of the evidence that the
amount in controversy exceeds the jurisdictional amount”; in this
analysis, the court may rely on “summary judgment-type” evidence to
determine the amount in controversy.
Garcia v. Koch Oil Co. of
Texas, Inc., 351 F.3d 636, 638-39 (5th Cir. 2003); see also St. Paul
Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.
1998)(citations omitted); De Aguilar v. Boeing Co., 11 F.3d 55, 5758 (5th Cir. 1993).
In its Notice of Removal, GM simply recites that this action
“is of a civil nature at law whereby the Plaintiff seeks to recover
damages in excess of $75,000 from the Defendant, exclusive of
interest and costs.”
(Docket entry 1, ¶ 2).
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The Defendant does
not show that it is facially apparent from the Complaint that the
Plaintiff’s claims are likely to exceed the jurisdictional amount;
nor does the Defendant support federal jurisdiction by setting
forth facts that support a finding of the requisite jurisdictional
amount.
The Court notes that the Plaintiff has not filed a Motion to
Remand, nor has she indicated that her claimed damages do not meet
the amount in controversy.
Nevertheless, as the party invoking
federal jurisdiction, GM bears the burden of establishing the
amount in controversy by a preponderance of the evidence, and it
must set forth facts beyond the Complaint to establish federal
jurisdiction.
In Asociacion Nacional de Pescadores a Pequena Escala o
Artesanales de Colombia v. Dow Quimica de Colombia, S.A., 988 F.2d
559 (5th Cir. 1993), the Fifth Circuit held that “at least where the
following circumstances are present, [the removing party’s burden
of establishing diversity jurisdiction] has not been met: (1) the
complaint did not specify an amount of damages, and it was not
otherwise facially apparent that the damages sought or incurred
were likely above [$75,000.00]; (2) the defendants offered only a
conclusory statement in their notice of removal that was not based
on direct knowledge about the plaintiff’s claims; and (3) the
plaintiffs timely contested with a sworn, unrebutted affidavit
indicating
that
the
requisite
amount
4
in
controversy
was
not
present.” (emphasis added).
The presence of a binding affidavit
submitted by the plaintiff that limits her ability to recover more
than the jurisdictional amount would, if offered, place this case
squarely within Dow Quimica’s holding.2
See also Gebbia v. Wal-
Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)(holding that
post-removal affidavits can be considered in determining the amount
in
controversy
if
jurisdiction
is
ambiguous
at
the
time
of
removal); In re Norplant Contraceptive Prods. Liability Litigation,
918 F.Supp. 178, 179 (E.D. Tex. 1996)(holding that a plaintiff can
defeat removal by filing a binding affidavit with her complaint
stating
that
she
will
jurisdictional amount).
not
seek
or
accept
more
than
the
Thus, if so inclined, the Plaintiff may
easily establish this Court’s lack of jurisdiction by submitting an
affidavit.
The Court does not speculate as to whether the jurisdictional
amount is present in this case.
In the absence of an affidavit
2
Basing a decision to remand upon a post-removal affidavit would
not run afoul of St. Paul’s rule which prohibits a plaintiff from
defeating federal jurisdiction by amending his complaint after
removal, although some courts have held otherwise. See Matter of
Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992)(holding that once a
defendant removes a case, St. Paul makes later filings irrelevant);
Unified Catholic Schools of Beaver Dam Educ. Ass’n v. Universal Card
Servs. Corp., 34 F.Supp.2d 714, 718-19 (E.D. Wis. 1999). The Seventh
Circuit decision, however, does not address a situation where the
amount in controversy was initially ambiguous as presented in the
complaint. In such a case, a post-removal affidavit would not be
altering the amount in controversy, but would rather be clarifying it.
See Cross v. Blue Helmets, USA, 927 F.Supp. 209, 214 (E.D. Tex.
1996)(“Damage stipulations filed before a federal district court has
passed upon its determination of jurisdiction are permissible if they
clarify as opposed to amend an original petition.”).
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from the plaintiff stating that she will not seek, nor will she
accept, more than $75,000.00 exclusive of interest and costs, the
parties will be required to produce to the Court all evidence that
they have as to known and ascertainable damages that the plaintiff
is claiming in the present suit.
