Anderson v. B & G Backhoe, Inc. et al
Filing
15
ORDER sua sponte addressing subject matter jurisdiction Signed by Honorable David C. Bramlette, III on 5/31/2018 (ECW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
ELLIS ANDERSON
PLAINTIFF
VS.
CIVIL ACTION NO. 5:18-cv-7(DCB)(MTP)
B & G BACKHOE, INC.,
and OTIS PARNELL
DEFENDANTS
ORDER
This cause is before the Court sua sponte to address the issue
of subject matter jurisdiction.
Order
(docket
entry
13)
The Court previously entered an
finding
that
the
total
amount
of
compensatory damages claimed by the plaintiff is $12,740.00, and
that the defendants have not presented any summary judgment type
evidence in support of this Court’s exercise of federal diversity
jurisdiction.
The Court further found that it is not facially
apparent
the
from
plaintiff’s
Complaint
that
the
amount
in
controversy exceeds $75,000, exclusive of interest and costs.
The court allowed the plaintiff to file an affidavit limiting
his recovery in this action to $75,000, exclusive of interest and
costs.
Instead, the plaintiff’s attorney filed an affidavit on
behalf of his client, stating “I agree to limiting the recovery of
[Ellis Anderson’s] case to $75,000, exclusive of interest and
costs.”
(Docket entry 14).
The plaintiff did not file an affidavit as directed by the
Court. “[S]tatements of counsel do not constitute competent summary
judgment evidence.”
See Roberts v. Walthall County General Hosp.,
96 F.Supp.2d 559, 561 (S.D. Miss. 2000).
the
plaintiff,
and
not
his
counsel,
A stipulation signed by
regarding
the
amount
in
controversy, would constitute competent evidence and should resolve
any question that might arise as to the binding effect of the
stipulation in subsequent proceedings.
Cf. Boyd v. Dolgencorp,
Inc., No. 5:12-cv-48, 2012 WL 3779952, at *3 (S.D. Miss. Aug. 31,
2012)(finding that an affidavit executed by the plaintiff’s counsel
could not bind the plaintiff, “who can circumvent the affidavit’s
intended
effect
by
finding
another
attorney
to
amend
the
complaint”).
The Court therefore finds that it will allow the plaintiff
fourteen (14) days to file an affidavit with this Court establishing
that the amount in controversy does not exceed $75,000.
plaintiff’s
affidavit,
to
be
effective,
must
state
The
without
qualifiers or equivocation that he is not seeking an amount greater
than $75,000, exclusive of interest and costs; and that he will not
amend his complaint to seek damages in excess of $75,000, exclusive
of interest and costs, for damages of any kind as a result of the
circumstances alleged in the Complaint.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff has fourteen (14) days
from the date of entry of this Order to file an affidavit with the
Court limiting his recovery in this action to $75,000, exclusive of
interest and costs.
The Court will remand this action to the
2
Circuit Court of Pike County, Mississippi, if the plaintiff files
such an affidavit.
SO ORDERED, this the 31st day of May, 2018.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
3
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