Additionally, if there is no
affidavit, the parties shall provide the Court with a detailed
description of the full extent of Turnage’s alleged injuries.
After such evidence has been produced, the Defendant will then have
the opportunity to demonstrate to the Court why federal diversity
jurisdiction is proper over this action.
Finally, the Court notes that Count V of the Plaintiff’s
Complaint alleges a violation of the Magnuson-Moss Warranty Act
(“MMWA”).
State and federal courts have concurrent jurisdiction
over claims brought pursuant to the MMWA. Section 2310(d)(3)(B) of
the MMWA provides that no claim is cognizable under the MMWA in
federal
court
$50,000.00.
unless
the
amount
in
15 U.S.C. § 2310(d)(3)(B).
controversy
is
at
least
As with her other claims,
the Plaintiff offers only vague jurisdictional facts, alleging that
the Defendant “breached [its] implied warranties in that the
Plaintiff’s 2010 Chevrolet Traverse was defective”, and “[a]s a
direct and proximate result of said breach, the Plaintiff has
suffered damages including but not limited to personal injuries,
damage to her 2010 Chevrolet Traverse, and economic losses all in
an amount to be proven at trial.”
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(Docket entry 1, doc.1 ¶¶ 59-
60).
Also as with her other claims, the Plaintiff is entitled to
file a binding affidavit that limits her ability to recover more
than $50,000.00, the jurisdictional amount applicable to MMWA
claims in federal court.
In the absence of such an affidavit, the
parties will be required to produce to the Court all evidence that
they have as to known and ascertainable damages that the plaintiff
is claiming in her MMWA claim.
Additionally, if there is no
affidavit, the parties shall provide the Court with a detailed
description of the full extent of Turnage’s alleged injuries
applicable to the MMWA claim.
produced,
the
Defendant
will
After such evidence has been
then
have
the
opportunity
to
demonstrate to the Court why federal diversity jurisdiction is
proper over the MMWA claim.
Based on the reasoning and authority set forth above, the
Court finds that there is insufficient evidence as to what the
actual amount in controversy is in this case. Therefore, the Court
requires more information from the parties before it can rule on
the jurisdictional issue.
Accordingly,
IT IS HEREBY ORDERED that the Plaintiff has five (5) days from
entry of this Order to file a Notice to this Court indicating
whether or not she intends to submit a binding affidavit limiting
her recovery from the defendant to less than $75,000.00 exclusive
of interest and costs (as to all claims except the MMWA claims);
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FURTHER ORDERED that the Plaintiff also has five (5) days from
entry of this Order to file a Notice to this Court indicating
whether or not she intends to submit a binding affidavit limiting
her recovery from the Defendant to less than $50,000.00 exclusive
of interest and costs (as to her MMWA claims);
FURTHER ORDERED that if the Plaintiff indicates in her Notice
or Notices that she will not file a binding affidavit or affidavits
limiting her recovery below the jurisdictional amount(s) of this
Court ($50,000.00 as to the MMWA claim, and $75,000.00 as to the
remaining claims), then both parties shall produce evidence to this
Court within ten (10) days of service of such Notice, demonstrating
all known and ascertainable damages which the Plaintiff may seek in
this case, including descriptions of the extent of Turnage’s
injuries and all medical expenses that she has incurred as a result
of
the
December
2012
motor
vehicle
accident
(allocating
the
injuries and medical expenses as applicable to (1) the MMWA claim
and (2) the remaining claims accordingly);
FURTHER ORDERED that the Defendant has seven (7) days from the
service of the Plaintiff’s response to show cause to this Court why
it has subject matter jurisdiction and why this case as a whole
(or, in the alternative, either the Plaintiff’s MMWA claims or the
Plaintiff’s remaining non-MMWA claims) should not be remanded to
the Circuit Court of Rankin County, Mississippi;
FURTHER
ORDERED
that
because
8
the
jurisdictional
issues
discussed herein must be decided preliminarily to the exercise of
removal jurisdiction by this Court, Defendant GM’s Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment (docket
entry 2), Plaintiff Turnage’s Motion for Leave to File Amended
Complaint (docket entry 13), and Plaintiff Turnage’s Motion for
Discovery (docket entry 14) are DENIED WITHOUT PREJUDICE.
SO ORDERED, this the 6th day of September, 2017.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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